Agree to our terms and conditions prior to work beginning on your project.
PARADISE PONDS AND WATERFALLS, LLC’S
General Terms and Conditions for Services
General Terms and Conditions for Services
- Applicability.
- These terms and conditions for services (these "Terms") are the only terms that govern the provision of services by PARADISE PONDS AND WATERFALLS LLC ("PPW ") to any party receiving an estimate from PPW or any party to whom PPW provides Services (as hereinafter defined) from PPW (hereinafter, the ("Customer").
- The accompanying estimate, which shall automatically become an order confirmation upon Customer clicking the “approve” button on the estimate (the "Order Confirmation") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, these Terms shall govern, unless the Order Confirmation expressly states that the terms and conditions of the Order Confirmation shall control.
- These Terms prevail over any of Customer's general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms.
- Services. PPW shall provide the services to Customer as described in the Order Confirmation (the "Services") in accordance with these Terms.
- Performance Dates. PPW shall use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates shall be estimates only.
- Customer's Obligations. Customer shall:
- cooperate with PPW in all matters relating to the Services and provide such access to Customer's premises and other facilities as may reasonably be requested by PPW, for the purposes of performing the Services;
- respond promptly to any PPW request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for PPW to perform Services in accordance with the requirements of this Agreement;
- provide such customer materials or information as PPW may request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and
- obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
- Customer's Acts or Omissions. If PPW's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, PPW shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
- Change Orders.
- If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. PPW shall, within a reasonable time after such request, provide a written estimate to Customer of:
- the likely time required to implement the change;
- any necessary variations to the fees and other charges for the Services arising from the change;
- the likely effect of the change on the Services; and
- any other impact the change might have on the performance of this Agreement.
- Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a "Change Order"). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 22.
- Notwithstanding Section 6(a) and Section 6(b), PPW may, from time to time change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Order Confirmation.
- PPW may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Order Confirmation.
- If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. PPW shall, within a reasonable time after such request, provide a written estimate to Customer of:
- Fees and Expenses; Payment Terms; Interest on Late Payments.
- In consideration of the provision of the Services by PPW and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Confirmation.
- Customer agrees to reimburse PPW for all reasonable travel and out-of-pocket expenses incurred by PPW in connection with the performance of the Services.
- Customer shall pay for Services immediately upon completion (excluding payment terms for PPW’s water feature installation services). Customer shall make all payments hereunder in US dollars by check made payable to “Paradise Ponds and Waterfalls LLC” or via credit card.
- In the event payments are not received by PPW after becoming due, PPW may:
- charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and
- suspend performance for all Services until payment has been made in full.
- Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder.
- Representation and Warranty.
- PPW represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
- PPW shall not be liable for a breach of the warranty set forth in Section 9(a) unless Customer gives written notice of the defective Services, reasonably described, to PPW within ten (10) days of the time when Customer discovers or ought to have discovered that the Services were defective.
- Subject to Section 9(b), PPW shall, in its sole discretion, either:
- repair or re-perform such Services (or the defective part); or
- credit or refund the price of such Services at the pro rata contract rate.
- THE REMEDIES SET FORTH IN SECTION 9(c) SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND PPW’S LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9(a).
- Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 9(A) ABOVE, PPW MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- Limitation of Liability.
- IN NO EVENT SHALL PPW BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PPW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL PPW’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO PPW PURSUANT TO THIS AGREEMENT.
- The limitation of liability set forth in Section 11(b) above shall not apply to (i) liability resulting from PPW's gross negligence or willful misconduct and (ii) death or bodily injury resulting from PPW's negligent acts or omissions.
- Termination. In addition to any remedies that may be provided under this Agreement, PPW may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:
- fails to pay any amount when due under this Agreement;
- has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
- becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- Waiver. No waiver by PPW of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by PPW. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Force Majeure. PPW shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of PPW including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
- Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of PPW. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
- Governing Law; Jurisdiction. This Agreement and legal relationships among the parties hereto shall be governed by and construed in accordance with the laws of the State of Georgia, without regard to its conflicts of laws principles. Each party hereto irrevocably consents to the jurisdiction of courts situated in Gwinnett County (whether Magistrate, State or Superior Courts) or the U.S. District for the Northern District of Georgia and irrevocably waives, to the fullest extent permitted by law, the defense of inconvenient forum to the maintenance of such suit, action or proceeding, that such court does not have jurisdiction over such party or that venue is improper.
- Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
- Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, Governing Law; Jurisdiction (Section 18) and this Section 21.
- Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.