Work and Services Agreement
WORK AND SERVICES AGREEMENT
Contractor Licenses: CPC1460664 and CPC1461236
This Work and Services Agreement (this “Agreement”) governs the provision of all work and services (“Work”) by Blue River Pool Services, LLC, a Florida limited liability company (“Contractor”) to residential and commercial customers (“you”). This Agreement may be updated or supplemented by Contractor from time to time at its sole discretion, provided that Contractor will inform you in advance of any changes that may materially and adversely affect your rights under this Agreement. Please read this Agreement carefully.
Scope. Subject to receiving payment in full of the deposits (if any) and fees specified in the quote or order provided to you (the “Quote”) in such payment form and by such date as indicated in the Quote, Contractor will endeavor to make commercially reasonable efforts to diligently perform the Work as specifically described in the Quote.
Exclusion from Scope. Contractor’s scope of Work shall not include: (i) the evaluation of, or responsibility for, structural integrity, design, engineering, stability or code compliance of any pool, deck, foundation, building, improvement or other structure, (ii) determination of the location, design, capacity, performance or adequacy of drainage systems, grading, soil conditions, groundwater conditions, or water mitigation issues on or around any property, (iii) locating, relocating, repairing, modifying, or bringing up to code compliance any utilities (including plumbing, electrical, gas or irrigation systems) or addressing any latent, concealed, unknown, or different site conditions discovered before or after commencement of the Work, (iv) the identification, testing, detection, monitoring, abatement, handling, encapsulation, transportation or removal of any hazardous, toxic or regulated materials or substances, (v) any upgrades, modifications, or additional work required to bring existing conditions into compliance with current building codes, safety regulations, or permitting requirements unless specified in the Quote, (vi), damages, defects, deterioration, improper prior construction or repairs, or ordinary wear and tear existing prior to commencement of the Work, and (vii) any other work that is not specifically described as a part of the Work in the Quote.
Method of Performance. Unless otherwise specified in the Quote or in writing to you, Contractor will use its own resources such as labor, supplies, equipment, tools and materials to perform the Work.
Scheduling Obligations. Contractor makes no guarantee that performance or completion of the Work can be achieved within or by any specific dates. Nonetheless, subject to the terms of this Agreement, Contractor will endeavor to make all commercially reasonable efforts to meet any timelines or performance times communicated to you in the Quote or in writing.
Permits. Contractor will be responsible for obtaining only those permits or licenses that a government authority requires Contractor to obtain in Contractor’s own name for performance of the Work. You will be solely responsible for obtaining, at your own expense and effort, all other permits and licenses (the “Customer Permits”). Contractor may provide you with commercially reasonable assistance in obtaining the Customer Permits but shall have no responsibility or liability for the Customer Permits.
Documentation and Information, Reliance. You will provide, or cause others on your behalf, to provide Contractor with any documentation or information (including plans, designs, specifications, etc.) that Contractor may reasonably request or that is available to you or such other parties and that is necessary for the performance of the Work or that relate to the premises wherein, or equipment upon which, the Work will be performed. Contractor will be entitled to rely on the accuracy and completeness of any such documentation or information.
Liability Insurance. Contractor agrees to obtain and maintain insurance policies with coverages and limits as may be commercially reasonably standard in Contractor’s trade or business to cover any liabilities that Contractor creates in the performance of the Work and that are expressly assumed in this Agreement.
Replaced and Surplus Material, Salvage. Any replaced or surplus materials left or resulting from the completion of the Work, including any warranty correction, shall be deemed the property of Contractor with a $0 value and no payment, credit or refund will be due to you on account thereof. At Contractor’s choice, any such replaced or surplus materials may be abandoned at the property where the Work was provided or be retrieved by Contractor.
Payment Terms, Collection Costs. Payment terms will be specified in the Quote or in writing by Contractor. You must pay for the Work in the manner and within the time so specified. Any payments that are not received by Contractor within 3 days from the date such payment is due will accrue interest from the date when such payment was first due until paid in full at the rate of 18% per annum or the maximum rate permitted by law, whichever is less. In the event Contractor is required to take any action to collect amounts due under this Agreement, you will pay all costs of collection incurred by Contractor, including but not limited to reasonable attorneys’ fees, court costs, lien filing fees, expert fees, and any other related expenses.
Taxes. You will be responsible for the payment of all taxes due in respect of the Work or Contractor’s performance under this Agreement other than taxes incurred by Contractor because of the compensation paid by you to Contractor.
Suspension Rights. Contractor will be entitled to suspend the performance of the Work, without incurring further liability or obligation to you, immediately upon your failure to make timely payment of any amounts due pursuant to the payment terms specified in the Quote or in writing by Contractor.
No Refund Rights. Except as may be finally awarded to you by a court of competent jurisdiction, Contractor is not obligated to provide you with a refund of any amounts paid by you to Contractor regardless of the reason why such refund may have been demanded or requested.
Lien Rights. You hereby grant Contractor a mechanic’s lien to secure your payment obligations for Contractor’s performance of the Work. You will assist Contractor, at your own expense and effort, in recording, perfecting or enforcing such mechanic’s lien. A FAILURE TO MAKE PAYMENTS WHEN DUE MAY RESULT IN CONTRACTOR’S ENFORCEMENT OF A LIEN AGAINST YOUR PROPERTY, INCLUDING YOUR HOME OR BUSINESS, WHICH MAY HAVE ADVERSE CONSEQUENCES FOR YOUR OWNERSHIP OR DISPOSITION RIGHTS. Contractor encourages you to consult and become familiar with Section 713.015 of the Florida Statutes.
Access and Control of Others. You will procure Contractor (including its employees and subcontractors) with unrestricted access to the property and equipment wherein the Work will be performed for the purposes of performing the Work. You will clear, at your sole expense and effort, any barriers or hindrance impeding such unrestricted access and you will procure any other person present therein to not interfere with or delay Contractor’s performance of the Work.
Prohibited Communication. You agree that you will not instruct, direct or communicate with Contractor’s employees or subcontractors respecting the Work and that all communications will be directed exclusively to the person appointed by Contractor and communicated to you for receipt of any such communications (“Contractor’s Authorized Point Person”). You hereby agree that Contractor is not bound by, and will not be responsible to you or any other person for, any promises, warranties, agreements or undertakings respecting the Work made by any employee or subcontractor of Contractor who is not Contractor’s Authorized Point Person.
Alteration of the Work. While Contractor is performing the Work, you agree that you will not do or cause anyone to perform, alter or cause the alteration of any portion of the Work without the prior written consent of Contractor. You also agree that Contractor will not be responsible for any portion of the Work that may be performed or altered by you or any other person not authorized by Contractor.
Protection of Property. You will be solely responsible for taking all steps to protect from losses or damages any personal or other property in the vicinity of the site where the Work will be performed by Contractor. Absent gross negligence or intentional willful misconduct, subject to the limitation on Contractor’s liability specified herein, Contractor will not be responsible to you or anyone else for any losses or damages to property resulting from the performance of the Work.
Objections to the Work. You agree to raise objections to the performance of the Work by Contractor in a timely manner. Failure to raise timely objections will be deemed to constitute acceptance of the Work as performed by Contractor.
Your Indemnity. You agree to indemnity, defend and save Contractor and its affiliates and their respective owners, managers, officers, directors, employees, subcontractors and insurers harmless from and against any claim, demand or losses (including reasonable attorney’s fees and court costs) relating to or arising from (i) your breach of this Agreement, (ii) your negligence or the negligence of any person present at the property where the Work is being performed to the extent resulting in property damage or bodily injury (including death), (iii) any fees or costs incurred by Contractor in either collecting amounts owed by you for the Work performed by Contractor or enforcing or foreclosing on any liens maintained by Contractor as security for your payment obligations to Contractor.
Contractor’s Indemnity. Contractor agrees to indemnity, defend and save you harmless from and against any claim, demand or losses (including reasonable attorney’s fees and court costs) arising from any finally awarded third party claim for bodily injury (including death) or property damage to the extent (i) caused by Contractor or any of its employees or subcontractors’ gross negligence or willful misconduct and (ii) covered by Contractor’s insurance policies.
Termination. If you terminate the Work early (without a court finding of Contractor’s material breach) or if Contractor terminates the Work early because of your material breach (including a failure to pay amounts due), in addition to retaining as liquidated damages all amounts already paid by you, Contractor will be entitled to demand and recover from you, and you will promptly pay Contractor, any damages or costs incurred by Contractor as a result of such early termination, including cancellation or return costs for labor or material which may have been committed, purchased or earmarked by Contractor for performance of the Work.
Warranty. Contractor warrants that the Work performed by Contractor, its employees and subcontractors will, as of the time of completion, be reasonably free from defects in workmanship and will materially conform with the requirements described in the Quote or by Contractor in writing (the “Warranty”). If you discover a non-conformance with the Warranty at any time during a period not to exceed 60 days following Contractor’s completion of the Work, Contractor will make commercially reasonable efforts to repair, replace or refund (in each case, at Contractor’s choice) the part of the Work confirmed by Contractor to be non-conforming with the Warranty; provided however, that the following conditions are first met: (1) you must have reported the non-conformance to Contractor promptly upon becoming aware, (2) you must be current with all your payment obligations to Contractor, and (3) none of the Warranty Exclusions listed below must apply (collectively, the “Warranty Remedy Conditions”). For the avoidance of doubt, you understand and agree that Contractor will not be obligated to provide any warranty remedies to you unless the Warranty Remedy Conditions are satisfied, as reasonably determined by Contractor.
Warranty Exclusions. The Warranty does not cover any non-conformances or defects caused by or attributable to any of the following: (a) any products, materials, parts, components, equipment or consumable not manufactured by Contractor and which are used or installed by Contractor in the performance of the Work, regardless of whether sold by Contractor on behalf of its original manufacturer or otherwise, (b) non-compliance with Contractor’s written specifications or directions; (c) exposure of the Work to physical abuse, including, but not limited to chemical abuse (e.g. harsh cleansers and solvents), thermal abuse or shock (e.g. excessive heat or cold) or misuse; (d) normal wear and tear; (e) modifications, alterations or repairs by any party other than Contractor and its employees or subcontractors; (f) failure to provide Contractor and its employees or subcontractors, when requested, with reasonable access to the defective or non-conforming part of the Work, or to any other facility or structure as necessary to permit Contractor or its subcontractors to perform the Warranty correction; (g) any hazardous substances or materials on or in any parts of the Work which were not applied by Contractor or its employees or subcontractors; (h) use of the Work after realizing or being in a position to reasonably realize that continued use posed a risk of material damage; (i) any act of God or similar event beyond Contractor’s reasonable control; (j) unreasonable or unintended use of the Work; and (k) any other damages or losses to the Work due to the negligence of any party other than Contractor or its employees or subcontractors.
Warranty Limitations. Any information or suggestion by Contractor with respect to the Work concerning applications, specifications or compliance with codes and standards is provided solely for convenient reference and are made without any representation as to accuracy or suitability. Contractors do not represent or warrant that the Work is non-infringing on the intellectual property or intellectual property rights of third parties. THE WARRANTIES EXPRESSELY SET FORTH HEREIN ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, AND WHETHER ANY CLAIMS ARE BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL OR EQUITABLE THEORY. THE WARRANTY OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING AND USAGE OF TRADE SHALL BE EXCLUDED. CORRECTION IN THE MANNER AND FOR THE PERIOD OF TIME PROVIDED ABOVE SHALL BE THE SOLE AND EXCLUSIVE REMEDY, AND CONTRACTOR’S SOLE LIABILITY, FOR DEFECTIVE OR NONCONFORMING WORK. IN THE EVENT THAT PHYSICAL LOSS OR DAMAGE RESULTS FROM DEFECTIVE OR NONCONFORMING WORK, CONTRACTOR’S LIABILITY SHALL NOT EXCEED THE COST OF PERFORMING THE WARRANTY CORRECTION WHICH CONTRACTOR WOULD HAVE HAD TO PERFORM IF SUCH WARRANTY CORRECTION HAD BEEN CARRIED OUT IMMEDIATELY PRIOR TO THE OCCURRENCE OF THE PHYSICAL LOSS OR DAMAGE.
Limitation of Liabilities. Contractor’s aggregate liability for any claim of any kind, including claims for indemnification, shall be limited to the purchase price paid by you for the Work. IN NO EVENT SHALL CONTRACTOR BE LIABLE IN TORT, CONTRACT OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, STATUTORY, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, LOSS OF REVENUES, INCONVENIENCE, LOSS OF BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN, IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE PERFORMANCE, SALE, DELIVERY, SERVICING, USE OR LOSS OF USE OF THE WORK, OR FOR YOUR LIABILITY TO ANY THIRD PARTY WITH RESPECT THERETO.
Contact Information. Any questions or notices concerning this Agreement (including warranty claims) must be addressed to:
Blue River Pool Services, LLC
Address: 3179 Lynnhaven St, Deltona FL 32738, USA
Attention: Angel Colchado
Phone: (386) 888-1569
Email address: info@blueriverpoolservice.com
Marketing and Publishing Rights. Contractor will have an unfettered right to market, promote, distribute, commercially exploit and publish (in any medium) any videos or pictures of the Work at the property (which may include portion of the property). You hereby grant Contractor permission to take videos and pictures of the Work at the property (including displays of any portion of the property) and wave any claim for compensation relating to the rights granted herein. You also hereby grant Contractor permission to use any and all of your name, voice, image and likeness in connection with the rights granted herein, except to the extent prohibited by law.
Confidentiality. You will treat as confidential all information provided by Contractor to you in connection with the Work, including as it relates to Contractor’s prices, methods of operations and any other proprietary business information of Contractor (“Confidential Information”). You hereby acknowledge that Contractor does not provide any warranties with respect to any such Confidential Information.
Cumulative Remedies, No Waiver. The remedies available to Contractor hereunder are cumulative and not exclusive. The remedies available to you hereunder are exclusive unless otherwise expressly provided. The exercise of any one right or remedy by Contractor shall not constitute a waiver of, or preclude the exercise of, any other right or remedy. No delay or failure by Contractor to enforce any provision of this Agreement shall be deemed a waiver of such provision or of any other rights or remedies available to Contractor.
Subcontracting. Contractor may subcontract all or any portion of the Work without your prior written consent, provided however, that Contractor will endeavor to make commercially reasonable efforts to provide you with notice in advance.
Independent Contractor. Contractor enters into this Agreement and will remain throughout its validity as an independent contractor.
Assignment. Contractor may assign this Agreement or any duty, right or obligation of Contractor hereunder without your prior written consent. You will not assign this Agreement, or any rights or obligation hereunder, without Contractor’s prior written consent.
Force Majeure. Contractor will not be responsible for any delays or costs to the extent relating to the following: (i) your breach of this Agreement, including failure to pay amounts due (ii) any of your acts or omissions, (ii) extra works or modifications to the Work requested by your or on your behalf, (iii) shortage of materials or labor unrelated to Contractor’s breach of this Agreement, (iv) any bad weather, (v) delays or acts from government authorities, and (vi) any other contingency or occurrence outside the reasonable control of Contractor.
Entire Agreement. This Agreement, together with the Quote, supersedes any and all agreements, either oral or written, between the parties with respect to the Work by Contractor and contains all of the representations, warranties, covenants, and agreements between the parties with respect to the Work.
Partial Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way.
Dispute Resolution, Governing Law. All disputes or claims between you and Contractor arising or relating to this Agreement or the Work to be performed hereunder will be brought exclusively in the courts located in Orlando, Florida. YOU HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THAT YOU MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE WORK. This Agreement will be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflicts of law principles.
Mandatory Florida Statute Clauses. The provisions of Chapter 558 of the Florida Statutes with respect to procedures for bringing a claim or action or the construction recovery fund and cancellation rights in the event of a declaration of emergency are incorporated by reference herein.
Agreed and acknowledged by:
__________________________________
Name:
For commercial clients, complete the following:
Entity Name:
Title:
Dated: _________________________