These Client Terms of Service (“Client Terms of Service”) and the Client Services Agreement, (the “CSA”) governs the rights and obligations of Proactive House, LLC (d/b/a Proactive House) (the “Company”) and Client (as defined in the CSA) with respect to the type of services provided by the Company to Client. The Company and Client are collectively referred to herein as the “parties,” and each, individually, as a “party.” Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the CSA. These Client Terms of Service form a part of, and are incorporated by reference into the CSA.
The CSA shall commence on the Effective Date and shall continue in effect until the satisfactory completion of the Services, or earlier if agreed upon by the parties.
a. Depending on the scope of the Services, the Payment will either be due (i) prior or at the time the Services are provided or (ii) upon completion of the Services, unless the Company requires an initial deposit as part of the Payment (the “Initial Deposit”), in which case, the Initial Deposit shall be due at least 48 hours prior to the date the Services are scheduled to begin. The CSA shall provide the hourly rate or fees for the Services and whether the Initial Deposit shall be required.
b. The Company shall send Client an invoice before or after each appointment (each an “Appointment”), for the Services that are rendered (the “Invoice”). The Client shall pay the Payment, and any other applicable fees described in this Client Terms of Service, listed on each Invoice at least seven (7) days from the date the Client received the Invoice. If Client fails to pay the Payment listed on the Invoice within seven (7) days of Client receiving the Invoice, Client shall not be permitted to schedule any additional Appointments until the Payment is paid in full.
c. The Payment may be made via credit card, Zelle, Venmo, check or in cash.
If the Services require the Company to be on-site at the Client’s home, or any other area owned, leased or used by the Client (the “Client’s Premises”) there is a minimum Appointment requirement of three (3) hours per Appointment. For Appointments that exceed five (5) hours will include an additional thirty (30) minute unpaid meal break.
Except where the Company fails to attend the Client’s Premises within 2 hours of an appointment to render the Services, the Payment shall not be refundable.
During the term of the CSA, Client may cancel the Services without penalty if Client provides the Company with written notice of such intent to cancel at least 48 hours prior to the agreed upon date on which the Services are due. If Client elects to cancel the CSA with shorter notice, Client shall be responsible for 50% of the Payment. If the Services require the Company to reserve movers or contractors on behalf of Client, Client must cancel any Appointment where such movers or contractors are used (a “Moving Appointment”) by providing the Company with written notice at least 72 hours prior to a Moving Appointment. If Client cancels a Moving Appointment without at least 72 hours’ prior written notice, Client shall pay [$60 and any costs or fees incurred by the Company associated with cancelling the movers or contractors.]
Sixty (60) minutes of travel time, to and from the Client’s Premises, is complimentary as part of the Services. In the event the total travel time exceeds sixty (60) minutes, the Client shall pay an hourly rate of [$60] for any additional travel time. In the event the Services are performed outside of the state of New York, Client shall pay for the costs of lodging, airfare, train tickets, and any other transportation costs necessary to reach the Client’s Premises in advance of the Company providing the Services, and Client shall promptly reimburse the Company for other travel related expenses incurred while the Company provided the Services.
Client agrees that he/she shall (i) allow the Company and its employees and subcontractors unobstructed and unencumbered access to the areas of the Client Premises where the Services shall be performed, (ii) ensure a safe working environment for the Company’s employees and subcontractors, (iii) provide the Company’s employees and subcontractors with all services and utilities (including hot and cold water, electricity, and rubbish bins) and all usual and necessary equipment and materials required to provide the Service, unless other arrangements have been made. In the event that any of the Company’s employees or subcontractors are unable to enter the premises, Client shall be responsible for a fee of $100.
In the event of a breach of any provision of these Client Terms of Service or the CSA by either party (the “Breaching Party”), the other party (the “Non-breaching Party”) shall notify the Breaching Party, in writing, of such breach (the “Notice of Breach”). If the Breaching Party fails to cure such breach to the reasonable satisfaction of the Non-breaching Party within ten (10) days of receiving the Notice of Breach, the Non-breaching Party may immediately terminate the CSA and pursue any other equitable or legal remedies it may have against the Breaching Party.
The Company shall provide the Services and meet its obligations under the CSA in a timely and workmanlike manner, using knowledge and skills for performing the Services which meet the applicable industry standards and shall provide a standard of care at least equal to such standard used by service providers in a similar line of business as the Company.
The Company may hire sub-contractors to perform any of the Services to be provided pursuant to the CSA. The Company will not use ladders or move any objects heavier than 50 lbs. as part of the Services; provided, however, the Company may reserve or recommend third-party sub-contractors if these activities are necessary to complete the Services. The Company is not responsible for the actions or damages caused by third-party sub-contractors or service providers, including but not limited to, handymen, movers, and junk removal services, the Company recommends or reserves on behalf of Client to complete the Services.
The Company may obtain photographs or audiovisual recordings of Client’s residence or commercial space, as applicable, either taken by or on behalf of the Company or provided by Client following the completion of the Services (“Content”). The Company may retain and use such Content for its internal business purposes (e.g., for the Company to keep record of its projects). The Company will not use any Content for marketing purposes without Client’s express consent, as granted through the CSA.
If Client is dissatisfied with the Services, Client shall submit a written statement, in good faith, outlining Client’s issues with the Services (the “Client Complaint”) within one (1) day from the date the Services were completed, and Client agrees to allow the Company to make a reasonable effort to resolve Client’s issue(s) with the Services. Upon receipt of the Client Complaint, the Company shall return to Client’s premises and make a reasonable effort to resolve the Client’s issue(s) with the Service within two (2) days of receiving the Client Complaint (the “Remedial Effort”). If Client is still not satisfied after the Remedial Effort, the Company shall provide Client with a credit which can be used for a future Service.
