Selah Group LLC | Electronic Estimate Acceptance and Agreement
SELAH GROUP, LLC | GENERAL TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS: Selah Group, LLC, d.b.a. Selah Pools, its employees, affiliates, or sub-contractors ("Company") agree to provide services for the Landowner or Contract Signatory ("Owner") under the Scope of Work ("Work") described in this agreement, by the specifications set forth herein, at the agreed project location ("Site").
AGREEMENT: On the Effective Date, The Owner hereby directs The Company to begin drafting the plans, submitting construction permit applications, and proceeding in a manner necessary to start the Work on the agreed-upon Site described in the Estimate.
1) SAFETY IS PARAMOUNT
a) The Owner is solely responsible for maintaining safety and barriers to access any portion of the Site before, during, and after the duration of the Work. Accidents, injury, loss, theft, or other unintended consequences arising from the Work contemplated in this agreement are solely the responsibility of The Owner.
b) Child and pet safety is critical. The owner must protect any and all Work areas, including access and routes to and from the Site, from exposure to children, pets, or trespassers.
c) The Owner must be alert and immediately communicate all potential hazards or observations of unsafe conditions to The Company. If you need help securing your Site or there are special considerations, please communicate and coordinate the proposed solutions with The Company.
2) SAFE OPERATION
a) Upon completion of the work, the company may provide a one-time, on-site training overview of operating the owner’s equipment. The Owner will also receive the operating and maintenance literature of the major equipment.
b) In addition to the initial training and materials, the company offers extended training and has service professionals available to the owner.
c) The Company encourages Owners to participate actively in the provided training and thoroughly study their equipment's operation manuals. This is crucial as the Owner is ultimately responsible for the equipment's safety, longevity, and effective operation.
3) PET AND ANIMAL SAFETY
a) The Owner is the sole party responsible for the safety and confinement of pets and livestock (referred to as Domestic Animals).
b) The Company strongly advises the Owner to keep Domestic Animals from the Site throughout the Work. The Owner should utilize temporary fencing, guards, or other barriers to prevent all types of animals from entering the Site or escaping their property at any point during the Work.
c) The Company is not responsible for any harm, injury, escape, or loss of pets, livestock, or wild animals before, during, or after the Work on the Owner’s site. The Owner is responsible for any harm, injury, or loss from domestic or wild animals entering the work site.
5) TERM OF COST ESTIMATE
a) Cost Estimates outlined as part of this agreement will be valid and binding for thirty (30) days from the date of their issuance or in the case of any changes, amendments, and additions (“Overages”) for ninety (90) days concerning such Overages.
b) If Work is not commenced within thirty (30) days from the date of the agreement or if any Work is postponed for more than sixty (60) days at the request of The Owner or because of events or causes outside the control of The Company, then the cost Estimate shown on this agreement shall not be binding upon The Company.
c) The Owner agrees to renegotiate the Estimates in this agreement should The Company make such a request.
6) BASIS OF ESTIMATE
a) The Company and The Owner agree that the Estimate quoted by The Company is based on several factual assumptions by The Owner about the Work site. These include its load-bearing capacity, absence of low-density alluvial fill or fill ground, absence of earth or fill ground movement, absence of hard rock formation or boulders, absence of utilities or obstructions, absence of underground or surface water conditions, no need for jackhammer Work or explosives, and adequate access for all trucks and equipment.
b) If any of these assumptions are found incorrect and additional Work or materials are required, The Company may perform, provide, or install them. The Parties will agree when an Overage may be added to the base Estimate.
c) Alternatively, if any assumptions are found incorrect, The Company may terminate this agreement with no further liability or obligation to The Owner. However, if The Company has begun Work, The Owner shall be liable to The Company for no less than Five Thousand Dollars ($5,000) as liquidated damages. a) Alternatively, The Parties may amend the Estimate by mutual consent.
