General Terms for Services and Pool Projects

West Michigan's Oldest and Most Experience Pool Builder and Servicer. Also servicing Caldera Spa and Cyanna Valley Spa Dealer

Polynesian Pool and Spa - Terms & Agreements for Hot Tubs / Spas

Polynesian Pool & Spa - General Terms for Services and Pool Projects / Construction

By agreeing to work (services, pool construction, repairs, maintenance, etc) with Polynesian Home Center dba Polynesian Pool & Spa Inc., You Agree to The Following Terms and Legal Agreements.  If you have any questions, please call us at 616-363-4161. 

POLYNESIAN POOL & SPA – GENERAL TERMS AND CONDITIONS FOR SERVICES

  1. Applicability.
    • These terms and conditions for services (these “Terms”) are the only terms that govern the provision of the Services (as defined below) by Polynesian Home Center, Inc. d/b/a Polynesian Pool & Spa (“Polynesian”) to the customer (“Customer”) identified in the accompanying proposal (the “Proposal”).
    • The Proposal and these Terms (including, to the extent applicable, the New Pool Terms, the Pool Liner Terms and the Hot Tub Terms) (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties and communications, both written and oral. If there is a conflict between these Terms and the Proposal, the Proposal will govern.
  2. New Pool Terms; Pool Liner Terms; Hot Tub Terms.
    • If the Services involve the construction of a new pool, then the Terms and Conditions for New Pool Construction (available at: __________________) (the “New Pool Terms”) are hereby incorporated by reference. If there is a conflict between these Terms and the New Pool Terms, the New Pool Terms will govern.
    • If the Services involve repair or replacement of a pool liner, then the Terms and Conditions for Pool Liners (available at: __________________) (the “Pool Liner Terms”) are hereby incorporated by reference. If there is a conflict between these Terms and the Pool Liner Terms, the Pool Liner Terms will govern.
    • If the Services involve the delivery of a hot tub, then the Terms and Conditions for Hot Tubs (available at: __________________) (the “Hot Tub Terms”) are hereby incorporated by reference. If there is a conflict between these Terms and the Hot Tub Terms, the Hot Tub Terms will govern.
  3. Services. Polynesian will provide the services to Customer as described in the Proposal (the “Services”) in accordance with these Terms.
  4. Performance Dates. Polynesian will use reasonable efforts to meet any performance dates specified in the Proposal. However, the dates in the Proposal are estimates only.
  5. Cancellations. If Customer no-shows, cancels or reschedules a scheduled appointment with Polynesian, or if Customer fails to follow Polynesian’s instructions ahead of any scheduled appointment (g., failing to drain its pool), Polynesian may charge Customer its then-current cancellation or rescheduling fee.
  6. Customer’s Obligations. Customer will:
    • Cooperate with Polynesian in all matters relating to the Services and provide timely access to Customer’s premises for the purposes of performing the Services.
    • Respond promptly to any Polynesian request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Polynesian to perform the Services in accordance with the requirements of this Agreement.
    • Provide such Customer materials or information (g., drawings or surveys) as Polynesian may request to carry out the Services in a timely manner; and ensure that such Customer materials or information, whether in oral, visual, written, electronic or other form, are complete and accurate in all material respects.
    • 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.
  7. Customer’s Acts or Omissions. If Polynesian’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer, Polynesian will 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 from such prevention or delay.
  8. Change Orders.
    • If either party wishes to change the scope or performance of the Services, it will submit details of the requested change to the other party in writing. Polynesian will, within a reasonable time after such request, provide a written estimate to Customer of (i) the likely time required to implement the change, (ii) any necessary variations to the fees and other charges for the Services arising from the change, (iii) the likely effect of the change on the Services and (iv) any other impact the change might have on the performance of this Agreement.
    • Promptly after Customer’s receipt of the written estimate, the parties will negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party will be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 25.
    • Notwithstanding Section 8(a) and Section 8(b), Polynesian may periodically change the Services without the consent of Customer as long as the changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Proposal.
  9. Fees and Disbursements; Payment Terms; Interest on Late Payments.
    • As consideration for the Services, Customer will pay the fees set forth in the Proposal, at the times specified in the Proposal.
    • Disbursements are items incurred and paid by Polynesian on Customer’s behalf such as the cost of a permit. Invoices will normally be rendered based on the contract agreements, upon completion of one time services, or monthly for ongoing services disbursement charges. Polynesian may request that large disbursement items be billed to Customer directly for payment from a third party contractor if applicable.
    • Customer will pay all invoiced amounts due to Polynesian on receipt of Polynesian’s invoice.
    • In the event any payment is not received by Polynesian within ten (10) days after the due date for such payment, Polynesian may: (i) impose a one-time late fee of $35; (ii) charge interest on the unpaid amount 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/or (iii) suspend performance for all Services until payment has been made in full. Customer agrees to pay all attorneys’ fees and other costs incurred by Polynesian to collect sums owed by Customer or to otherwise enforce the terms of this Agreement.
  10. Taxes. Customer will 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.
  11. Advertising. Polynesian may at any time photograph or otherwise depict its Services for Customer for purposes of Polynesian’s promotional advertising, without payment to Customer upon completion of projects, services, or spa delivery. We will agree to discuss this with customer before it takes place.
  12. Limited Warranty.
    • Polynesian represents and warrants to Customer only (e., not to any successor or assign of Customer or to any subsequent owner, lessee or transferee of Customer’s property) that it will perform the Services using personnel of required skill, experience and qualifications, in a workmanlike manner and in accordance with good construction practices, observing applicable building codes and NSPI safety recommendations and guidelines.
    • Subject to Section 12(c), Section 12(d), Section 12(e) and Section 12(f), Polynesian will, in its sole discretion, either (i) repair or re-perform the defective Services or (ii) credit or refund the price of the defective Services at the pro rata contract rate.
    • Polynesian will not be liable for a breach of the warranty set forth in Section 12(a) unless Customer gives written notice of the defective Services, reasonably described, to Polynesian within thirty (30) days of the time when Customer discovers or ought to have discovered that the Services were defective, but in no event later than one (1) year following the completion of the Services, except that, with respect to new pools, the warranty period will begin to run on Customer’s first use of its pool if such use occurs prior to the completion of the Services.
    • Polynesian will not be liable for a breach of the warranty set forth in Section 12(a) if Customer has not complied with its obligations under this Agreement, including payment in full of all fees owing to Polynesian.
    • The limited warranty set forth in Section 12(a) does not cover any defects or damage due to: (i) improper use; (ii) improper maintenance, including improper chemical use or balance; (iii) alterations or modifications without Polynesian’s prior written consent; (iv) use of a part or component not approved by Polynesian; (v) unauthorized repair; (vii) normal wear and tear; or (vii) external causes such as accidents, abuse, misuse or other actions or events beyond Polynesian’s control.
    • For the avoidance of doubt, Polynesian does not provide any warranty whatsoever with respect to any parts and/or components purchased by Polynesian, including, without limitation, assemblies, goods, equipment and accessories. Such parts and/or components may carry a manufacturer’s warranty.
    • THE REMEDIES SET FORTH IN SECTION 12(b) WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND POLYNESIAN’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 12(a).
  13. Disclaimers.
    • Polynesian is not responsible for any loss or damage to Customer’s pool, pool liner or pool equipment or accessories, or other property (real or personal), including, without limitation, Customer’s lawn, trees, shrubs, vegetation, sprinkler heads/lines, sidewalks, driveways, decks or other fixtures, in each case, except to the extent the loss or damage is the result of Polynesian’s intentional misconduct or gross negligence. In addition, Polynesian is not responsible for any damage to Customer’s pool, pool liner or pool equipment or accessories, or other property (real or personal), to the extent such damage arises out of or is the result of preexisting conditions outside of Polynesian’s control, or of which Polynesian had no knowledge. Unless this Agreement expressly provides otherwise, Polynesian will have no further responsibility to Customer after its completion of the Services, including if any weather, changes in conditions, changes in grade, settling of land or landscaping impact the Services or Customer’s property.
    • EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12(a), POLYNESIAN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCT OR SERVICE SUPPLIED TO CUSTOMER, AND POLYNESIAN EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY AND WARRANTY OF WORKMANLIKE PERFORMANCE. ALL PARTS AND COMPONENTS ARE PROVIDED “AS IS.”
  14. Limitation of Liability.
    • IN NO EVENT WILL POLYNESIAN BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE 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 POLYNESIAN 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 WILL POLYNESIAN’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 POLYNESIAN PURSUANT TO THIS AGREEMENT.
  15. Termination.
    • In addition to any remedies that may be provided under this Agreement, Polynesian 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.
    • Polynesian may also terminate this Agreement with immediate effect upon written notice to Customer, if unforeseen circumstances arise that make construction commercially impracticable, illegal or impossible, or if new home construction is delayed, resulting in the delay of the performance dates.
    • If this Agreement is the result of a home solicitation, then, in accordance with Act 227 of the Public Acts of 1971, Customer has the right to cancel this Agreement by providing written notice to Polynesian within three (3) business days after signing of this Agreement.