Client agrees to promptly provide the Company all information about Client necessary to provide the Services and any other information as may be reasonably requested by the Company (“Client Information”). Client acknowledges that the Company shall rely on the accuracy and authenticity of the Client Information, whether provided by Client or its owners, directors, officers, employees, agents, affiliates and other representatives (the “Client Representatives”), and the Company is not obligated, nor does the Company intend, to take any steps to independently verify the accuracy or authenticity of the Client Information. Client hereby indemnifies the Company and each of its directors, officers, employees, agents, affiliates and subcontractors from and against any and all third party claims, demands, suits or actions to the extent they result from, arise out of or relate to Services delivered by the Company in reliance upon Client Information or written instructions provided by Client or the Client Representatives. The foregoing indemnification shall not apply in the event of any fraud, gross negligence or willful misconduct of the Company or its directors, officers, employees, agents, affiliates and subcontractors.
Client may have had access to proprietary, private and/or otherwise confidential information (“Confidential Information”) of the Company. Confidential Information shall mean all non-public information which constitutes, relates or refers to the operation of the business of the Company, including without limitation, all financial, investment, operational, personnel, sales, marketing, managerial and statistical information of the Company, and any and all trade secrets, customer lists, or pricing information of the Company. The nature of the information and the manner of disclosure are such that a reasonable person would understand it to be confidential. Client shall not at any time or in any manner, either directly or indirectly, use for the personal benefit of Client, or divulge, disclose, or communicate in any manner any Confidential Information. Client shall protect such information and treat the Confidential Information as strictly confidential. This provision shall continue to be effective after the termination of the CSA. Upon termination of the CSA, Client shall return to the Company all Confidential Information, whether physical or electronic, and other items that were used, created, or controlled by Client during the term of the CSA.
Client acknowledges and understands the present risks inherent in the Services. Client acknowledges that Client knowingly and voluntarily consents to the Services rendered (as agreed upon in the CSA). Client, Client’s heirs, assigns, and next of kin (collectively, “Beneficiary”) shall expressly defend, indemnify and hold harmless the Company, and each of its directors, officers, employees, agents, affiliates and subcontractors, from any and all loss, damage, expense or liability (collectively, “Claim”), including reasonable and documented attorneys’ fees, resulting from or arising out of any breach or default of the CSA by Client or any Client Representative, and hereby waive, all legal and equitable rights relating to all liabilities, claims, demands, actions, suits, damages, and expenses. Client understands and agrees that the effect of signing the CSA is to give up all Client’s and each Beneficiary’s legal rights to file any lawsuit or bring any cause of action of any nature and kind or to recover any money damages against the Company with respect to any Claim, and Client covenants not to make or bring, or allow any Beneficiary to make or bring, any such Claim against the Company.
Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached the CSA, for any failure or delay in fulfilling or performing any term of the CSA (except for any obligations to make previously owed payments to the other party hereunder) when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events that frustrates the purpose of the CSA: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of the CSA; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) epidemic, pandemic or similar influenza or bacterial infection (which is defined by the United States Center for Disease Control as virulent human influenza or infection that may cause global outbreak, or pandemic, or serious illness); (j) emergency state; (k) shortage of adequate medical supplies and equipment; (l) shortage of power or transportation facilities; and (m) other similar events beyond the reasonable control of the Impacted Party.
In no event shall the Company be liable to Client or to any third party for any loss of use, revenue, or profit 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 damage was foreseeable and whether or not the Company has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
The CSA, and all matters arising out of or relating to the CSA, whether in contract, tort or statute, shall be governed by, and construed in accordance with, the laws of the State of New York, without application of conflicts of laws principles. Either party must institute any claim, dispute or proceeding arising out of or relating to the CSA in New York small claims, state or federal court sitting in the City of New York, which courts shall have exclusive jurisdiction over the adjudication of such matters, and each of the parties (on behalf of itself and its respective successors and assigns) hereto hereby submits to the jurisdiction and venue of such courts and personal service with respect thereto.
The provisions of the CSA contain the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings relating to such subject matter. Except as otherwise provided herein, the CSA may not be modified, altered, waived or amended, except by written agreement executed by both parties.
The CSA may be executed in a number of subsequent counterparts, each of which shall be deemed an original and all of which shall constitute one and the same CSA.
Any notice or communication required or permitted under the CSA shall be deemed to have been duly given if delivered in person or by certified mail, return receipt requested, to the address set forth above or to such other address as one party may have furnished to the other in writing.
The Company and Client acknowledge and agree that the relationship created by the CSA is that of an independent contractor, and nothing in the CSA is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship.
The CSA shall be binding upon, and insure to the benefit of, each of the parties hereto and their respective successors and permitted assigns; provided, however, that Client may not assign or transfer his other rights, or delegate his or her obligations, under the CSA without the express prior written consent of the Company. The Company may assign or transfer its rights or obligations under the CSA to (i) any successor, whether by merger, consolidation, reorganization or acquisition, (ii) any person acquiring all of substantially all; of the business or assets of the Company, or (iii) any affiliate of the Company. Any attempted assignment or delegation in violation of this Section 23 shall be null and void.
The failure of either party to enforce any provision of the CSA shall not be construed as a waiver or limitation of that party’s right to enforce and compel strict compliance with every provision of the CSA.
The parties agree that the electronic signatures of the parties included in the CSA are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic Signature means any electronic, sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record pursuant to the New York Electronic Signatures and Records Act (N.Y. State Tech §§ 301-09) as amended from time to time.