7) OWNER RESPONSIBILITIES: OWNER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE COMPANY AND THAT THE COMPANY IS NOT RESPONSIBLE FOR DAMAGES OR UNFORESEEN CONSEQUENCES ON THE SITE, INCLUDING BUT LIMITED TO PREEXISTING CONDITIONS, SUCH AS POOR SOIL CONDITIONS AND THEIR EFFECTS, INCLUDING BUT NOT LIMITED TO HEAVING, SINKING, CRACKING, BROKEN PIPES, OR "POOL POPPING," SHIFTING, OR SINKING, ANY DRAINAGE, IRRIGATION, LANDSCAPING, LAWNS, SHRUBS, DRIVEWAYS, CURBS, SIDEWALKS, SEWERS, SEPTIC TANKS, FLAGS OR FLAGPOLES, FOUNTAINS OR STATUES, ORNAMENTS, ACCESSORY STRUCTURES OF ANY KIND, LIGHTING OR LOW VOLTAGE LIGHTING, PATIOS, DECKS, STRUCTURES, IMPROVEMENTS OR APPURTENANCES, IN THE WORK OR ACCESS AREA. NOR TELEPHONE, INTERNET, TELEVISION, OR OTHER LOW VOLTAGE UTILITIES, NOR PROPANE, NATURAL GAS, OR HIGH VOLTAGE POWER UTILITIES OR SOLAR POWER SYSTEMS, NOR WELLS, SUMPS, OR MUNICIPAL WATER SYSTEMS. NOR VEHICLES OR RECREATIONAL VEHICLES OF ANY KIND. NOR THE EFFECTS OF WEATHER, INCLUDING STORM WATER RUNOFF OR OTHER ACTS OF GOD. THE OWNER IS RESPONSIBLE FOR TAKING SUCH ACTION AS THE OWNER DEEMS NECESSARY TO PROTECT ANY AND ALL FROM DAMAGE.
8) PAID WHEN PAYMENT IS DUE
a) If any payment due to The Company is not paid when due, The Company may declare the entire principal balance of any obligation due by The Owner to be immediately due and payable.
b) If The Company needs to hire legal counsel to enforce any term of this agreement or to defend against any action by The Owner, and if The Company prevails, then The Owner agrees to pay all reasonable attorney fees, costs, and expenses incurred by The Company.
c) This agreement is not contingent upon The Owner obtaining financing. The Owner is solely responsible for any such financing and the cost, if any, to obtain such funding.
9) PULL OFF CHARGES FOR DRAW PAYMENT DELAY
a) In the event of a delay in draw payment, before the commencement of Work in a draw payment phase, the Company reserves the right to impose a charge (referred to as “the Pull Off Charge.”)
b) The Pull Off Charge is typically a nominal $500 fee that the Owner must add to the draw payment before the work schedule.
c) PLEASE NOTE: In addition to the Pull Off Charge, the work schedule will be affected, and Work could be delayed for weeks due to the rescheduling of resources.
10) EQUIPMENT PLACEMENT
a) Any equipment or utilities that may be installed will be in a location designated by The Owner. The Owner warrants and represents to The Company that they are familiar with the location of all property lines, that the Site agreed upon is within said property lines, and that no part of the Work, equipment or utilities, once installed, will conflict with an easement or be on the property of another, and is free and clear of any buried utilities outside of an easement.
b) The Owner agrees to defend, indemnify, and hold harmless The Company from any suit, action, or claim of The Owner or any third person, firm, or corporation for the location of said Work and the use by The Company of any access areas in the place(s) designated by The Owner.
c) Unless otherwise noted in the Estimate, The Owner is responsible for any costs for locating, removing, repairing, or relocating underground or above-ground utilities, including sanitary and sewer lines, irrigation and potable water lines, aerators, and septic systems.
11) TEMPORARY ACCESS AND WORKSPACE
a) Should The Company require or The Owner desire the temporary use or access to conduct Work on any property that The Owner does not lawfully control, The Owner will secure written permission for such use or access from the property landowner(s) before using or accessing such property.
b) The Owner is solely responsible for any costs associated with said use. Permission agreements, terms, or stipulations for said temporary use would be delivered to The Company for review and approval before said use.
c) In any case, The Owner agrees to indemnify and hold The Company harmless for any damages, suits, claims, or other actions brought by the landowner(s) or any third party concerning the use thereof by The Company.
12) ACCESS AND UNAUTHORIZED ACCESS
a) The Owner is responsible for maintaining barriers to entry or other means to prevent unauthorized access to the Site during days and hours when Work is not being conducted.
b) The Owner agrees to maintain the security of their Site and property, including The Company equipment, tools, personnel, and materials, as they would before and after Work is completed.
13) INTELLECTUAL PROPERTY
a) Any cost estimates, this agreement, plans, permit drawings, electronic renderings, presentations, or any supporting work product arising from the engagement of The Parties remain the sole property of The Company. They are not authorized for reproduction or distribution without The Company’s written consent. All plans, electronic renderings, or sketches of any kind are Artists Concepts (Concepts), are copyright protected, and remain the property of The Company.
i) NOTE: Concepts, plans, or renderings may include features or depictions not offered as work, materials, or products being offered for sale or otherwise deliverables in an estimate.
b) The Company routinely utilizes digital voice recordings within our showroom, design studio, and field operations. Additionally, phone conversations are recorded, and text messages and other written forms of communication are incorporated into corporate systems. By engaging with The Company, The Owners, clients, and prospective clients acknowledge and consent to the collection, storage, and use of these recordings and messages for business purposes, including but not limited to quality assurance, training, and compliance.
c) The Owner grants The Company all rights, titles, and interests in all photographic images, videos, or audio recordings made by The Company for promotional or other purposes, releasing all copyright or other claims to such materials.
d) The Owner grants permission for such photography or videography to be conducted before, during, or up to three years after the work is completed.
14) NO OBSTRUCTIONS
a) When the Company commences work, The Owner agrees to provide The Company with a site free of obstructions and debris.
b) Unless specifically outlined in the Estimate, The Company is not required to grade The Owner’s property or remove any natural or other obstructions to the Work. This includes but is not limited to accessory structures and appliances such as air conditioning compressors and propane or septic tanks.
15) USE OF EXISTING MATERIALS
a) The Owner may request, and The Company, at its discretion, may attempt to use natural or man-made materials supplied by The Owner. These existing materials, if used, will be on an “as is, where is” basis, and any extraordinary effort required will result in an Overage charge.
b) No warranty claims will be offered or applied, and no effort will be made to match colors, textures, or other attributes when using existing materials.
16) LIMITATIONS TO THE WORK
a) The Company is not responsible for any conditions at the Site caused by existing or proposed improvements.
b) Any additional engineering and construction Work required due to these conditions will be at The Owner’s sole cost and expense.
c) This agreement does not include the installation of any fence, walk, deck, patio, drywall, waste system, foundation Work, irrigation or irrigation re-routes, drain systems or stormwater management, or any other home or structure foundation improvements or appurtenances unless otherwise specified in the Estimate.
17) OVERAGES AND ADDITIONS TO THE WORK
a) Any Work beyond that explicitly outlined in the Estimate must be authorized in writing by The Owner and accepted by The Company before it commences. Payment for such additional Work will be considered an Overage, and any Overage payments are due before the start of the Work.
b) The Owner should not at any time direct Workers on the site to make changes or conduct Work of any kind, whether the Work is described in the Estimate or not.
c) In the case of an Overage directed by The Owner and conducted without written authorization, The Owner agrees to pay The Company for the additional Work at a price determined by The Company at any time after the Work is begun.
18) ADDITIONS AND CHANGES OF UTILITY OR SERVICE
a) If deemed necessary or at The Owner’s request, an increase or upgrade of electrical panel breakers or other utility services, or removal of any wiring, equipment, or other utility supplies, unless specifically provided for in this agreement, is to be paid as an Overage by The Owner.
b) The Company may occasionally access existing electrical power or water services on the Site. The Owner agrees to make such utility access available for Work-related activities.
19) MANUFACTURERS & MATERIALS WARRANTY
a) Equipment and materials installed as part of this agreement are warrantied exclusively by the equipment manufacturer or material supplier. Service, repair, or replacement of such equipment or material not covered by the manufacturer’s warranty is solely at The Owner’s discretion and expense.
b) Any repair or replacement required due to mistreatment or neglect shall be at The Owner’s expense.
c) Any expense associated with equipment and materials, damage, loss, or theft, becomes The Owner’s responsibility when the equipment or material is delivered to the Site.
21) CONCRETE CONDITIONING
a) On request, The Company will provide The Owner with instructions concerning the moist curing (Conditioning) of a concrete or Gunite structure Work. The Owner will be responsible for following these Conditioning instructions and the expense of any issues that may occur if the instructions are not followed.
b) Unless otherwise noted in the Estimate, The Owner will be responsible for filling a pool, spa, or other concrete or Gunite water vessel as part of the Work product described in this agreement. Consult The Company for guidance on how and when to do this.
c) PLEASE NOTE: Some municipalities may waive the utility costs of filling a pool when The Owner advises the utility authority of their intention to fill a pool. Consult your local municipality guidelines immediately to determine if and how you, as The Owner, may mitigate these costs.
22) PRINCIPAL WORK AUTHORITY
a) The Company shall not be responsible for, and The Owner agrees to and does hereby hold The Company harmless for any damages relating to any manner or Work performed on The Owner’s property by persons other than The Company, its agents, or representatives.
23) FIELD MODIFICATIONS
a) The Company retains the authority to implement necessary alterations to any design or Work. This includes but is not limited to on-the-spot adjustments (Field Modifications.)
b) Field Modifications may result in an additive or deductive Change Order(s). If the Change Order is significant, the company may issue it to The Owner for approval.
c) In any case, The Company shall have the sole and exclusive authority to determine, in its reasonable discretion, the necessity and implementation of a Field Modification.
d) Field Modifications may include adjustments that affect the depth of the water vessel or the elevations on the Site, including any hardscapes. The Company will try to keep to the desired depths and elevations, but because we’re working with native soils and terrain, Field Modifications of these sorts are common.
24) THIRD PARTIES AND SPOILAGE DISPOSAL
a) Covenants or agreements that may exist or arise between you, as the property Owner, and any Homeowner's Association (HOA), your neighbors, or any other regulatory body are solely between you and that party. This includes, but is not limited to, homeowners’ associations, neighbors, and materials spoilage and disposal.
b) The Company will not represent or engage directly on your behalf in any agreements or representations made to an HOA or neighbor. Compliance with HOA guidelines, permit applications, permits, etc., is the sole responsibility of the property Owner.
c) The Owner is responsible for any special requirements regarding the approved disposal of materials and spoilage (Disposal), especially in excavation or demolition Work on the Site.
d) The Company will adhere to special requirements for proper Disposal of such materials only when the Owner specifically includes these requirements in this agreement and addresses any extraordinary costs.
e) If no special disposal requirements are noted in this agreement, The Company will manage it commonly and responsibly at its discretion.
f) Beyond special requirements, an Owner may request that spoilage be kept on their property. In this case, they will be responsible for its safe and compliant management.
25) CODE COMPLIANCE AND INSPECTIONS
a) For inspections at various stages of Work, the Owner agrees to make the Site safe and accessible and may be asked to participate with the Company during an inspection. The Parties are aligned in the need for health & safety inspections and agree to work together for any necessary corrective actions that may arise.
b) Inspectors may resort to “the most restrictive” code interpretation in disputes. While ensuring safety and compliance, this practice can be complex because the inspectors can choose the “most restrictive” interpretation of a municipal, state, or national code. In all cases, the Parties agree to act responsibly and professionally in all matters of code compliance and inspections.
c) As the Owner, you are generally not required to participate in inspections beyond making the site accessible and safe. The Company representatives will schedule and may conduct the assessments on your behalf and then notify The Owner of any corrective actions.
