Services. Tortorella agrees to provide services to Client (the “Services”) as described the Statement of Work (“SOW”) to which these Terms & Conditions (“T&C”) are attached. To the extent there is any conflict between the T&C and the SOW, the SOW shall control.
Entire Agreement. The T&C and the SOW contains the entire agreement of the parties and supersedes all prior written or verbal agreements, if any and of whatsoever sort or type, including, but not limited to, all prior discussions between the parties with respect to the subject matter hereof.
Amendments, Modifications. No modification, amendment, supplement to or waiver of the T&C, the SOW or any of their respective provisions shall be binding upon the parties unless made in writing and duly signed by both parties; provided that Client may modify the Opening Date for each Additional Term in writing on at least thirty (30) days prior written notice before the expiration of the then current Term. A failure or delay of either party to this T&C to enforce at any time any of the provisions of this T&C, or to exercise any option which is herein provided, or to require at any time performance of any of the provisions hereof, shall never be construed to be a waiver of such provision of this Agreement and shall not excuse the other party’s performance of such, nor affect any rights at a later time to enforce the provision.
Non-Solicitation. Client acknowledges that Tortorella invests significant resources in recruiting, training and retaining its employees. During the MSA Term and for two years thereafter, Client shall not, directly or indirectly, encourage or solicit to hire, or otherwise hire or engage to provide any services (other than in accordance with this Agreement), encourage or otherwise induce any employee or representative of Tortorella to terminate their relationship with Tortorella.
Code Compliance. Client represents and warrants that the Water Features and the Equipment (collectively, the “Assets”) will be maintained in accordance with the New York Codes, Rules and Regulations, Title 10, Chapter 1, Part 6.
Indemnification. The Client hereby covenants and agrees to indemnify and hold harmless Tortorella, its officers, employees, agents, and assigns, from and against any and all claims, damages, losses, and expenses, including but not limited to attorney’s fees, arising from or in connection with (i) the performance of the Services, (ii) Suspension of Services, (iii) weather events, (iv) Client’s negligence or willful misconduct, (v) acts taken at the written direction of Client, (vi) usage of the drainage area provided by Client at the Property, (vii) at Client’s direction, leaving any chemicals or other products on the Property, or (viii) acts of God. The Client assumes full responsibility for compliance with relevant local code in addition to any and all injuries, damages, or liabilities that may occur as a result of the use of their facility. Tortorella reserves the right to deny, suspend, or terminate Services (“Suspension of Services”) at any time for any reason. This Section 6 shall survive the completion of the work and the termination of the SOW.
Client Responsibilities.
Client accepts sole responsibility for the safe and compliant storage of Equipment, chemicals, and supplies on Property and acknowledges that Tortorella is not responsible for lost or missing items stored on Property in accordance with Section 6.
Client shall provide Tortorella timely access to Property, Water Features, and Equipment as necessary in connection with the performance of the Services. Locked gates, animals in the yard, or other factors may interrupt the Services and result in Services not being rendered for that period. Client acknowledges and agrees that Tortorella will be held harmless in accordance with Section 6 and shall have no liability related to any loss or damage resulting from Tortorella’s inability to access the Property, regardless of whether such inability is the result of Client’s action or inaction.
Client covenants and agrees to run the filtration equipment necessary to operate the Water Feature (“Equipment”) a sufficient number of hours each day to ensure that the necessary water filtration and water chemicalization to allow for a sanitary environment suitable for swimming (“Water Feature”) gallonage is turned over 2 times per day or greater.
Client covenants and agrees to provide access to a water source within fifty (50) feet of the Water Feature for replenishing water lost from a systemic leak, displacement, or voluntary discharge of water from the vessel necessary to complete contracted Service and/or related repairs.
Client agrees to provide Tortorella with a compliant designated drainage area upon Tortorella’s request. Failure to supply a drainage area may result in Suspension of Service or delay in Services resulting in additional Services billable to Client. Client acknowledges and agrees that Tortorella shall not be liable for any loss or damage occurring in connection with the usage of a designated drainage area or any related Suspension of Service.
Tortorella provides winter pool maintenance services (“Winter Service”) to extend the longevity of Assets. By waiving Winter Service Client accepts full responsibility for maintenance of Assets including but not limited to chemical balancing, water level maintenance, and tightening or repair of pool cover.
Client represents and warrants to Tortorella that is the right and lawful owner of the Property.
Client covenants and agrees to keep credit card information with Tortorella current and up to date at all times during the Term.
Tortorella reserves the right to apply a fuel surcharge at any point in time payable by Client.
Payment Terms.
Credit Card Authorization. Client shall maintain a valid credit card and hereby authorizes Tortorella to automatically charge the credit card provided for all amounts due and payable for Services rendered in accordance with the SOW on a weekly basis. The Client agrees to provide updated credit card information as necessary and acknowledges that failure to do so may result in a Suspension of Service and penalties as set forth in Section 8(b). The Client agrees to pay any fees or charges associated with the use of the credit card, including but not limited to, overdraft fees or insufficient funds fees.
Rate Increases. Client acknowledges and agrees that the fees associated with the Services will increase by at least 5% in each successive Additional Term; provided, however, that if Tortorella intends to increase fees for the Services by greater than 5% it will provide Client with written notice of such increase no later than September 15 of the then current Term.
Penalties. Client acknowledges and agrees that any bill for Services outstanding for more than thirty (30) days shall be subject to a finance charge of 1.25% per month. Failure to make timely payments may result in a Suspension of Services, and Client acknowledges that Tortorella reserves the right to collect outstanding balances in full prior to resuming the Services. Accounts delinquent greater than 10 days may result in Suspension of Services. Any check returned for non-payment will carry a $20.00 service charge.
Legal Action. In the event of legal action between the Parties, Tortorella shall be entitled to reasonable attorney’s fees. The Parties agree that any lawsuit related to this Agreement or any SOW must be brought in the Supreme Court, Suffolk County, New York. Both Parties agree to waive trial by jury.
Nature of Relationship. In the event of a change in ownership, management, or legal structure, including a sale of the Property, Client agrees to provide Tortorella 30 days advance notice in writing and pay full balance within 10 days of notification subject to Tortorella’s discretion. A failure to notify resulting in Tortorella providing additional Services will be financial responsibility of Client.
Counterparts. The SOW may be executed by electronic signature, and in counterparts, each of which shall be deemed to be an original, but all such counterparts shall constitute one and a single instrument.
Safety is Responsibility of the Client.
Client acknowledges that it is solely their responsibility to maintain a safe environment on the Property; Tortorella is not responsible for ensuring that the environment stays safe. Furthermore, Client expressly agrees to restrain or otherwise restrict access to all pets or animals on the Property from being on or near any area of the Property where Services are provided, Equipment is stored, or paths to and from either of the foregoing.
Providing Service, going onsite, providing consulting, or a quote does not imply that Tortorella accepts responsibility for defects in the pool, whether manufactured by Tortorella or another company.
Defined Terms. Terms used in this T&C and not otherwise defined shall have the meaning set forth in the SOW.
Authorized Signer. The undersigned individual represents and warrants that they are fully authorized to execute this document on behalf of the Client and bind the Client to its terms, and that Client is the lawful owner of the Property. The undersigned further agrees to be personally liable for any breaches of this agreement by the Client. The parties hereto have executed and delivered this Agreement as of the date first written above.
