TERMS AND CONDITIONS
BY SIGNING THE ATTACHED LINER REPLACEMENT CONTRACT, CUSTOMER EXPRESSLY AGREES TO THE FOLLOWING TERMS AND CONDITIONS WITHOUT MODIFICIATION:
SECTION 1. Work.
Aqua-Ducks, LLC, its employees, and its agents (“Aqua-Ducks”) will provide all the goods and services set forth on the attached Liner Replacement Contract, subject to the terms and conditions set forth herein. This Liner Replacement Contract shall hereinafter be referred to as the “Agreement”. Any changes to work shall be in writing, by written addendum to this Agreement and shall entitle Aqua-Ducks to additional compensation, at Aqua-Ducks’ usual and normal rates and charges therefor or as otherwise agreed between the parties.
SECTION 2. Customer Responsibilities.
(a) Customer, or Customer’s authorized representative, must be present at all times during the installation of the pool liner. In the event Customer, or Customer’s authorized representative, is absent and repairs are necessary to complete proper installation of the pool liner, Customer agrees Aqua-Ducks may perform the necessary repairs. Customer further agrees the performance of such necessary repairs shall entitle Aqua-Ducks to additional compensation at Aqua-Ducks’ usual and normal rates.
(b) Customer shall provide access to and around the pool site. Customer agrees to keep the accessway to and around the pool site free of debris, including, but not limited to, pet feces, toys, and patio and pool furniture.
(c) Customer assumes all responsibility for costs related to damage to property, including, but not limited to, lawns, shrubbery, trees, driveways, walkways, toys, and furniture, caused by, in full or in part, installation equipment entering or exiting the property.
(d) Customer shall indemnify and hold Aqua-Ducks harmless from and against any loss, cost, expense, damage, or liability and from all court costs, attorneys’ fees, and other expenses paid or incurred by, or imposed upon, Aqua-Ducks as a result of any claims brought against Aqua-Ducks; and, upon Aqua-Ducks’ request, Customer will undertake at its own cost and expense to defend any such action which may be brought against Aqua-Ducks.
(e) Customer shall ensure the pool is COMPLETELY DRAINED OF STANDING WATER AND DEBRIS PRIOR to the arrival of the installation crews. In the event the pool is not completely drained of standing water and debris prior to the arrival of the installation crews, Customer agrees Aqua-Ducks may drain the pool and shall entitle Aqua-Ducks to additional compensation at a rate of $50/hour pre man, with a minimum charge of $125.
(f) Customer shall provide two (2) separate 20AMP circuits within fifty feet (50’) of the pool.
(g) Customer shall provide enough water at time of installation to create a minimum depth of four inches (4”) at the pool’s shallow end. Any delays and/or rescheduling caused by any water hauler not contracted through Aqua-Ducks will be subject to the usual and normal hourly rates and fees.
(h) Customer is responsible for providing the remaining water to fill the pool.
(i) Customer shall be responsible for disposal of all packing material, debris, and old pool liner and old pool liner material. Customer may, at Customer’s option, elect to have Aqua-Ducks dispose of all packing materials, debris, and old pool liner and old pool liner material at a flat fee of one hundred and fifty dollars ($150).
(j) Customer agrees Aqua-Ducks may, for promotional, advertising, or social media purposes, take and use photos of Customer’s pool immediately prior to, during, and immediately following completion of work.
(k) Pool liners not purchased through Aqua-Ducks. Aqua-Ducks’ usual and normal rates and charges shall apply for incorrect size or style, or damaged liners that halt the installation process and require an additional installation call from Aqua-Ducks.
(l) Pool floors. In-ground pools with sand bottoms, additional work may be required and charged a man-hour rate of $50/hr. may apply. Minor vermiculite bottom and hard pack bottom repairs requiring less than fifteen (15) minutes’ attention are included free of charge; following the first fifteen (15) minutes, vermiculite bottom repairs shall be completed at the usual and normal rates and charges.
SECTION 3. Payment.
(a) Payment is due upon completion of the new liner installation.
(b) Aqua-Ducks will charge a finance charge of one and one-half percent (1 ½%) per month – i.e., eighteen percent (18%) annually, on any account past due. Interest shall accrue on all sums outstanding at the rate specified above notwithstanding the entry of judgment.
(c) All prices shall be subject to additional charges to Customer to cover any local, state, or federal excise taxes, including, but without limitation, taxes on manufacture, sales, receipts, gross income, occupation, use, and similar taxes. Whenever applicable, any such taxes will be added to Customer’s invoice as separate charges to be paid by Customer.