Upon the termination of this Agreement, (x) Customer will pay Polynesian for any Services rendered up to and including the date of termination, (y) Polynesian will return to Customer any amounts previously paid by Customer less the amount of the Services rendered up to and including the date of termination. Sections 1-2 and 12-25 will survive any termination of this Agreement.

  1. Waiver. No waiver by Polynesian of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Polynesian. 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.
  2. Force Majeure. Polynesian will 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 Polynesian, including, but not limited, 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, pandemic, lockouts, strikes or other labor disputes (whether or not relating to Polynesian’s workforce), telecommunication breakdown or power outage.
  3. Assignment. Customer will not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Polynesian. 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.
  4. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will create any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
  5. 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 will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
  6. Governing Law. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of Michigan, without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. A party shall institute any legal suit, action or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in Grand Rapids, Michigan. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (i) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE AFOREMENTIONED COURTS; AND (ii) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT; AND (iii) WAIVES ANY RIGHT TO TRIAL BY JURY.
  7. Period of Limitations for Claims. If Customer wishes to make any claim arising out of or relating to this Agreement or the Services, Customer must file such claim no later than twelve (12) months from the date the Service wsa performed. If Customer does not file such claim within such period, Customer will be forever barred from making any legal or equitable claim relating in any way to this Agreement or the Services.
  8. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder must be in writing and addressed to the other party at its address set forth in the Proposal (or to such other address that may be designated by a party from time to time in accordance with this Section) and will be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (return receipt requested); (c) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
  9. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  10. 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.

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