26) WORK DELAY AND FORCE MAJEURE
a) The Company is not responsible for delay or failure to perform Work due to acts of God, strikes, war, civil unrest, government prohibition, work stoppage by court order, inability to obtain materials, changes in law or regulations, effects of zoning ordinances or zoning variances, inclement weather, or other reasons beyond its control (Force Majeure).
b) The Owner provides necessary variances, easements, waivers, zoning changes, association permits, municipal waivers, and regulatory guidance. The Owner’s sole responsibility and cost shall be any attorney fees or other costs or expenses incurred in obtaining any of these items.
c) The Owner shall cooperate with The Company concerning all permit applications and regulatory compliance. In some cases, The Company will provide material support on The Owner’s behalf to overcome regulatory, landlord, or HOA compliance. However, The Company does not assume liability, assert authority, or is otherwise responsible for any outcome by participating on The Owner’s behalf.
27) TERMINATION FOR CONVENIENCE
a) The Company, at its sole discretion, reserves the right to terminate this Contract for any reason or no reason at all. It may provide The Owner with a written notice of the reason for the termination.
b) Upon exercising this right, The Company will stop all Work and remove any materials, equipment, or tools from the Project Site within a reasonable time, not exceeding ninety (90) calendar days from the termination date.
c) The Owner will compensate The Company for all Work performed and any materials, equipment, or tools procured or provided by The Company up to the termination date, plus a reasonable termination fee agreed upon by the Parties. The termination fee will be based on a percentage of the total Contract Price and will be due and payable within thirty (30) calendar days of the termination date.
d) Upon payment of the termination fee, The Owner and The Company will have no further financial obligations to each other concerning the Work. All other terms and conditions of this agreement may remain valid and enforceable.
e) This termination for convenience should not be construed as a waiver of any other rights or remedies The Company may have under this Contract, at law, or in equity.
28) WARRANTY VOID AND WORK STOPPAGE FOR NON-PAYMENT
a) If payment is not received for any part of the Work, including Changes and Change Orders, all non-manufacturer warranties will become void. Furthermore, any repairs or other Work efforts will stop until full payment is received.
29) NON-DISPARAGEMENT
a) Time is of the Essence: The Owner agrees to communicate any issues or concerns with the Work conducted by The Company promptly and only during regular business hours, except in an emergency or serious safety concern.
b) The Owner agrees not to use any form of communication to insult, disparage, or speak negatively of The Company, its owners, its owners’ family, officers, directors, employees, affiliated companies, or the service providers herein, during the Term or after the termination or expiration of this agreement.
c) The Owner agrees that the Site is considered a workplace for the duration of the Work and will be free of a hostile work environment that may affect The Company’s ability to perform its Work.
d) The Company takes its reputation seriously. If any issues arise before, during, or after the commencement of Work on the Site, The Owner is asked to communicate privately and directly with The Company and work collectively to resolve the issue professionally.
e) The Company shall have the sole and exclusive authority to determine, in its reasonable discretion, whether any comment or statement in any form made by any party disparages the company’s image, reputation, or operations and if any conduct constitutes a hostile work environment.
30) REMEDY FOR BREACH
a) Addressing Potential Agreement Defaults: We acknowledge that the complexities of business relationships can sometimes lead to unforeseen challenges. If difficulties arise in fulfilling the terms of this agreement, our primary goal is to work together to find a resolution.
b) Quantifying the Impact of a Default: We recognize that quantifying the impact of a default can be challenging. To provide clarity and fairness to both parties, we propose a maximum compensation limit of Seventy-Five Thousand Dollars ($75,000) in case of a default.
c) Maintaining Mutual Cooperation and Respect: This approach provides both Parties with a clear path forward should any issues arise. It keeps the spirit of our cooperation and respect and aligns with our shared commitment to a fair and equitable business relationship.
