ABSOLUTE POOL & SPA CARE TERMS AND CONDITIONS
These Terms and Conditions (T/Cs) shall apply to all projects undertaken by Absolute Pool and Spa Care , (“APSC”) a Georgia Corporation with offices at 3415-C Huchinson Road, Cumming, Ga., 30040, and 6320-A McDonough Dr., Norcross, Ga. 30093.
Unless otherwise agreed, APSC shall provide labor and materials, as more fully described in specific Statements of Work, including but not limited to Estimates, Exhibits, Addendums, or other documents setting forth the services to be performed by APSC, (the “Contract Documents”), in accordance with the terms and conditions set forth herein. APSC will perform all pool construction and repair services described in the Contract Documents (including any amendments). APSC shall not be responsible for any additional services, including any third-party work, absent written agreement with APSC.
All amendments shall be in writing and executed by both Parties. The Parties may agree to place minor changes on a list as they arise on site, for later inclusion as a formal amendment. Owner shall be liable to APSC for work done by APSC with Owner’s verbal agreement but not reduced to a formal, executed amendment. APSC shall have no responsibility to Owner for work not covered by a formal amendment.
Certain repairs need to be performed when temperatures are in excess of 50 degrees, and the weather is dry. Therefore, APSC cannot guaranty that the work will be completed by a certain date and is not responsible for delays incurred due to unfavorable weather or temperature.
Owner agrees to work with APSC in good faith in providing APSC reasonable cooperation in enabling APSC to perform the Services, including (a) access to the site; (b) adequate electrical power and water resources as requested by APSC; (c) providing information, materials and other resources as set forth in the Contract Documents. Should Owner fail to meet these obligations, APSC reserves the right to suspend performance under the Agreement until Owner meets its obligations. Owner must have all work areas and access to work areas clean of debris. APSC must have access to a water source at all times.
APSC must have access to and from work areas at all times in order to perform work. Project Supervisor must have all gate codes, keys, alarms codes and related items.
Owner shall be responsible for obtaining any necessary approvals from governmental authorities having jurisdiction over the Work, if required, including but not limited to obtaining permits (at Owner’s cost), any approvals (at Owner’s cost) and verifying that Work is compatible with appropriate zoning ordinances. If requested, APSC shall obtain these permits for $800, plus the cost of permits and other fees.
If APSC is unable to perform work due to lack of access; lack or water; other workers delay that prevents APSC from performing work; unsafe work environment; lack of adherence to 3.2 herein; or a similar reason due to the failure of the Owner to comply with this Section 2, the Owner shall be charged a $300 “pull-off” fee for crews of 3 or less, and a $500 “pull-off” fee for crews of 4 or more.
A) APSC’s Employees and Subcontractors
APSC shall have sole control and responsibility for all matters involving its employees or subcontractors. APSC shall have the sole responsibility for the selection, discipline and working conditions of its employees and subcontractors, provided, Owner shall have the right to object to the use of any employee or subcontractor performing the Work. APSC agrees to take reasonable steps to otherwise assign or not use any such employees or subcontractors, absent Owner’s absolute requirement to not use them. Any such absolute requirement must be based upon reasonable grounds for not utilizing them.
APSC will be solely responsible for determining the amount of (and paying) all wages, fees, and other benefits of its employees and subcontractors.
APSC shall perform the Work diligently and professionally, in accordance with the standard of similar contractors and handymen in the area and the standards instituted by the Association of Pool and Spa Professionals (“APSP”).
APSC shall be an independent contractor and nothing in this Agreement shall be construed to create a joint venture, partnership or agency relationship between Owner and APSC. Should APSC procure goods, equipment, or materials for the Work for the account of the Owner, Owner shall retain all responsibility for the cost and delivery of these items.
Owner further acknowledges that all APSC employees and subcontractors are vetted and, as required, trained by APSC and agrees not to engage any such employees or subcontractors directly, absent the written approval by APSC (which will not be unreasonably withheld), for a period of six (6) months following termination of the APSC Work project. Should Owner and APSC employees or subcontractors directly engage in any such activities, APSC shall have no responsibility to Owner for the performance, or lack thereof, of these projects.
APSC agrees to carry a minimum of insurance as follows for the duration of this Agreement.
Workers’ Compensation, in accordance with applicable Law.
General Liability Insurance to a limit not less than one million Dollars ($1,000,000) per occurrence. The primary, umbrella and/or excess liability policies that, alone or in combination, provide the stated limit.
APSC hereby agrees to assign to Owner all Manufacture’s warranties for all goods, equipment and materials purchased for use in the Work.
APSC further warrants (i) that it will perform the Work according the Contract Documents and in accordance to APSC and local industry standards; (ii) that the Work will not contain any material defects caused by APSC’s failure to perform the work in accordance with those standards,, and, if such defects are discovered and communicated, in writing, to APSC, within 1 year of completion of the Work, APSC shall make reasonable commercial efforts to correct any such defects; (iii) and that it will make reasonable efforts to use new materials, of good quality (unless otherwise required or approved by Owner).
Notwithstanding the foregoing, APSC is not responsible for damages or delays caused by; (i) manufacturing defects in the materials or equipment used that are unknown to APSC; (ii) the improper use, application, installation or maintenance of any part of the Work by Owner or any Third Party; (iii) any materials provided by Owner; (iv) any unauthorized modifications by Owner or any Third Party; (v) any misuse of the Work; (vi) normal wear and tear. NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO FITNESS FOR A SPECIFIC PURPOSE, SHALL APPLY TO THE WORK.
Limitation on Liability
Notwithstanding anything in this Agreement to the contrary, in no event shall either Party be liable to the other Party (a) delay damages, out of sequence damages, or similar losses, or (b) consequential damages, including without limitation any lost profits, except for any such damage to APSC resulting from (i) active interference by Owner; (ii) delay or failure of Owner to obtain necessary permits it is obligated to obtain; (iii) failure of Owner to make the work site accessible to APSC, (iv) unreasonable delay of Owner in providing information or making decisions; or (v) failure of Owner or its designers to review shop drawings and other submittals within fourteen days. APSC’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL BE CAPPED AT THE TOTAL ALL WORK ORDERS, CONTRACT DOCUMENTS AND AMENDMENTS HERETO.
- Payment Terms. Owner shall pay to APSC the amount set forth in the Contract Documents, plus and amendments, including a down payment for the Work to be performed, prior to the commence of the Work. Additional payments may be agreed upon at certain Work completion dates, such as a payment schedule, as set forth in the Contract Documents. Owner shall reimburse APSC for all materials acquired by APSC for the Work upon submission of the receipt for the materials by APSC.
- Final Payment Owner shall pay APSC the final payment upon completion of the Work, defined as the date Owner accepts all the Work (“Final Completion”). That occurs when the Work has been fully completed and all non-conforming work has been corrected, and any liens arising out of the Work have been satisfied. APSC shall submit a final invoice to Owner, including a description of the Work performed and a description of the materials used and expenses incurred. Payment of the invoice shall be due immediately after the final walkthrough, and under no circumstances more than 7 days following Owner’s receipt of the invoice, unless otherwise agreed by the Parties. All unpaid payments shall be subject to interest at the rate of 1.5% per month.
Term and Termination
Owner shall be entitled to terminate any existing Work, including Amendments, as set forth in the Contract Documents, solely because of a default by APSC of work set forth in the Contract Documents. Any such default shall be communicated promptly to APSC, in writing (including e-mail), setting forth the specific items at dispute, and granting APSC a reasonable amount of time, (but not less than 30 days), to cure any such defaults.
Default issues are limited to; (i) persistent failure to carry out the Work in accordance with the Contract Documents shall be to terminate the Agreement and the Contract Documents; (ii) persistent failure to assign necessary employees or subcontractors to perform the Work, including Amendments, as set forth in Section 5.
Should APSC fail to cure any such default, Owner’s sole and exclusive remedy shall be to terminate the Agreement, and any remaining Work, and to a refund of an amount up to, but not more than, the amount already paid for non-conforming Work. In no event shall APSC be liable to Owner for any replacement work or any additional damages in connection with this failure to perform the Work. Owner shall be liable to APSC for all work completed and accepted by Owner, irrespective of this default.
APSC shall be entitled to terminate any existing Work, including Amendments, as set forth in the Contract Documents, as a result of a default by Owner of work set forth in the Contract Documents. Any such default shall be communicated promptly to Owner, in writing (including e-mail), setting forth the specific items at dispute, and granting Owner a reasonable amount of time, (but not more than 15 days), to cure any such defaults.
Default issues include; (i) failure to pay the Down Payment or Contract Sum as provided herein; (ii) unreasonable interference with the Work by Owner or others representing Owner; (iii) persistent failure to perform any obligation agreed upon by Owner under the Contract Documents and this Agreement (iv); any material breach of the Agreement or any Contract Documents.
Should Owner fail to cure any such default, APSC may exercise all rights or remedies at law or equity, including the right to cease work and to file a lien on Owner’s property or any equipment provided by APSC.
If either Party institutes any suit, action, or other proceeding in any court of competent jurisdiction, to enforce any covenant or agreement hereunder or to obtain any of the remedies herein provided, the prevailing Party shall be entitled to recover its court costs and reasonable attorney’s fees.
This Agreement constitutes the entire agreement between the Parties as to the matters provided herein and, except as expressly provided by Section 1.5 with respect to Minor Changes in the Work, may be amended only by a written agreement executed by each of the Parties.
This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia. Both APSC and Contractor consent, exclusively, to the adjudication of any dispute arising out of this Agreement by the appropriate federal or state court of competent jurisdiction serving Gwinnett County, Georgia. Any rule of interpretation or construction that requires that ambiguities be construed against the party drafting the Agreement or any similar rule or doctrine shall have no application to the Contract Documents.
It is the intention of the Parties that the provisions of this Agreement be severable. In the event any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect.