PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY
1. SCOPE OF APPLICATION
1.1 The Terms and Conditions (“Terms”) are limited to those contained herein. Any additional or different terms in any forms delivered by you (“Customer”) are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given.
1.2 These Terms shall apply to all quotations and offers made by, and all purchase orders accepted by, BLUEGREEN LLC (“Company”). By requesting or accepting the Products and/or Services described in an invoice or other documentation (including, without limitation, a bill of lading) presented by Company and/or its Contractors, Customer agrees to be bound by and accepts these Terms unless Customer and Company have signed a separate agreement, in which case the separate agreement will govern any conflicts between the documents.
1.3 These Terms apply in lieu of any clearly established course of dealing between the parties or any clearly established usage of trade in the industry. These Terms may in some instances conflict with some of the terms and conditions affixed to the purchase order or other procurement document issued by the Customer. In such case, any conflicting terms so affixed to any document issued by the Customer is hereby rejected and acceptance of Customer’s order is conditioned upon Customer’s acceptance of the Terms, irrespective of whether the Customer accepts these Terms by a written acknowledgement, by implication, or acceptance and payment of Products and/or Services ordered hereunder. Company’s failure to object to provisions contained in any communication from Customer shall not be deemed a waiver of the provisions herein.
2.1 “Contract” means a legally binding agreement based on either a written agreement between the parties or “offer and acceptance” procedure, in which case the offer submitted by Company must be accepted without additional conditions. Company’s offer shall be binding upon Company only if, and to the extent, Company receives a purchase order from Customer based on Company’s offer and Company unconditionally acknowledges such purchase order in writing.
2.2 “Contractor(s)” means, individually and collectively, any service provider, subcontractor, or other individual or entity which the Company has engaged on a subcontract basis to perform Services for Customer.
2.3 “Products” means all cleaning supplies, Microseal™, carpet protector, tile sealers and coatings, and cleaning supplies provided to Customer by or through the Company and/or its Contractors under a Contract.
2.4 “Services” means all floor cleaning, furniture cleaning, natural stone honing & polishing, countertop and vanity polishing and moving furniture to allow cleaning and other cleaning related services provided by or through the Company and/or its Contractors under a Contract.
3. FEES; PAYMENT; TAXES
3.1 The fees for Products shall set out in the Contract, and shall be based on the quantity of Products ordered. The fees for Services shall be based on per square foot of service or an agreed to price provided in the estimate given prior to the start of the job.
3.2 Unless otherwise agreed in writing, payment of the fees is due upon completion of the Services and/or delivery of the Products. All payments are to be made in readily available United States dollars. Payment will be required for before commencement of the work for all Customers, unless the Customer is a homeowner of that specific location where the work is performed. Company shall accept payment by cash, certified check, or credit/debit card. Credit/Debit card payments must be made with the Company at the time of service. Payment by cash or certified check shall be delivered to Company’s office at 2110 Pewaukee Rd, Ste 105, Waukesha, WI 53188 at least 72 hours prior to scheduled date for delivery of Services and/or Products.
3.3 Customer authorizes Bluegreen to charge all valid charges for Services and/or Products to the credit/debit card used by Customer to pay the deposit. If additional valid charges are incurred after the Services and/or Products have been rendered or delivered, Bluegreen is authorized to charge such credit/debit card for such additional charges without further consent from Customer.
3.4 Customer agrees to pay a finance charge of one and five tenths percent (1.5%) per month on the unpaid balance or a minimum of $15 per month from the date when such payment was due until paid. In the event that Company is required to bring legal action to collect delinquent accounts, Customer agrees to pay reasonable attorneys’ fees and costs of suit.
3.5 Customer is solely responsible for, and will indemnify and hold Company harmless from, any and all applicable sales, use, transaction, excise, value added or similar taxes (but not taxes imposed or measured by Company’s income or profits), and from any governmental fees or charges (including, but not limited to, environmental or similar fees), resulting from or otherwise associated with any Contract or other transaction between the Company and Customer, or the sale or delivery of Products and/or Services in connection therewith.
3.6 Customer agrees to a minimum charge of one hundred and fifty dollars ($150.00) plus applicable sales tax for performing services on single-family homes or multi family homes with a parking spot within 100 feet of the entrance to the home. All residential condos, apartments or other multi-family with a distance greater than 100 feet from the nearest parking spot to the home entrance will have a minimum charge of one-hundred and seventy-five dollars ($175.00) plus applicable sales tax.
4.1 Customer acknowledges and agrees that the Company shall subcontract with its Contractors to perform any and all Services and/or Products under these Terms and any Contract hereunder.
4.2 Customer represents and warrants that it is the legal owner or in lawful possession of all personal property that is to be the subject of the Services and/or Products, and has the legal right and authority to contract for the Services and/or Products with respect to all such property, subject to these Terms and any Contract hereunder. In addition to, and not in lieu of, any other rights or remedies of the Company hereunder, the Customer shall indemnify and hold harmless the Company and its Contractors from any liability for loss, cost, expenses, and damages which Company or its Contractors may incur as a result of any breach of this representation and warranty.
4.3 Customer shall not present any Hazardous Materials (as defined below), flammable materials, explosives, or other inherently dangerous material to be the subject of the Services and/or Products under these Terms or any Contract hereunder. The term “Hazardous Materials” shall include, but not be limited to, any hazardous or toxic chemical, gas, liquid, substance, material or waste that is or becomes regulated under any applicable local, state or federal law or regulation. In addition to, and not in lieu of, any other rights or remedies of the Company hereunder, the Customer shall indemnify and hold harmless the Company and its Contractors from any liability for loss, cost, expenses, and damages which Company or its Contractors may incur as a result of any such prohibited items.
4.4 With reference to Article 8, below, if Customer has any high value items (including, without limitation, business or legal documents, artwork, etc.) Customer should consider exclude cleaning near such items from the Services or notifying its own insurance agent to obtain additional coverage for the protection of incidental damage of such items, at Customer’s own expense.
4.5 Company will not be responsible for failing to remove any stains or damage to the areas contracted by the Customer to clean.
4.6 Human and pet urine odor and stains can take considerable time to remove the odor and stain from the surface or within the damaged floor or upholstered furniture. Bluegreen will need to inspect the problem area in person prior to starting the service. There is no guarantee implied or expressed that all human and/or pet urine and/or stains will be removed in our cleaning process. Our Spot and Spill program does not cover human or pet spots.
4.7 Arrival times indicated in a Contract or Company communication are estimates only and the Company reserves the right to modify or delay the arrival times. Company will make a good faith effort to complete service as indicated in a Contract or Company communication, but Company assumes no responsibility or liability for any loss or damage due to delay or inability to begin service, whether or not such loss or damage was made known to Company.
4.8 If delay in services is caused by the circumstances of force majeure (including, but not limited to, an act or omission on the part of the Customer), the time for service shall be extended by a period which is reasonable having regard to all the circumstances of the case. If the Customer requires any change to content of delivery and/or Product after the date of the Contract, Company has a right to reschedule delivery time based on free capacity.
4.9 For both offsite and in-home area rug cleaning, Company is not responsible for shrinkage, fugitive or migrating dyes, transfer of instructional markings on fabrics, yarns that might bleed, bleached spots, sun or other forms of fading, cellulosic browning, texture change, fibers or yarns weakened by age, chemical or insect damage, degraded adhesives, wear or permanent discoloration or stains, detergent or spotter damage or residue. It is further understood that there is no guarantee that all stains or pet odors will be removed completely.
4.10 Customer understands that when cleaning natural stone flooring, vanities, and countertops, that the removal of factory applied finishes will yellow or dull over age and may come off during the cleaning and/or chemical stripping process. Customer understands that Bluegreen will provide a price to replace this factory applied finish with comparable or upgraded floor finish in such event.
4.11 Customer understands that removing dirt or any other contaminate from the floor may reveal pre-existing damage to the flooring or upholstered furniture. Company will not be held responsible for these pre-existing conditions.
4.12 Customer understands that some contaminates may not be released from the floor or upholstered furniture during the Company cleaning process and may have permanent staining.
4.13 Company is not responsible for any damage to Customer’s home, vehicle, area rug or surface cleaned by products provided by the Customer. No warranty is provided implied or expressed by Customer provided products.
4.14 In the event Customer needs to cancel or reschedule any service date or time, Customer shall provide the Company at least 48 business hours’ notice prior to such scheduled pickup or delivery day. In the event Customer does not provide such prior notice, the Company reserves the right to charge a cancellation fee of One Hundred and Fifty Dollars ($150). This cancellation fee also applies to lockouts where we are not able to access your home. Our Technicians will wait for 15 minutes before departing and calling all available numbers on the account.4.15 Service Quality Guarantee. Company strives to provide outstanding cleaning services for our Customers. If you are not happy with the service or product provided by Company, you are required to notify us via phone call within 48 hours of completed service. Company will provide a set appointment to return to the Customer’s service location and if possible, resolve the problem within 3 weeks or sooner if Company and Customer agree to a mutually beneficial time. If Company does not receive notice of a problem within 48 hours of completed service or if Customer decides to resolve the issue, no additional compensation or reduction in invoice will be provided to the Customer.
4.16 Company will not, under any circumstances perform any work in a house where there is a minor alone. There must always be a person of legal age (18 or older) present if there is a minor at the home. In the event that the person of legal age shall leave the premise, Company Employees will leave the home and full payment will be due.
4.17 Customer may be provided a price estimate over the phone from Company for future services for Customer’s home or dwelling. This estimate is based on dimensions provided by Customer, typical room dimensions for a home of a similar size provided by the Customer or a Company Employee may provide Customer with typical ranges based on previous clients. Final price may increase or decrease once measurements are taken in the home of the Customer prior to commencement of services.
5. REMEDIES OF COMPANY
5.1 Customer agrees that any of the following shall constitute an “event of default” which shall enable Company, at its option, to cancel the unfulfilled portion of any Contract or other transaction between Company and Customer, and/or to exercise any right or remedy which it may have by law: (i) the failure of Customer to perform any term or condition contained herein or in any Contract; (ii) any failure of Customer to give required notice; or (iii) if Company, in good faith, believes that Customer’s prospect of performance under these Terms or any Contract hereunder is impaired.
5.2 All rights and remedies of Company herein are in addition to, and not in lieu of, any rights or remedies that Company may have under other law.
5.3 In the event it becomes necessary for Company to incur any expense for the collection of any unpaid amounts due from Customer, such collection expenses, including reasonable attorneys’ fees and court costs, will be added to the balance due and Customer shall pay all such expenses.
6. INSURANCE; WAIVER OF SUBROGATION
6.1 Company maintains, and requires its Contractors to maintain, liability insurance. Company can confirm insurance coverage upon request.
6.2 Company does not insure any of Customer’s personal property. It is the Customer’s sole responsibility to obtain and maintain insurance on Customer’s personal property equal to the actual full value of such personal property against loss, damage and/or destruction. Said insurance shall contain a waiver of subrogation clause wherein the insurer waives its rights to any and all claims against Company and/or its Contractors.
7.1 Customer shall indemnify, defend and hold harmless Company and its Contractors from and against any and all losses, liabilities, costs, expenses, attorneys’ fees, fines, damages, claims, demands, causes of action and lawsuits of any kind whatsoever in any way arising from, or as a result of, or in connection with, any breach of Customer’s obligations hereunder or any Contract entered into hereunder.