32) PROPERTY AND MECHANICS LIENS
a) Property Lien: Lenders may sometimes apply for a property lien in the ordinary course of their business. This lien is between the Owner and the lender. However, the Company is available to assist. The Owner can contact a Company representative to aid in a Lien release.
b) Mechanic Lien: This is a legal claim against the Owner’s property, essentially a security interest, ensuring payment for Work. Once the debt is paid, the Company should file a lien release. This document shows that the lien has been paid and requests that it be removed from the public record.
33) RIGHT TO ARBITRATION
a) Dispute Resolution: In case of a dispute arising from this agreement or if The Company’s written offer to repair or settle is deemed unreasonable by The Owner following a complaint notice, the parties agree to resolve such dispute through arbitration. This arbitration will be administered by the American Arbitration Association, adhering to its Commercial Arbitration Rules. The arbitration hearing will be held in Fort Worth, Texas, before a single arbitrator. The parties will jointly select the arbitrator, who must be a lawyer with a minimum of five years of experience in commercial law. Arbitration demands cannot be made after the date when the relevant statute of limitations would prohibit such a claim or dispute.
b) Arbitrator’s Limitations: The arbitrator is not permitted to award the prevailing party an amount exceeding the economic damages directly caused by a defect, as determined by: i) The reasonable repair costs to rectify any construction defect. ii) The necessary cost for replacing or repairing damaged goods at the Site. iii) Reasonable and necessary engineering and consulting fees. iv) The decrease in current market value, if any, after the construction defect is repaired. v) Reasonable and necessary attorney’s fees. vi) Punitive damages. vii) Other damages not measured by the prevailing party’s actual damages.
c) Court Intervention: A court with jurisdiction may enter judgment on the award rendered by the arbitrator. The arbitrator will require the disclosure of non-privileged materials, including digital information, relevant to any party’s claim or defense, subject to limitations based on reasonable expense, duplication, and undue burden.
d) Arbitration Expenses: If the arbitrator determines that a party has generally prevailed in the arbitration proceeding, the arbitrator will award the prevailing party its reasonable arbitration-related expenses, including filing fees, arbitrator compensation, attorney’s fees, and legal costs. If the arbitrator finds that the complainant initiated the proceeding based on groundless claims brought in bad faith or for harassment purposes, the arbitrator will award the other party its reasonable arbitration-related expenses, including filing fees, arbitrator compensation, attorney’s fees, and legal costs.
e) Confidentiality: The parties must keep the arbitration proceedings and arbitration award strictly confidential, except as required by court order or as necessary to confirm, vacate, or enforce the award and for confidential disclosure to the parties’ respective attorneys, tax advisors, and The Company senior management, and to family members of a party who is an individual.
34) ENTIRE AGREEMENT
a) Complete Agreement: This agreement, associated documents, material choices, and any attached drawings and specifications form the complete agreement between The Owner and The Company. No other agreements, whether written or verbal, exist between the Parties. If there’s a discrepancy between any descriptions provided in the plans, permit applications, or specifications and those in this agreement, the descriptions and terms of the Estimate will prevail.
b) Changes and Amendments: Apart from Field Modifications, any significant changes or amendments to this agreement, as well as the plans or specifications issued after this agreement, can only be made in writing and must be signed by both Parties.
c) Communication: Text messages, email messages, or other informal communications initiated by The Owner are not considered valid substitutes for an amendment to this agreement under any circumstances.
35) SEVERABILITY OF THIS AGREEMENT
a) Invalid or Unenforceable Provisions: If any provision of this agreement is, for any reason, held invalid or unenforceable in any respect, the invalidity or unenforceability will not affect any other provision of this agreement. This agreement will be construed as if the invalid or unenforceable provision had not been included.
