ASCO MAINTENANCE TERMS OF SERVICE

These Terms and Conditions, and the agreements, policies, and documents incorporated herein, (this “Agreement”), are entered into by and between ASCO MAINTENANCE LLC, a New York limited liability company with an address of 39 Couse Lane, Slingerlands, New York 12159 Lafayette Street in Schenectady, New York, as the Manager (the “Company”), and the entity or individual who enters into this Agreement (the “Owner”).  Company and the Owner are also hereinafter referred to individually as a “Party” and collectively as the “Parties”). This Agreement sets out the terms and conditions under which the Owner may utilize the Company’s services.

 

This Agreement becomes a legally binding contract and is effective as of the earliest date the Owner does any of the following (the “Effective Date”): (1) Create an account on the Company’s website located at https://ascomaintenance.com/ (the “Website”); (2) Accepts this Agreement online; or (3) Begins using any of the Company’s services. This Agreement, as it may be amended from time to time, will be available on the navigation tab on the Website. In addition to the terms of this Agreement, the Owner agrees to be bound by any other terms or agreements which are incorporated herein by reference.

 

Please be advised that this Agreement is a legally binding contract and contains provisions that govern how claims the Owner and the Company have against each other are resolved. 

 

RECITALS

 

WHEREAS, the Owner is authorized to retain the Company to perform light handyman services with respect to certain real property owned or managed by the Owner (“Premises”); and

 

WHEREAS, the Owner now desires to formally engage the Company to provide light handyman services outlined on the Website or otherwise mutually agreed to by the Parties, in relation to the Premises on the terms and conditions set forth in this Agreement (the “Services”).

 

NOW, THEREFORE, in consideration of terms, conditions and mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

 

    1. Services.  The Company shall, on behalf of and for the account of the Owner, perform, the Services as set forth on the Website.  The Owner shall provide the Company with written requests for Services and, if the Company is willing and/or able to perform the requested Services, the Company shall confirm in writing the date, time, and scope of Services to be performed by the Company at the Premises.  
  • Company Obligations.
  • The Company shall have the required skill, experience, and qualifications to perform the Services, shall perform the Services in a professional and workmanlike manner in accordance with industry standards for similar services, and shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner.
  • The Company does not currently hold any professional and/or trade licenses, permits and/or certifications.  If the Company is not licensed to perform any Services requested by the Owner, the Company shall decline the engagement and/or assist the Owner in locating a licensed provider for the requested Service.  In the event that the Company subsequently obtains a professional and/or trade license, permit and/or certification, it shall provide proof of the same to the Owner before providing Services requiring any such professional and/or trade license, permit and/or certification under this Agreement. 
  • The Company shall furnish and maintain, at its own expense, the tools, equipment, supplies, and other materials used to perform the Services.  The Company, at its sole discretion, shall determine what equipment, supplies, and materials are necessary to perform the Services, and the manner, time, and at what price, to purchase or maintain any necessary equipment, supplies, tools, and materials. 
  • The Company shall, at its own expense, be solely responsible for protecting its employees, subcontractors, material suppliers and all other persons from risk of death, injury or bodily harm arising from or in any way related to the Services, or the site which it is been performed and ensuring full compliance with all government safety and OSHA rules and regulations.
  1. Compensation.  In consideration of the Services to be provided by the Company, the Owner agrees to compensate the Company as follows:
  1. The Owner shall pay the Company a monthly subscription fee in the amount of Two Hundred and 00/100 U.S. Dollars ($200.00) for residential Services and Three Hundred and 00/100 U.S. Dollars ($300.00) for commercial Services (“Subscription Fee”), payable in advance for each calendar month during the term of this Agreement. 
  2. The Subscription Fee for each month shall be due and payable on the first (1st) day of each calendar month, with the first payment due and payable upon execution of this Agreement. The Subscription Fee is non-refundable, except as expressly provided in this Agreement.
  3. The Subscription Fee shall cover two (2) hours of Services to be rendered by the Company in the respective month, and any additional services requested by the Owner beyond the initial two (2) hours must be approved in writing by the Owner and shall be billed at a rate of One Hundred and 00/100 U.S. Dollars ($100.00) per hour. 
  4. The Subscription Fee will be automatically deducted from Owner’s designated bank account or charged to the Owner’s credit card on the first (1st) day of each month, unless otherwise agreed in writing by the Parties.
  5. In the event the Subscription Fee cannot be automatically deducted or charged for any reason, the Company may suspend performance of the Services until payment is made.  
  6. If the Owner fails to pay the Subscription Fee when due, a late payment charge of one- and one-half percent (1.5%) per month shall be added to the outstanding balance, accruing from the due date until the date of payment.
  7. Failure to pay the Subscription Fee shall be considered a material breach of the Agreement and grounds for termination as set forth in this Agreement.
  8. All costs and expenses, including, but not limited to, legal fees and costs incurred by the Company in collecting overdue Subscription Fees, shall be borne by the Owner.

This Compensation provision is intended to ensure that the Company is compensated in a timely manner for all Services rendered. The Owner acknowledges and agrees that the Subscription Fee is a reasonable and necessary cost of the Services provided and that prompt payment is essential to the operation and function of the Company. The Owner further understands and agrees that all materials required for the performance of the Services must be paid for by the Owner prior to the Services being performed.  For example, if a drywall repair is requested by the Owner, the cost of the materials to perform the drywall repair must be paid in advanced.

 

  1. Term.  The term of this Agreement shall commence as of the Effective Date and shall continue for one (1) year and shall automatically renew for additional one (1) year terms, unless either Party terminates the Agreement sixty (60) days prior to the renewal of the term or earlier terminated as set forth herein (the “Term”).   

 

  1. Termination.  Either Party may terminate this Agreement (a) without cause upon thirty (30) calendar days’ written notice to the other Party, or (b) upon five (5) days written notice to the other Party of a breach of a representation, warranty, or covenant under this Agreement.

 

  1. Status of Company.  The Parties do not intend to form a joint venture, partnership or similar relationship.  The Parties, instead, intend that the Company shall act solely at arms-length in the capacity of an independent contractor for the Owner.  Nothing in this Agreement shall be construed to mean that the Company and the Owner are joint venturers or partners of each other, and no Party shall have the power to bind or obligate any other Party by virtue of this Agreement, except as expressly provided in this Agreement.  

 

  1. Indemnification.  

 

  1. The Owner hereby releases and forever discharges, and further agrees to indemnify, defend and hold harmless, the Company and all of the Company’s members, managers, employees, attorneys, agents, representatives and successors and assigns, from and against any and all claims, actions, suits, judgments, proceedings, liabilities, obligations, losses, and damages, amounts paid in settlement, interest, costs and expenses (including reasonable attorney’s fees), penalties (civil, criminal or administrative), court costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing (collectively, the “Losses”) arising out of or related in any way to the performance of this Agreement and the Services performed at the Premises, except to the extent such Losses are solely attributable to the gross negligence or willful misconduct of Company in the performance of this Agreement.  

 

  1. The Company hereby releases and forever discharges, and further agrees to indemnify, defend and hold harmless, the Owner and all of its respective members, managers, employees, attorneys, agents, representatives and successors and assigns, from and against any and all Losses solely attributable to the gross negligence or willful misconduct of the Owner in the performance of this Agreement. 

 

  1. If a claim is made against a Party on a matter for which such Party claims a benefit to the provisions hereof, then (i) the indemnified Party shall give the indemnifying Party prompt notice thereof in writing, (ii) the indemnifying Party may defend such claim or action by counsel of its own choosing provided such counsel is reasonably satisfactory to the indemnified Party and (iii) neither Party shall settle any claim without the other Party’s consent.

 

  1. This Section shall survive the expiration or termination of this Agreement.  

 

  1. Non-Solicitation.  During the term of this Agreement and for a period of one (1) year thereafter, the Owner agrees that it shall not, directly or indirectly, solicit, induce, or attempt to solicit or induce any employee, contractor, or representative of the Company to terminate their employment or engagement with the Company for any reason. The Owner understands and acknowledges that the purpose of this non-solicitation clause is to protect the Company’s legitimate business interests, including its relationships, goodwill, and confidential information. The Owner agrees that any violation of this clause will cause irreparable harm to the Company, for which monetary damages will not be an adequate remedy. Therefore, in the event of a breach or threatened breach of this clause, the Company shall be entitled to seek injunctive relief, in addition to any other remedies available at law or in equity. 

 

  1. Limitation of Liability and Time to Bring Claims.  THE COMPANY SHALL NOT BE LIABLE TO THE OWNER OR A THIRD PARTY FOR ANY LOST PROFITS AND INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, RELIANCE OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY EXPRESS OR IMPLIED WARRANTY, CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, USE OF FACILITIES, OR OTHER INTANGIBLES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE OWNER’S SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES. NOTWITHSTANDING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL THE COMPANY’S TOTAL AGGREGATE LIABILITY TO THE OWNER OR ANY THIRD PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY THE OWNER TO THE COMPANY UNDER THIS AGREEMENT DURING THE FIRST TWELVE (12) MONTH PERIOD AFTER THE EFFECTIVE DATE OF THIS AGREEMENT.  THE OWNER AGREE THAT ANY CAUSE OF ACTION RELATED TO THE SERVICES OR THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

 

  1. Disclaimer of Warranties.  THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. THE COMPANY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, TO THE OWNER AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. THE OWNER AGREES THAT IT MUST EVALUATE, AND THAT IT BEARS ALL RISKS ASSOCIATED WITH, THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY SERVICES; TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT THE OWNER’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO THE OWNER’S USE OF THE WEBSITE OR THE SERVICES OR THE DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ANY WEBSITE LINKED TO IT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE COMPANY OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE COMPANY’S OBLIGATIONS.

 

  1. Force Majeure.  The Company shall not be liable to the Owner for damages or be deemed to be in default of this Agreement, and this Agreement shall not be subject to termination, if the Company’s performance of an obligation under this Agreement is delayed or prevented due to a Force Majeure Event (as defined below).  A “Force Majeure Event” shall mean any act, event or condition that materially and adversely affects the ability of the Company to perform or comply with an obligation, duty or agreement required under this Agreement, if such act, event, or condition is beyond the reasonable control of the Company or is not the result of the willful action, inaction or fault of the Company and the Company has been unable to avoid or overcome the act, event or condition by the exercise of due diligence.  Force Majeure events include, by way of example and without limitation: (i) an act of God, epidemic, health pandemic, including, but not limited to, COVID-19, landslide, lightning, earthquake, fire, explosion, storm, flood or similar occurrence; (ii) an act of public enemy, war, blockage, insurrection, riot, general unrest or restraint of government and people, civil disturbance or disobedience, sabotage, act of terrorism or similar occurrence; (iii) a strike, work slowdown, or similar industrial or labor action; (iv) an order or judgment (including, without limitation, a temporary restraining order, temporary injunction, preliminary injunction, permanent injunction, or cease and desist order) or other act of any federal, state, county or local court, administrative agency or governmental office or body which prevents or hinders the performance of the Company’s obligations due under this Agreement; (v) adoption or change (including a change in interpretation or enforcement) of any federal, state or local law after the Effective Date that prevents or hinders the performance of the Company’s obligations due under this Agreement; or (vi) any other event or occurrence not within the reasonable control of the Company.  

 

  1. Miscellaneous.  

 

  1. Binding Effect.  This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.  

 

  1. Entire Agreement.  This Agreement contains all agreements among the Parties, and there are no other representations, warranties, promises, agreements or understandings, oral, written or implied, among the Parties, unless reference is made to them in this Agreement.  Nothing contained herein, express or implied, shall be construed to confer upon any person other than the Parties any remedy or claim under or by reason of this Agreement or any terms, covenants and conditions contained herein.  This Agreement may not be amended, modified or supplemented, except in writing and signed by the Party to be charged therewith.

