Terms of Service Agreement

 

 

COMPLETE TERMS OF SERVICE AGREEMENT

 

This Complete Terms of Service Agreement (the “Agreement) is made and effective on date of first Service Visit, by and between:

 

AvaScapes LLC (defined as Service Provider)

A Washington State Limited Liability Company

3561 East B Street

Tacoma, WA  98404

UBI            603-038-746

GC #            AVASCL*903Q9

253-353-2181

info@AvaScapes.com

 

And:

 

Property Owner  (Defined as Owner)

 

 

The Service Provider and the Owner may be referred to individually as a “Party” or collectively as the “Parties.”

 

RECITALS

 

WHEREAS, the Owner is the owner of the Property (as defined below); and

 

WHEREAS, the Owner wishes to engage the Service Provider as a general contractor to perform certain Work (as defined below) on the Property for the Owner in accordance with the drawings and specifications attached as Exhibit A hereto and on the terms and conditions set forth below; and

 

WHEREAS, the Service Provider is registered with the state of Washington as a general contractor, and has a registration number of AVASCL*903Q9 , expiring on November 29, 2014, and

 

WHEREAS, the Service Provider wishes to perform the Work on the Property in accordance with the drawings and specifications as outlined in the System generated “Service Visit Proposal” ; and

 

WHEREAS, each Party is duly authorized and capable of entering into this Agreement.

 

NOW THEREFORE, in consideration of the above recitals and the mutual promises and benefits contained herein, the Parties hereby agree as follows:

 

  1. SCOPE OF WORK.

 

The Service Provider shall furnish all of the necessary materials, tools, machinery, supervision,and perform all of the work described hereto (the “Work”), all in accordance with the terms of this Agreement. The Work shall be performed on that certain property located at (Owner Property Address on File)  (the “Property”).  The Service Provider agrees that it will perform the services and provide the materials for which it is responsible.

 

  1. TIME OF COMPLETION

 

The Parties agree that time is of the essence and that the Work to be performed under this Agreement shall therefore start on (Date of Customer Acceptance of this Terms of Service Agreement). If the Service Provider cannot perform the services as scheduled, due to Acts of Nature, or circumstances beyond reasonable control, Services will be rescheduled and performed within 48 hours of regularly scheduled service day and time, or,  if Service Provider cannot perform the services scheduled, the work will be scheduled, or cancelled at the Owners discretion.

 

  1. HOLIDAYS

 

Service Provider does not provide service on the following Holidays:

 

            News Years Day

            4th of July

            Memorial Day

            Labor Day

            Thanksgiving

            Christmas Day

 

  1. CONTRACT PRICE.

 

The Owner shall pay to the Service Provider, as payment for the Work and materials to be provided under this Agreement, as outlined in the “Service Visit Proposal”. The Contract Price shall be subject to certain additions and deductions that may be made pursuant to changes authorized under this Agreement, and agreed upon by both parties, in writing.  All applicable State, County, City, Municipality, Township, and other taxes as governed by the state of Washington will apply, (defined as applicable taxes) and are NOT included in the amounts referenced in this Agreement.  The agreed upon Contract Price is due in full within 10 days of completion of work.  

 

  1. Affidavit of Contractor.

 

  1. Affidavit of Contractor. Prior to initiation of this Service Agreement, Service Provider affirms in writing, by use of this Agreement, that there are no liens, or claims filed against the Service Provider, or the Owner related to materials, labor, or services supplied on this or any other project in which the Service Provider was or is currently involved. No payment shall be made to the Contractor if a lien has been filed with respect to the Work that is the subject of this Agreement.

 

  1. Waiver of Owner’s Claims. The making of final payment shall constitute a waiver of all claims by the Owner for work completed.

           

  1. Waiver of Service Provider’s Claims. The acceptance of payment shall constitute a waiver of all claims by the Service Provider.

 

 

  1. LICENSES AND PERMITS.

 

The Service Provider shall comply with all state and local licensing and registration requirements for the type of work performed. The Service Provider shall obtain and, at its expense, pay for any and all licenses or permits required by law to accomplish any Work required in connection with this Agreement, agrees to hold the Owner harmless for any violations, and shall accordingly indemnify the Owner.

 

  1. REPRESENTATIONS AND WARRANTIES.

 

  1. The Parties each hereby represent and warrant as follows:

 

  1. Each Party has full power, authority, and right to perform its obligations under the Agreement.

 

  1. This Agreement is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors’ rights generally and equitable remedies).

 

  1. Entering into this Agreement will not violate the charter or bylaws of either Party or any material contract to which that Party is also a party.

 

  1. The Service Providor may, in its discretion, engage licensed subcontractors to perform the Work; provided, however, that the Service Provider must fully pay any such subcontractor and, in all instances, will remain responsible for the completion of this Agreement and the Work.

 

  1. The Service Provider hereby represents and warrants as follows:

 

  1. The Work shall be performed in a workman-like manner, according to standard industry practices and in compliance with all building codes and other applicable laws; provided, however, that if other standards or requirements are set forth in any attached plans and specifications, those other standards or requirements shall control.

 

  1. The Work shall be performed by individuals duly licensed and authorized by law to perform said work, to the extent required by law.

 

  1. The Service Provider is responsible for paying all ordinary and necessary expenses of its staff.

 

  1. The Service Provider warrants that it is adequately insured for injury to its employees and others incurring loss or injury as a result of the acts of the Service Provider or its employees or subcontractors and shall provide the Owner with proper certificates of insurance. The Service Provider acknowledges that it is solely responsible for providing insurance coverage for itself and its staff.

 

  1. The Service Provider shall obtain all necessary approvals from local authorities or other statutory bodies concerned for the Work and shall hold the Owner harmless for any violations and accordingly indemnify the Owner.

 

  1. The Service Provider shall obtain insurance to protect itself against claims for property damage, bodily injury, or death due to its performance under this Agreement.

 

  1. The Owner hereby represents and warrants as follows:

 

  1. The Owner is the registered owner of the Property, or authorized to enter into agreement if securing services on behalf of property owner.

 

  1. The Owner will make timely payments of amounts earned by the Service Provider under this Agreement.

 

  1. The Owner shall notify the Service Provider of any changes to its procedures affecting the Service Provider’s obligations under this Agreement at least 7 days prior to implementing such changes.

 

  1. The Owner shall provide such other assistance to the Service Provider as it deems reasonable and appropriate.

 

  1. WAIVER OF LIABILITY.

 

If the Service Provider is injured while performing the work specified under this Agreement, the Owner shall be exempt from liability for those injuries to the fullest extent allowed by law.

 

  1. SURETY BOND.

 

Before starting the Work under this Agreement, the Service Provider shall be required to obtain a surety bond in the amount of $1,000,000.00, which will cover its obligations under this Agreement.

 

  1. INDEMNIFICATION.

 

The Service Provider shall indemnify and hold harmless the Owner from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorneys’ fees and disbursements that any of them may suffer from or incur and that arise or result primarily from (i) any gross negligence or willful misconduct of the Service Provider arising from or connected with Contractor’s carrying out of its duties under this Agreement, or (ii) the Contractor’s breach of any of its obligations, agreements, or duties under this Agreement.

 

  1. WARRANTY.

 

  1. Correction of Defective Work. The Service Provider shall promptly correct any Work rejected as defective or as failing to conform to the Service Visit Proposal, whether observed before or after substantial completion and whether or not fabricated, installed, or completed, and shall correct any Work found to be defective or nonconforming within a period of 30 day[s] from the date of substantial completion of the Agreement or within such longer period of time as may be prescribed by law. The Service Provider shall correct these mistakes within a reasonable time after receiving the Owner’s written instructions and at its own cost (unless otherwise agreed by the Parties); provided, however, that the Service Provider shall not be required to correct at its own cost any damage that occurred after completion of the Work, unless the Parties agree that such damage is because of an injury that took place before the Work was completed.  Due to the nature of services being provided, seasonal and weather conditions may govern exact time frame in which corrections can be completed.

 

  1. Normal Wear and Tear Only. The Service Provider shall only be responsible for damages sustained by the Owner under conditions of normal wear and tear, and shall under no circumstances be responsible for damages or losses caused by wear and tear, misuse, neglect, negligence, abuse, or accident, or because of or arising from any risk insured against in terms of the homeowner’s insurance policies normally issued by a reputable insurance company for residential properties. The Service Provider shall under no circumstances be liable for any consequential loss or damage.

 

  1. IMMEDIATE TERMINATION.

 

This Agreement may be terminated effective immediately:

 

  1. By Service Provider with no notice, with, or without cause.

 

  1. By either Party for a material breach of any provision of this Agreement by the other Party, if the other Party’s material breach is not cured within twenty four (24) hours of receipt of written notice thereof.

 

  1. By the Owner, if the Service Provider defaults or persistently fails or neglects to carry out the Work or fails to perform any provision of the Agreement after seven (7) days’ written notice to the Service Provider.

 

  1. By the Owner at any time and without prior notice, if the Service Provider is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directives of the Owner, or is guilty of serious misconduct in connection with performance under this Agreement.

 

In the event of termination not the fault of the Service Provider, the Owner shall promptly pay the Service Provider according to the terms of this agreementfor services rendered before the effective date of the termination. The Service Provider acknowledges and agrees that no other compensation, of any nature or type, shall be payable hereunder following the termination of this Agreement.

 

  1. ACCESS TO WORK.

 

The Owner, the Owner’s representatives, and public authorities shall at all times have access to the Work.

 

 

THE OWNER HAS AN UNCONDITIONAL RIGHT TO CANCEL THIS AGREEMENT UNTIL MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE AGREEMENT IS SIGNED. CANCELLATION MUST BE DONE IN WRITING.  ANY MONIES PAID TO SERVICE PROVIDER WILL BE REFUNDED IN FULL, IF AGREEMENT IS TERMINATED BEFORE WORK BEGINS.  NO MONIES WILL BE REFUNDED AFTER WORK HAS BEEN COMPLETED AND APPROVED BY CUSTOMER VIA ELECTRONIC INVOICING SYSTEM.

  1. NOTICE OF RIGHT TO CANCEL/REFUND POLICY
  1. ADDITIONAL AGREEMENT TERMS.

 

The Owner and the  hereby agree to the following additional terms:

_______________________________________________________________________________________________________________________________________________________________________________________________________________________.

 

  1. ASSIGNMENT.

 

The Service Provider reserves the right to sell or assign this Service Agreement.

 

  1. SUCCESSORS AND ASSIGNS.

 

All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the Parties. 

 

  1. NO IMPLIED WAIVER.

 

The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.

 

  1. NATURE OF RELATIONSHIP.

 

The Service Provider is not an employee of the Owner; the Service Provider is working in its capacity as an independent contractor. The Service Provider agrees to hold the Owner harmless and indemnify the Owner for any claims, including (but not limited to) liability insurance, workers’ compensation, and tax withholding for the Service Provider’s employees.

 

  1. OWNERSHIP OF DRAWINGS AND OTHER ITEMS.

 

All drawings, reports, designs, sketches, photos, working drawings, shop drawings, documents, certificates, plans, specifications, estimates, memoranda, analyses, calculations, models and other tangible evidence of the Service Provider’s work product prepared in connection with the Work shall become and remain in equal parts, the property of both parties.  The Service Provider may retain copies of its work product for its records; and is authorized to use and publish both as reference to and documentation of work done, as well as advertising purposes.  Any devices (other than equipment or devices which constitute part of the Work) or methods now being used in the marketplace, and incorporated into the project, are not considered to be property of the Owner. Innovative construction methods or mechanical devices developed by the Service Provider or its subcontractors and used in connection with the Work are not considered the property of the Owner unless such methods or devices were developed by the Owner or the Owner’s separate contractors.

 

  1. TYPES OF MATERIALS.

 

All materials used by the Service Provider in performing the work shall be new, in compliance with all applicable laws and codes, and covered by a manufacturer’s warranty (if appropriate) except as follows ________________________________________________________________________________________________________________________________________________

 

  1. OWNERSHIP OF MATERIALS.

 

Any materials that are unfixed and required to perform the Work and that are delivered to the Property under this Agreement shall remain the property of the Service Provider until they have been paid for by the Owner.

 

  1. MATERIALS IN SHORT SUPPLY.

 

If any of the materials set out in the Service Visit Proposal hereto are in short supply or are unavailable for an unreasonable amount of time, the Owner shall select alternative material of similar quality from alternative (and readily available) materials proposed by the Service Provider. The responsibility for paying any difference in price between the original materials and the alternative materials shall lie with the Owner.

 

  1. MODIFICATION.

 

No amendment, addendum, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties.

 

  1. GOVERNING LAW.

 

This Agreement shall be governed by the laws of the state of Washington.  In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing party's reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing party may be entitled. 

 

  1. COUNTERPARTS/ELECTRONIC SIGNATURES.

 

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.  For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature.

 

  1. SEVERABILITY.

 

Whenever possible, each provision of this Agreement, will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.

 

  1. ENTIRE AGREEMENT.

 

This Agreement, constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.

 

  1. HEADINGS.

 

Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.

 

 

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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.

 

OWNER

 

By:                                                                        
Name:

Date:
 

Service Provider

 

By:                                                                             
Name:

Date: