Effective: June 26, 2020
These Terms of Service (“Terms”) govern the performance of work and/or furnishing of materials for the construction, erection, alterations or repair upon land and/or buildings and the provision of remote assistance, advice, and direction to the customer to perform such alterations or repairs (the “Works”) by Home Experience, LLC (333 North Michigan Avenue, Suite 500, Chicago, IL 60601) and its Affiliates (as defined below),collectively referred to below as “HomeX”, “we” or “us”. By signing these Terms, you (“CUSTOMER”) agree to be fully bound by them.
For purposes of this agreement,
“Affiliate” means any individual, corporation, partnership, limited liability company, association, trust, unincorporated entity or other legal entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such individual or entity. As used in this definition, “control” shall mean possession, directly or indirectly, of the power to direct or cause the direction of the management and policies (whether through ownership of securities or other ownership interests, by contract or otherwise);
“Remote Assist” means the provision of remote assistance, advice, direction, and/or diagnostic services to CUSTOMER via phone or other virtual means
Upon acceptance by the CUSTOMER, these Terms apply to each and every instance of the Works that HomeX provides to the CUSTOMER thereafter, unless otherwise agreed.
2. SITE CONDITIONS
A. If HomeX must obtain access to other properties in the course of work, CUSTOMER shall secure permission for the use of said properties, and for securing said property and its contents during and after work.
B. CUSTOMER shall secure, remove and protect all property, and its contents, including but not limited to adults, children, animals, cabinets, fixtures, flooring, walls, tiling, carpets, drapes, furniture, and vegetation during and upon completion of work.
3. UNFORESEEN CONDITIONS
A. If conditions are encountered at the job site which are subsurface or concealed physical conditions, or unknown physical conditions of an unusual nature, which differ materially from that which are ordinarily found to exist, CUSTOMER agrees to accept responsibility for such conditions and further agrees to pay for any labor or materials, including repair to damaged equipment of HomeX caused by such conditions.
B. CUSTOMER shall be responsible for all (i) unknown and concealed conditions; and (ii) for that which HomeX cannot control.
C. Asbestos or other Hazardous Materials Remediation Work – CUSTOMER agrees that HomeX has no information whatsoever with respect to asbestos or other hazardous materials, substances, wastes, pollutants or contaminants (“Hazardous Materials”) in any portion of the CUSTOMER'S property and has not conducted any investigation in connection herewith. HomeX does not perform Hazardous Materials removal and HomeX shall have no responsibility whatsoever in relation to Hazardous Materials. CUSTOMER expressly releases HomeX from any liability whatsoever and for any claims arising out of its presence, release remediation, handling, removal storage or disposal and for any costs, losses or damages CUSTOMER may suffer or sustain if Hazardous Materials are found to exist on the CUSTOMER'S property. In the event Hazardous Materials are found to exist on the CUSTOMER'S property or if, in order to obtain a building permit for the work to be performed by HomeX, any remediation action or work, including investigation, is required to be performed by a third party on the CUSTOMER'S property concerning Hazardous Materials, all work by HomeX will cease until such time as CUSTOMER has, at CUSTOMER'S sole expense, caused said Hazardous Materials to be handled, removed, stored or disposed of in compliance with all applicable laws. CUSTOMER will be liable for any discharge, release, injury to any person, or injury to any property resulting from presence of Hazardous Materials on the CUSTOMER’S property.
A. HomeX will not clean any drain line or sewer lines through a roof vent.
B. Any drain cleaning cable which becomes stuck in the line is the responsibility of the CUSTOMER for removal and/or additional repairs.
C. If a sewage spill occurs, including one deemed to involve Hazardous Materials, the cost of clean-up is the responsibility of the CUSTOMER.
5. LICENSE, PERMITS, FEES
A. CUSTOMER shall furnish and pay for, at their own expense, all taxes, permits, and license fees required to legally perform the Works.
B. CUSTOMER authorizes HomeX to act and sign on CUSTOMER’S behalf to obtain any necessary permit(s) for the Works.
C. Access to the property for an agent of the administrative authority must be provided within a reasonable time. Should reasonable access not be provided, it shall result in additional charges to the CUSTOMER of two-hundred and fifty dollars ($250 00) if HomeX must contact the CUSTOMER three (3) or more times.
D. If at any time the administrative authority asks for additional work not related to the Works that are the subject of these Terms, that work is the responsibility of the CUSTOMER.
E. All notices related to work performed by HomeX which are sent to the property owner must be forwarded to HomeX and a reasonable amount of time allowed for the process.
A. Excluding Remote Assist services, the Works are performed according to each quote accepted by the CUSTOMER. That price is fixed and includes materials, tax and labor.
B. Excluding Remote Assist services, payment for the Works shall be immediately due upon completion of the work set out in each quote.
C. Payment for Remote Assist services will be determined by CUSTOMER’s participation in a membership program or charged by HomeX during the Remote Assist session.
D. No deduction shall be made from payments due to HomeX on account of penalty, liquidated damages, back charges for alleged defective work, or other sums withheld from payments to other contractors, or on account of the cost of changes or defects in the work. Furthermore, CUSTOMER agrees and recognizes that payment for services rendered by HomeX when due is an express condition precedent to HOMEX performing the Works. CUSTOMER recognizes that the failure to pay for services when due shall entitle HomeX to terminate work immediately. In the event that HomeX terminates work for non-payment as herein described, HomeX shall be entitled to all of its reasonable expenses including, not limited to cost of labor, materials, a reasonable allowance for overhead and profit, and all other compensation as allowed by law.