(d) A fifty dollar ($50) check fee, plus ten percent (10%) of the check amount shall be applied to all returned checks.
SECTION 4. Aqua-Ducks’ Remedies.
(a) If Customer fails to pay the charges within the time specified herein or otherwise commits a material breach of this Agreement, Aqua-Ducks may bring an action against Customer in favor of Aqua-Ducks for the entire unpaid balance due, plus all unpaid interest thereon, all other sums payable by or on behalf of Customer pursuant to the terms of this Agreement, together with all collection costs, costs of suit, and all attorneys’ fees incurred by Aqua-Ducks to enforce the terms of this Agreement. Interest on the judgment amount shall continue to accrue at the rate of eighteen percent (18%) per annum notwithstanding the entry of judgment.
(b) Customer hereby waives and releases all benefits that might accrue to Customer by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property from attachments, levy, or sale under execution, or providing for any stay of execution, exemption from civil process or extension of time for payment; and Customer agrees that any real estate, fixtures, or personal property that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued thereon, may be sold upon any such writ in whole or in part in any order desired by Aqua-Ducks.
(c) No failure to exercise, no delay in exercise, nor any course of dealing in respect of, any right, power, or remedy hereunder shall operate as a waiver thereof, nor shall any single, partial, or multiple exercise of any right, power, or remedy hereunder preclude any other or further exercises thereof or exercise of any other right. The remedies provided herein are cumulative and not exclusive of any remedies provided in law or equity.
SECTION 5. Acceptance.
(a) Customer expressly agrees that use of the pool or equipment by the Customer, Customer’s agent, or Customer’s guests or invitees shall constitute absolute acceptance of Aqua-Ducks’ performance under this Agreement.
(b) ABSOLUTELY NO RETURNS ON LINERS. ORDER CANCELLATIONS PRIOR TO PRODUCTION OF CUSTOM LINERS SHALL BE SUBJECT TO A ONE HUNDRED DOLLAR ($100) CANCELLATION AND ENGINEERING FEE.
SECTION 6. Warranty.
(a) Aqua-Ducks represents and warrants that all work shall, subject to the terms and conditions contained in this Agreement, materially conform to the specifications set forth herein.
(b) No employee, agent, or representative of Aqua-Ducks now, or in the future, has the ability to bind Aqua-Ducks to any oral representation, promise, or statement made in connection with the goods and/or services provided hereunder. Aqua-Ducks accepts no responsibility for such oral statements.
(c) AQUA-DUCKS HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, IN CONNECTION WITH ANY GOODS AND/OR SERVICES TO BE PROVIDED TO CUSTOMER AS PROVIDED HEREIN INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION.
SECTION 7. Limitation of Liability.
(a) Customer understands and acknowledges that weather and ground conditions are of major concern to the proper installation of pool liners. As such, Aqua-Ducks shall not be held responsible for delays in the installation process caused, in whole or in part, by poor weather or ground conditions.
(b) In no event shall Aqua-Ducks be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
SECTION 8. Miscellaneous.
(a) Permits, Licenses. All permits, licenses, charges, and specifications which may be required by local ordinances shall be the responsibility of Customer unless otherwise stated under this Agreement.
(b) Descriptive Headings. The descriptive headings in this Agreement are for convenience of reference only and in no way affect this Agreement.
(c) Entire Agreement. This Agreement contains the entire understanding of the parties and is intended as a final expression and a complete statement of the terms of their Agreement. Any oral representations or modifications concerning this instrument shall be of no force or effect excepting a subsequent modification in writing, signed by the party to be charged. In entering into this Agreement, Customer is not replying upon any advice or advertisement of Aqua-Ducks.
(d) Prior Agreements Superseded. This Agreement constitutes the complete, final, and exclusive Agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties in connection with this subject matter. The Agreement and the terms and conditions herein may not be modified except by a writing and signed by all parties hereto.
(e) Choice of Law. This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvania. Customer agrees that any and all actions arising out of or in connection with the sale of goods or services by Aqua-Ducks shall be brought in Northampton County, Pennsylvania, which shall have exclusive jurisdiction and venue, except for federal actions which shall be brought in and only in the Eastern District of Pennsylvania.
(f) Legal Construction. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained therein.
(g) Authority. I have read, understood, and hereby agree to the above terms and conditions. I also represent that I have full authority to incur this obligation on behalf of the Customer referenced on the front of this Agreement.