8. LIMITATION OF LIABILITY AND DAMAGES
8.1 Neither the Company nor any Contractor shall be liable for any loss or destruction of or damage to any personal property of Customer, however caused, unless such loss, damage or destruction resulted from Company’s or its Contractors’ failure to exercise such care in regard to the personal property as a reasonably careful person would exercise under like circumstances. Neither Company nor its Contractors shall be liable for damages which could not have been avoided by the exercise of such care. In addition, Customer hereby releases Company and its Contractors from any responsibility for any loss, liability, claim, expense, damage to personal property that could have been insured against by Customer. Customer expressly agrees that the carrier of any insurance obtained by Customer shall not be subrogated to any claim Customer have against the Company or its Contractors.
8.2 The limited warranty granted under Section 8.1 is the sole and exclusive remedy given by Company and/or its Contractors to Customer in respect of the Products and/or Services, and is further subject to the other limitations of this Article 8. NEITHER COMPANY NOR ITS CONTRACTORS MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED, RESPECTING ANY OF THE PRODUCTS AND/OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR FREEDOM FROM CLAIMS FOR INFRINGEMENT. ANY SUGGESTIONS, TECHNICAL ASSISTANCE OR OTHER INFORMATION PROVIDED BY COMPANY AND/OR ITS CONTRACTORS REGARDING USE, SELECTION, APPLICATION OR SUITABILITY OF THE PRODUCTS AND/OR SERVICES SHALL NOT BE CONSTRUED AS SUCH A WARRANTY.
8.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER COMPANY NOR ITS CONTRACTORS SHALL BE LIABLE FOR ANY DAMAGES WHATSOEVER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE PRODUCTS AND/OR SERVICES SOLD HEREUNDER, EVEN IF COMPANY OR ITS CONTRACTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.4 In no case will the liability of Company and its Contractors exceed the lesser of: (1) $0.60 per square foot of flooring or (2) $.060 per pound per each upholstered furniture per each article of personal property claimed to be damaged and/or destroyed, or (2) $2,000 aggregate per Contract.
9. GOVERNING LAW & ARBITRATION
9.1 These Terms and any Contract or other transaction between Company and Customer hereunder will be governed by the laws of the State of Wisconsin.
9.2 Except as provided in Section 9.6 hereof, any dispute, controversy or claim arising out of or relating to these Terms or any Contract or other transaction between Company and Customer hereunder shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Any and all such arbitration proceedings shall take place in Milwaukee, Wisconsin, U.S.A. and shall be conducted in English. The arbitrator shall be such person(s) as are mutually agreed upon by the parties hereto or, if they fail to so agree within ten (10) days after any party proposes any such person(s), arbitrator(s) selected in accordance with the American Arbitration Association procedure for that purpose. There shall be only one (1) arbitrator.
9.3 The arbitrator(s) may award all or any portion of the attorneys’ fees, arbitration costs and/or other expenses to a prevailing party in such proceedings if the arbitrator(s) determine that an opposing party was not acting in good faith or was acting without substantial justification with respect to the arbitration and/or the matters to which said fees, costs and expenses relate. Otherwise, the costs of the arbitrator(s) shall be borne equally by all parties, and each party shall pay its own legal and other fees and expenses in connection with such arbitration.
9.4 The award rendered by the arbitrator(s) shall be final and binding on all parties and may be entered and enforced by any court of competent jurisdiction.
9.5 In the event that any party fails to cooperate with arbitration proceedings instituted pursuant to this Section, an aggrieved party shall be entitled to recover reasonable attorneys’ fees and expenses in connection with enforcing its rights under this Section, in addition to such other legal and/or equitable relief as may be appropriate.
9.6 With regard to any matter which cannot be determined by arbitration, the parties hereto consent to jurisdiction in the Wisconsin courts to hear any suit, action or proceeding, and to settle any disputes, which may arise out of or in connection with these Terms or any Contract or other transaction between Company and Customer hereunder. The parties further agree that venue for any such suit, action or proceeding shall be proper in Milwaukee County, Wisconsin with regard to a suit, action or proceeding brought in a state court and the United States District Court for the Eastern District of Wisconsin with regard to a suit, action or proceeding brought in a federal court, and each party hereby agrees not to assert in any such action or proceeding that either of such courts lacks personal jurisdiction or is not a convenient forum and hereby waives, to the fullest extent permitted by law, any other right to contest the jurisdiction and/or venue thereof..
10. FORCE MAJEURE
10.1 Company shall not be liable for any damages or in default hereunder for any delay or failure to perform to the extent that such delay or failure was attributable to acts of God, civil or military action, terrorism, acts of a public enemy, war, accident, fire, explosion, earthquake, flood, failure of transportation, strike or other work interruption or any other cause beyond the reasonable control of Company (including, without limitation, acts of Customer).
11.1 Any notice or communication permitted or required under any Contract or other transaction between Company and Customer hereunder shall be in writing and shall either be hand delivered, sent by certified mail or reputable overnight delivery service, faxed or sent via electronic mail to the other party at the addresses indicated in the Contract.
11.2 Notices hand delivered as provided above shall be deemed given upon such delivery. Notices sent via facsimile transmission or electronic as provided above shall be deemed given upon their successful transmission. Notices mailed or sent via courier as provided above shall be deemed given on the date of their deposit in the mail.
11.3 Any party hereto may change the facsimile number, e-mail address and/or street address to which notices thereto should be given hereunder by giving notice of such change to the other party hereto in accordance with the provisions of this Section.
12.1 Any amendments or modification to these Terms or any Contract or other transaction between Company and Customer hereunder shall only be valid when made in writing and signed by both parties.
12.2 In the event that any provision these Terms or any Contract or other transaction between Company and Customer hereunder is ever finally determined to be wholly or partially illegal, invalid or unenforceable, either in all jurisdictions and circumstances or in particular jurisdictions or circumstances, such provision shall be deemed severed therefrom in those jurisdictions and circumstances as to which it is so determined to be wholly illegal, invalid or unenforceable and shall be deemed limited to the extent required in those jurisdictions and circumstances as to which it is so determined to be partially illegal, invalid or unenforceable, and such severance or limitation shall not affect the legality, validity or enforceability of any of the other provisions thereof or of such provision to the extent not so severed or limited.
12.3 The headings of these Terms are for convenience of reference only and shall not in any way limit or affect the meaning or interpretation of the provisions of these Terms. In interpreting these Terms, whenever the context so permits, (a) the singular shall include the plural and the plural shall include the singular, (b) any gender shall include all genders and (c) the term “including” shall mean “including, without limitation.” The word “including” shall mean “including, without limitation.”
12.4 No failure or delay on the part of either party hereto in the exercise or enforcement of any of its rights under any provision hereof shall be deemed to constitute a waiver or other relinquishment of any of such rights or of such provision in the absence of a written waiver signed by such party. Any such written waiver shall be effective only with respect to the specific matters covered thereby and shall not affect the parties’ respective rights and obligations with respect to other or future items.
12.5 A Contract or any rights or obligations based thereon may not be assigned by Customer to any third party without prior written consent of Company. However, Company shall be entitled at all times to assign its rights under a Contract (in whole or in part), or to subcontract any part of the Services and/or Products to be provided under the Contract, as it deems necessary or desirable.
12.6 Any Contract between the parties hereunder may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Transmission of a copy of a signature by e-mail or other electronic means (including clicking the ”accept” button on any digital interface in which Customer has had an opportunity to review the Contract terms, including these Terms) shall be treated by both parties as the equivalent of physical delivery by such party to such other party of a complete original of such Contract executed by such party.
12.7 Customer agrees that by accepting this service with Company, the Company be allowed to contact Customer for a period of 31 months from the date of last service within the home through any Customer phone numbers provided to Company during previous phone calls, site visits or electronic communications.