 

  1. Notices.  All notices to be given hereunder shall, unless otherwise stated herein, be in writing and sent to the Parties by personal delivery, nationally-recognized overnight courier or certified mail, return receipt requested, which shall be addressed to each Party’s respective address as set forth in the first paragraph hereof or to such other address as such Party shall give to the other Party by notice given in accordance herewith, and shall be deemed to have been received (a) in the case of personal delivery, on the date of such delivery, (b) in the case of nationally-recognized overnight courier, on the next business day after the date when sent, (c) in the case of mailing, on the fifth (5th) business day following the date of the postmark on the piece of mail containing such communication and (d) in the case of a notice designating a different address to send notices under this Agreement, only upon actual receipt of said notice.

 

  1. Assignment.  No Party may assign this Agreement, or any of its rights, interests, obligations and remedies hereunder, including, without limitation, by operation of law, without the prior written consent of the other Party, which consent may be withheld in its sole discretion.  

 

  1. Non-Waiver.  Without limiting the right of any Party to deliver to any other Party an express waiver in writing of any provision of this Agreement, the failure of any Party to enforce at any time any provision hereof shall in no way be construed as a waiver of any such provision or the right of any Party thereafter to enforce such provision.  No waiver of any breach hereof shall be held to be a waiver of any other or subsequent breach of this Agreement. 

 

  1.  Governing Law.  This Agreement shall be governed by and interpreted in accordance with the internal laws of the State of New York without regard to conflicts of laws principles.  
  2. Dispute Resolution. Any dispute, controversy, or claim arising out of or relating to this Agreement, including its formation, interpretation, performance, breach, termination, or validity, shall be resolved exclusively through arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes, as amended from time to time (the “AAA Rules”). The arbitration shall be conducted by a single arbitrator appointed in accordance with the AAA Rules. The arbitration shall be held in Albany County, New York at a location determined by the Company. The decision of the arbitrator shall be final and binding upon the Parties, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The Parties agree that any arbitration proceedings shall be confidential and that all information, documents, or evidence disclosed or produced during the arbitration shall be treated as confidential by the Parties and their representatives, subject to statutory exceptions. The Parties hereby waive any right to bring or participate in any class action, collective action, or representative action in arbitration or in court. The arbitrator shall not have the power to consolidate or join claims of different individuals or entities into one proceeding. This arbitration clause shall survive the termination or expiration of this Agreement.

 

  1. Severability; Modification Required By Law.  If any provision of this Agreement, or portion thereof, shall be found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other provisions of this Agreement, or the remaining portions of such invalid, illegal or unenforceable provision, or the whole of this Agreement, and such invalid, illegal or unenforceable provision, or such invalid, illegal or unenforceable portion of such provision, shall be deemed modified to the extent necessary in the court’s opinion to render such provision, or portion thereof, enforceable and the rights and obligations of the Parties with respect thereto effective, preserving to the fullest permissible extent the Parties’ intent set forth in this Agreement.

 

  1. Amendment and Binding Effect of Terms. The Owner acknowledges and agrees that this Agreement may be amended or modified by the Company from time to time in its sole discretion. The Owner further acknowledges and agrees that any such amendments or modifications shall become binding on the Owner within thirty (30) days of their publication on the Website. The Owner shall regularly review the Website to stay informed of any updates or changes to the terms and conditions of this Agreement. Failure to review and acknowledge the amended terms within the specified time period shall not relieve the Owner of its obligations under this Agreement. Rather, the Owner’s continued engagement of the Company to perform the Services more than thirty (30) days after their publication on the Website shall be deemed to be acceptance of any amendments or modifications.
  2. Counterparts.  This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy and all of which, when taken together, shall be deemed to constitute one and the same document.  This Agreement may be executed and delivered by customary or other commercially acceptable electronic means (including DocuSign or similar service, or any other electronic signature complying with the U.S. federal ESIGN Act of 2000, as the same may be amended, from time to time); a manual or electronic signature so affixed to this Agreement whose image shall have been transmitted via facsimile, email, or other customary electronic means shall have the same force and effect as original ink signature for all purposes.

 

[Signature Page to Follow]

IN WITNESS WHEREOF, this Agreement has been duly executed by the Parties as of the Effective Date.

 

COMPANY: ASCO MAINTENANCE LLC

By :

Name:  Ryan Flansburg

Title:  Authorized Representative

 

OWNER:

By :

Name:

Title: