All Proposals, Estimates, Designs, Work Authorizations, Change Requests, Change Orders, or any other form (in any media) for entering contracts for goods or services from Smart Outdoor Living, Inc. (“Contracts”) are expressly subject to the terms and conditions (“Terms and Conditions”) set forth herein. Smart Outdoor Living, Inc. is hereafter referred to as “SOL”, and the original individual or entity requesting the goods or services of SOL (collectively, “Services”) is hereafter referred to as “Customer.”
OFFER AND ACCEPTANCE. THIS CONTRACT EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND ANY ADDITIONAL OR DIFFERENT TERMS ARE REJECTED UNLESS EXPRESSLY AGREED IN WRITING SIGNED BY AN OFFICER OF SOL, NOTWITHSTANDING ANY PRIOR TRANSACTIONS OR COURSE OF DEALING BETWEEN CUSTOMER AND SOL.
PROPOSALS AND ESTIMATES. SOL may undertake to provide written and/or graphically designed or rendered materials (“Designs”) to a Customer. Such Designs may be provided either as a stand-alone Service at a fixed hourly rate disclosed in advance to Customer, or else to accompany a proposal or estimate provided to Customer (“Proposal” and “Estimate,” respectively), at SOL’s sole discretion. Designs may include, but are not limited to: screenshots, video walkthroughs, 3D renderings, plan view designs, color rendered designs, photographic exemplars, or drawn graphics. Designs separately paid for by Customer or provided in connection with a contracted project shall become the property of Customer at the time of final payment; Designs not thus paid for shall remain the property of SOL. SOL shall retain at all times a non-exclusive license to use photography, videography, and other elements of Designs for SOL’s legitimate business purposes including but not limited to marketing and advertising. Designs are for conceptual purposes only, and may not be drawn to scale with Customer’s property dimensions. Colors, textures, shapes, and dimensions are subject to change based on realworld conditions and materials, and Designs may vary from the finished product in construction and installation details. For any proposal or estimate, SOL may use a budgeted number or placeholder (“Allowance”) to indicate a quantity of time and materials work (“T&M”) dependent on the final work conditions. SOL makes no guarantee as to the timeframe of completion for proposed or estimated work. In particular, all Electrical, Gas Line, and Plumbing work (performed either by SOL staff or subcontractors) shall be noted by an Allowance, and the final T&M amount on the final invoice may differ from the Allowance. T&M work is billed based on the final as-built scope of work, including any changes made during project construction.
AUTHORIZATION OF WORK. SOL will only perform work that is authorized by Customer. Customer authorization must be provided to SOL directly and may be written or unwritten, and may occur via email, text message, verbal instruction, course of conduct, or Customer signature (“Authorization”). Such Authorization shall constitute a binding Contract between Customer and SOL for SOL to perform work in accordance with SOL’s terms and conditions current at the time of Authorization. The details of these terms and conditions can be changed at SOL’s discretion with or without notice to Customer; however, any such changes shall apply only prospectively to work authorized after the change. Customer may not give Authorization to a subcontractor or vendor of SOL to perform work that SOL has already received Authorization to complete without SOL’s prior approval, which may be written or unwritten, and may occur via email, text message, verbal instruction, course of conduct, or SOL signature (“SOL’s Prior Approval”). Customer may only hire a separate subcontractor to perform Authorized work in place of SOL if (i) Customer receives SOL’s Prior Approval to do so and (ii) Customer pays SOL a general SOL fee at a rate commercially reasonable in the field at the time of such hiring (“General SOL Fee”). SOL’s business records of such Prior Approvals shall be presumptive evidence of the final terms of all such SOL’s Prior Approvals or General SOL Fees in the event of any dispute.
WORK INCLUSIONS AND EXCLUSIONS. For any Design, proposal, or estimate, all paint, stain, and finishing work is excluded from the total for any structures or elements described therein or in the Design, unless a separate line item or Allowance is included charging for such items. For any Design, proposal, or estimate involving lighting fixtures, the number of such fixtures is an estimate only, and may increase or decrease based on site conditions, such that final charges will be invoiced based on the actual quantity. For any Design, proposal, or estimate, all furniture, appliances, accessories, or other non-structural elements shown or described are excluded, unless a separate line item or Allowance is included charging for such items. All Service calls by Customer requiring an on-site visit by SOL shall be separately billed at $200 per site visit, plus T&M charges for all work except work explicitly covered by SOL’s limited warranty as stated herein. SOL’s Services exclude prepping the workspace, such as but not limited to moving furniture, concrete footings, demolition and removal of existing structures and etc. unless otherwise noted in the estimate/contract.
ALTERATIONS. No alterations (“Alterations”) shall be made to the StruXure Project or Authorized Work Specifications as shown or described in the drawings or specifications as modified by applicable ordinances, requirements, laws, rules and regulations as set forth herein, except with Customer’s Authorization, and when so made, the value of the Work or materials added or omitted and any extension or deduction from the time of completion necessitated thereby shall be computed and determined by SOL, and the amount so determined shall be added to (if the SOL has not previously agreed to perform the additional Work under the terms of the Contract) or deducted from the Contract price or prices and time of completion. SOL will invoice Alterations based on applicable unit pricing or T&M. SOL may, in its sole discretion, require payment in advance for Alterations calling for additional material, products, or labor prior to SOL accepting and implementing the Alteration.
UNFORSEEN REQUIREMENTS. Should the building department require any changes that would affect the original layout, those changes and subsequent alterations in price will be the responsibility of the Customer. No changes will be considered Authorized until a Change Order is executed and approved by SOL. Should the building department deem Customer’s current survey is unacceptable due to its age, quality or doesn’t reflect renovations made on your current survey, they will require a new survey be completed by a surveying company. Any costs associated with updating Customer’s survey will be the responsibility of the Customer. Customer shall be responsible for obtaining and paying for any required permits and associated engineering or surveying work required by the Contract, per the SOL Terms and Conditions. If SOL has performed for Customer any work that was not properly permitted that required a permit, Customer shall be responsible for any costs necessary to secure the necessary permits and to correct this action. Should the building department require any special inspection (e.g., septic tank inspection, termite inspection, landscape inspection, tree permit or soil density test, etc.), this cost will be the responsibility of the Customer. Should a Customer’s Homeowners Association or Municipality require a deposit for the work performed, it will be the Customer’s responsibility to satisfy said deposit. If the building department requires any modification in the size or layout of the proposed design, the Customer will be notified promptly. SOL is limited by the building department’s final decisions regarding code requirements and restrictions, which are often not clear and consistent in all municipalities.
WORK SUBSTITUTIONS. When Authorized work (“Work”) is portrayed or described in a Design, proposal, or estimate, SOL will use good faith efforts to implement the Work in the context of Customer’s physical site. Changes that materially and substantially alter the general appearance or price of Work will be brought to Customer’s attention prior to be being changed or altered; all other changes may be made at the discretion of SOL without prior Customer notification. Customer agrees that field measurements used for actual installation and construction shall control over Design, proposal, or estimate dimensions or measurements for installation and invoicing. If field measurements during onsite installation call for additional material, installation, or construction, SOL will bill those items T&M on the final invoice. SOL may refer Customer to a separate SOL or subcontractor to perform Work that SOL is unable to complete (“SOL Referral”), including but not limited to Work in-process and declined Change Requests (as defined below). SOL Referrals shall not be subject to a General SOL Fee.
BILLING AND INVOICES. SOL shall issue a final invoice for all Work upon completion. SOL may also at any time issue invoices for partially completed Work based on the percentage of progress on the Work including the value of materials on site. For Work which cannot be fully completed during the current season due to weather or product and material availability, SOL shall issue an invoice based on actual completion of discrete line items and materials delivered, or percentage of overall progress of the Work. In the event that Work cannot be fully completed during the current season due to weather, SOL retains the right to modify the performance and payment schedules set forth in the Customer’s Contract. For all Work which remains incomplete and yet to be performed following the current season, SOL retains the right to invoice and/or hold a deposit equal to or greater than 50% of the remaining Work. If the costs of completing the Work exceed SOL’s initial estimate by more than 3% due to acts of God, labor disturbances, shortages, raw material increases, accidents, fire, delay in transportation, natural disaster, pandemic, epidemic or other conditions or causes of delay which are beyond our control (“Cost Increase”), SOL reserves the right to add a corresponding surcharge reflecting the Cost Increase to Customer’s final invoice.
PAYMENT TERMS. Customer agrees to pay all invoices within ten (10) days of receipt. If Customer fails to dispute an invoice within five (5) days of receiving invoice by providing notice to SOL in writing of the dispute, Customer waives any such dispute. A $30 late payment fee and a 1.5% finance charge will be applied to the Customer’s account for each month payment is late. Customer shall make all checks payable to: Smart Outdoor Living, Inc. All Work that calls for Design, installation, or construction shall require a non-refundable deposit at the time of Authorization. Each non-refundable deposit is given in consideration of SOL’s undertaking planning, preparation, design, and acquisition Services for a given project, and the parties agree that in the absence of specific proof of damages exceeding the deposit, the deposit represents a good-faith estimate of the measure of damages in the event of cancellation by Customer. For multi-stage projects, SOL may require multiple non-refundable deposits. The balance of all non-deposited charges for each stage of a project shall be due following Customer’s receipt of SOL’s invoice for completion of the applicable project stage.
CANCELLATION POLICY. Either party Customer or SOL must give 30 days’ written notification to discontinue Services. SOL reserves the right to discontinue Services and/or to suspend or excuse Customer’s Services due to overdue balances. SOL reserves the right to discontinue Customer’s Services for convenience at any time where commercially reasonable, in SOL’s sole discretion, on the condition that any discrete items of Work then in-process at the time of discontinuation of Customer’s Services for convenience will be completed. All deposits/retainers are non-refundable. Contract balance will be due in full, plus any additional balance on the account along with any rendered Services or additional Work performed. All special ordered StruXure Outdoor, Inc. hereafter referred to as “StruXure” pergola systems or materials are non-refundable and non-cancelable in the event of a cancelation 100% of the StruXure pergola system or material will be invoiced and immediately due to SOL. All special ordered Progressive Screens hereafter referred to as “Progressive” motorized screens or materials are non-refundable and non-cancelable in the event of a cancelation 100% of the Progressive motorized screens or materials will be invoiced and immediately due to SOL.
CHANGE ORDERS. One an order has been placed for a StruXure pergola system, products or materials or Progressive motorized screens the order cannot be modified or changed as everything is custom made to size and exact specifications. Customer may request changes to Work, including but not limited to extending, adding, enlarging, or modifying the Design, proposal, estimate, or previously authorized Work (“Change Request”). SOL reserves the right to decline Change Requests that would, in SOL’s sole discretion, be commercially unreasonable or inconvenient for SOL to complete. Change Requests may be made by any method sufficient for Customer Authorization, and upon acceptance and implementation by SOL, shall constitute Authorization to add the Change Request to the Work, and a commitment by Customer to pay SOL for the same. Upon receiving a Change Request, SOL may, in its sole discretion, either require a signed written change order, or may accept a verbal change order (either, a “Change Order”), and will invoice Change Orders based on applicable unit pricing or T&M. SOL may, in its sole discretion, require payment in advance for Change Requests calling for additional material, products, or labor prior to SOL accepting and implementing the Change Order. SOL may discontinue the Services requested in any Change Request if Customer fails to accept a Change Order within a reasonable time.
WORK SEASON. Weather permitting, the work season generally begins in late March/early April and will continue into December.
LEAD TIMES. All StruXure pergola systems and materials are custom ordered and made to exact specifications typical lead times are 12-16 weeks from the date SOL places the order. SOL and StruXure cannot give an exact ship date and are always subject to change. All Progressive motorized screens or materials are custom ordered and made to exact specifications typical lead times are 8-12 weeks from date SOL places the order. SOL and Progressive cannot give an exact ship date and are always subject to change.
LIMITED WARRANTIES. SOL will provide a one-year warranty from the date of installation on LABOR ONLY for the products, material and services it provides and installs. Note: There is NO WARRANTY on labor for products or materials that SOL provides and does not install. All warranty claimants must be done so in writing and present a copy of the signed Contract and paid invoice and mailed to SOL at 205 E Butterfield Road, Suite 167 – Elmhurst, IL 60126. SOL provides NO WARRANTY on the materials, parts or products it provides or installs. All material warranties are strictly through the manufacturers of the materials, parts or products and are transferred to the Customer. It is the Customers responsibility to inquire on and register for any warranties offered by the manufacturers. Any such claims must be done in accordance with the manufacturers written warranty.
SENSOR MALFUNCTIONS. SOL will assume no liability for sensor malfunctions that cause damage to the following but not limited to: StruXure pergola system, Progressive motorized screens, host structure, the surrounding area including persons. To prevent against sensor malfunctions it is best practice to get the pergola system lovers fully open at a 90-degree angle or having the motorized screens fully retracted.
WINTERIZATION: Customer fully understands that the StruXure pergola system should have the louvers completely opened at a 90-degree angle so that all snow can freely fall through the system and not accumulate on top of the pergola system. The StruXure power control box should be disconnected from its power source after the louvers are completely opend at a 90-degree angle. The system should not be operated below freezing temperatures, doing can can cause damage to the system if there is any snow or ice accumulation.
HIGH WINDS. Customer fully understands that the pergola system should have the louvers completely opened at a 90-degree angle and that all motorized screens are fully retracted so that all wind can move freely throughout the system. Failure to do so cause damage to the following but not limited to: StruXure pergola system, Progressive motorized screens, host structure, the surrounding area including persons.
MAINTENANCE AND CARE. Customer is fully responsible and liable for all maintenance and care in accordance with the manufacturers written instructions. Failure to comply with written maintenance and care instructions can jeopardize and void and warranty given.
HOMEOWNERS ASSOCIATION APPROVAL. SOL shall not be held accountable or liable for any Customer failing to obtain a Homeowners Association Approval (HOA) for any work or services provided by SOL. If requested by Customer, SOL will help provide the Customer the necessary materials, drawings and/or can agree to attend a HOA meeting to help the Customer obtain an approval at a T&M rate. SOL is not responsible for any costs incurred because of Customer’s failure to get an HOA approval for their project.
PERMITS. Customer shall obtain and pay for any required permits and associated engineering or surveying work. If Customer chooses not to obtain the necessary permits or surveying or engineering work, Customer will be responsible to pay SOL for lost time and any fees, fines, or tickets that SOL may incur. SOL can apply and obtain all required permits for a fee of $250 plus permit costs, plus any associated architectural, engineering, surveying, and printing costs.
GENERAL. All products and materials that SOL has paid for or installed shall remain property of SOL until the final invoice for said Work is paid in full. SOL retains the right to remove materials or products from Customer’s property at any time if invoices are unpaid past 30 days. SOL will obtain a JULIE dig number prior to starting any digging/excavation work on site. This requires minimum 72 hours or three business days for the utilities to review and mark the site. It is Customer’s sole responsibility to locate and mark all other underground utilities apart from JULIE (e.g. irrigation/drainage lines, secondary electrical lines, branch gas lines and any other services installed by owner or tenants). SOL will make best efforts to avoid damage to underground utilities; however SOL shall not be responsible for the cost of repairs to any damaged underground utilities regardless of marking by Customer or utility company. SOL will not be responsible for work delays caused by any acts of God, labor disturbances, accidents, fire, delay in transportation, weather, natural disaster, pandemic, epidemic or other conditions or causes of delay which are beyond our control, including subcontractor delays in completion of Work in-process following SOL’s or Customer’s discontinuation of Customer’s Services. SOL does not warrant any work or estimates for underground work which encounters any hidden obstructions discovered by SOL at time of installing, or excavating (e.g. concrete, asphalt, heavy clay, tree root or stumps, underground pipes or the replacement of old or inadequate underground pipes, wires or infrastructure, inadequate host structure framing, siding, roofing, and flashing). In the event such obstructions are encountered, Customer agrees to be responsible for additional charges incurred by SOL to complete the agreed-upon Work, and the parties agree to revise any estimates or invoices accordingly; or if such obstructions will materially change the cost of the Work, Customer may terminate Authorization for the Work, and shall pay SOL for its Services performed through the date of such termination, including all materials, costs, expenses, rentals, or other preparations undertaken by SOL in expectation of the Work. SOL will present a certificate of insurance if requested by Customer. SOL shall not be held responsible for damage to any materials placed under the structure that may be exposed to the sun or rain. This shall include but not be limited to; furniture, grills, counters, decking or electronics. Any unauthorized work performed on our system that does damage to our system without the prior consent of SOL shall not be covered under warranty. In the event of a breach of the Contract, the prevailing party shall be entitled to recover all reasonable attorney’s fees, expenses, and costs incurred to enforce the Contract. Jurisdiction and venue shall be proper in the Illinois state court for DuPage County, Illinois.
INDEMNIFICATION AND LIMITATION OF LIABILITY. Should Customer's property be damaged by SOL, SOL will undertake good faith efforts to repair or replace such damaged plantings and/or property. All Customer vehicles must be at least 10 feet from any work area, or SOL will not be responsible for any damages caused to said vehicles by SOL’s work. SOL will be given an opportunity to repair or arrange for repair of any such damage to the Customer’s reasonable satisfaction. Reports of property damage by SOL employees or subcontractors must be brought to the attention of SOL within forty-eight (48) hours after the occurrence and Customer agrees to make any reports relating to such damage (including but not limited to insurance claims and correspondence) available to SOL. Each party agrees to indemnify, hold harmless and defend the other party from or against any and all liabilities, suits, actions, legal proceedings, claims, demands, damages, costs, and expenses (including attorney's fees) arising out of their acts or omissions (or the acts of their agents or employees) regarding the other’s performance under the terms of the Contract, except that in no event shall SOL be liable (whether in tort, contract, strict liability or otherwise) to Customer or Customer’s insurers or any third party for any incidental, special, third-party beneficial, punitive, indirect, or consequential damage of any kind or for any other lost, delayed or diminished profits or opportunities of Customer, any tenant or subtenant, occupant or guest of Customer’s Premises resulting from SOL’s performance of or failure to perform any obligation under the Contract. SOL’s liability relating in any way to its Work is expressly limited to the total amount of payment it receives for the Services authorized herein, allocable to the specific installment or item of alleged improper Work. Customer agrees to hold harmless, defend and indemnify SOL against any loss or claim by any person relating to the condition of Customer’s premises. SOL does NOT warrant or represent that its Services will fully control or eliminate weeds, or noxious organisms. SOL is not responsible for any amplification or proliferation of weeds, fungus, grubs, or like agronomical incident, nor for any health impact of chemical fertilizers. SOL and Customer agree to a mutual release of claims to-date upon the discontinuation of Customer’s Services.