7. LIMITED WARRANTY
A. HomeX warrants its materials and workmanship to be free from defects for one year after completion unless otherwise specified in writing. This warranty does not cover faults caused by misuse; negligence; or damage caused by Acts of God including, but not limited to earthquake. There is no warranty on drain cleaning or refrigerant leaks. In the event that a manufacturer offers a warranty, said warranty shall negate and supersede the HomeX warranty. This warranty is the only warranty by HomeX to CUSTOMER, and is in lieu of all other warranties, expressed or implied.
B. CUSTOMER shall telephone HomeX within twenty-four hours (24) of discovery of any warranty claim. HomeX will respond with reasonable promptness between the hours of 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding public holidays.
C. HomeX shall not be liable for water or other damage relating from any defect or delay in responding to said warranty. CUSTOMER must take reasonable steps to mitigate damages.
D. If workmanship or materials are altered, repaired, modified, or in any way changed by any entity or person other than HomeX, then any warranty issued by HomeX shall automatically be rendered null and void.
E. HomeX does not offer any warrant or accept any liability for any part(s) supplied or re-used by CUSTOMER.
F. HomeX does not offer any warrant or accept any liability for any tasks performed by CUSTOMER, including tasks performed under HomeX’s advice through Remote Assist or otherwise.
CUSTOMER shall, to the fullest extent permitted by applicable law, indemnify, protect, defend, and hold harmless HomeX, and their directors, officers, employees, agents, successors, and assigns from and against any and all suits, actions, legal or administrative proceedings, claims, liens, demands, damages, liabilities, losses, costs, fees, penalties, fines, and expenses (including first-party losses, attorneys’ fees and expenses, and costs of investigation, litigation, settlement, and judgment) directly or indirectly arising out of or in connection with the acts or omissions of CUSTOMER or anyone for whose acts CUSTOMER may be responsible,
9. LIMITATION OF LIABILITY
HOMEX SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THE WORKS.
10. RIGHT TO TERMINATE IN EVENT OF DISPUTE
In the event of a dispute between HomeX and CUSTOMER, HomeX and CUSTOMER agree that HomeX may immediately terminate the Works. ln the event of such termination, HomeX shall be entitled to payment for all services rendered including cost of all labor, materials, reasonable profit and overhead. In the event of cancellation by CUSTOMER after contract has been signed, HomeX is entitled to 10% or payment for work performed, whichever is greater.
11. NOTICE OF DEFECTIVE WORK
Upon completion of the work, CUSTOMER agrees to exercise due diligence in inspecting the work for defective workmanship and materials. CUSTOMER agrees to notify HomeX within forty-eight (48) hours of completion of the work described hereunder of all defective work, if any. CUSTOMER agrees that upon discovery of any allegedly defective work, CUSTOMER shall immediately call HomeX who shall have the first opportunity to repair the alleged defective work. The failure to allow HomeX the first opportunity to repair the alleged defective work shall void all warranties expressed and implied hereunder. CUSTOMER agrees and recognizes that they shall not withhold any payments for allegedly defective work. HomeX is not responsible for reimbursement for work performed by any other company or individual.
12. ENTIRE AGREEMENT
These Terms represents the entire agreement between CUSTOMER and HomeX and supersede all prior negotiations, representations or agreements, either oral or written. These Terms may be amended only by a written instrument signed by HomeX and by CUSTOMER.
Each provision of this Agreement is intended to be severable. If any term or provision hereof is held by a court of law to be in violation of an applicable local, state or federal ordinance, statute, law administrative or judicial decision, public policy or for any other reason, and if such court should declare such provision of this Agreement to be illegal, invalid, unlawful, void, voidable, or unenforceable as written, then such provision shall be given full force and effect to the fullest extent that is enforceable, the remainder of this Agreement shall be construed as if such illegal, invalid, unlawful, void, voidable or unenforceable provision was not contained herein, and the rights, obligations and interests of the parties under the remainder of this Agreement shall continue in full force and effect. If any provision is held to be unenforceable, the court making such determination shall have the power to, and shall, modify such provision to the minimum extent necessary to make such provision, as so modified, enforceable, and such provision shall then be applicable in such modified form.
14. FORCE MAJEURE
Neither Party will be held liable for failure to fulfill its obligations hereunder if such failure is due to a Force Majeure Event. A “Force Majeure Event” means, but is not limited to, an act of war; domestic or international terrorism; civil riots or rebellions; quarantines, embargoes and other similar unusual governmental actions; pandemics, epidemics, local disease outbreaks, public health emergencies; or extraordinary elements of nature or acts of God; provided that such Force Majeure Event is beyond the excused Party’s reasonable control, occurs without the excused Party’s fault or negligence, is not caused directly or indirectly by the excused Party and could not have been prevented or avoided by the excused Party’s reasonable diligence.
15. NOTICE OF POSSIBLE MECHANIC’S LIEN
HomeX is about to perform work and/or furnish materials for the construction, erection, alterations or repair upon land and/or buildings under contract with you. This notice that HomeX and any other person or entity who provides labor and/or materials for the improvement under contract with you may file a mechanic's lien upon the land in the event of nonpayment to any one of them. It is your responsibility to assure yourself that those other persons or entities under contract with the undersigned receive payment for their work performed and materials furnished for the construction, erection, alterations or repair upon land.
16. NOTICE OF CANCELLATION
You may cancel the Works, without any penalty or obligation, within three (3) business days from the date that you signed these Terms. If you cancel, your cancellation notice must state that you do not wish to be bound by these Terms and be mailed by registered or certified mail not later than midnight three (3) days following your signing the Terms, excluding Sunday and any holiday on which regular mail deliveries are not made. All cancellations must be mailed to: Home Experiences, LLC. ATTN: Customer Service, 333 North Michigan Avenue, Suite 500, Chicago, IL 60601.