Service
Agreement
Terms

1. CHANGES IN THE WORK DUE TO SITE CONDITIONS: Morabito shall promptly notify the Customer of: (a) latent physical conditions at the site differing materially from those indicated in this Agreement, or (b) unknown physical conditions differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement. Any expenses incurred due to such conditions shall be paid for by the Customer as added work at Morabito’s customary rates. Notwithstanding the foregoing, should site conditions be such that the Agreement cannot be performed for the Price, then the Price shall be adjusted by mutual agreement of the parties, and if the parties cannot reach an agreement on the adjusted contract price, then this Agreement may be 

rescinded by either party with no further liability to the other for said rescission. However, any obligation of money due to Morabito at the time of rescission shall survive the rescission. No extra or change order work shall be required to be performed without prior written authorization of the person contracting for the Work. Any written forms for changes or extra work shall be incorporated in and become a part of this Agreement. Payment for extra work will be made at the time the next monthly payment is due. 

 

2. AUTHORITY AND SITE CONDITIONS: Customer shall be responsible to remove or protect any personal property located on the Property and notify Morabito of any latent conditions of the Property that may be damaged by performance of the Work. Customer shall point out and warrant the accuracy of the property lines to Morabito and expressly warrants that Customer owns the trees/shrubbery and/or has the authority to authorize the Work. Prior to commencement of the Work, Customer shall disclose to Morabito the location of any and all buried utilities, wells, septic systems, wiring and the like. Customer shall also disclose to Morabito any known defects in the conditions at the Property including, but not limited to, any hazardous substances, dangerous conditions, or other matters that may cause injuries to life or property. Morabito shall not be liable for Customer’s failure to timely disclose any conditions noted herein, Customer’s modification of the Work Site, or incorrect identification of the ownership interest in any trees/shrubbery, unless caused by Morabito’s gross negligence or willful misconduct. Customer, for itself and its successors, heirs and assigns, hereby releases and indemnifies Morabito from any and all liabilities, claims, damages, suits, or the like (including reasonable attorneys’ fees) associated with or arising out of incorrect property lines or boundaries of the Property, or associated with Customer’s failure to notify Morabito of the conditions noted in this Paragraph 2, or improper or incorrect identification of the ownership interest in or to the trees/shrubbery. 

 

3. ACCESS AND COORDINATION: Customer agrees to allow and provide Morabito and its equipment access to the Property Customer shall be responsible for coordinating with other laborers, contractors, materialmen, and suppliers to ensure unfettered and uninterrupted access to the Property in connection with the performance of the Work. In the event that access is unreasonably restricted or other Contractors unreasonably interfere with the Work in a manner that prevents, prohibits, or otherwise delays the performance of the Work, the Customer shall be responsible for the payment of a delay fee equal to the cost of the current hourly labor rate of Morabito multiplied by the length of the delay. 

 

4. LABOR AND MATERIAL: Morabito shall pay all valid charges for labor and material it incurs and uses pursuant to this Agreement. However, when the price for any materials to be used pursuant to this Agreement increases fifteen percent (15%) or more between execution of the Agreement and materials purchase, Customer shall pay to Morabito, on request, all sums by which the cost to Contractor for any materials has increased beyond 15%, as demonstrated by Contractor. 

 

5. RIGHT TO STOP WORK: Morabito shall have the right to stop work under this Agreement if any payment by Customer is not made, when due. Morabito may suspend the Work until all payments due are received. This remedy is in addition to any other right or remedy that Morabito may have. 

 

6. FORCE MAJEURE: Except with respect to payment obligations under this Agreement, no Party shall be liable for, nor shall such Party be considered in breach of this Agreement, due to any failure to perform its 

obligations under this Agreement as a result of a cause beyond its control, including but not limited to any act of God or a public enemy or terrorist, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications, power or other utility, labor problem, unavailability of supplies, epidemic, pandemic or other public health situation or resulting government action which restrains the ability of Contractor to commence, continue or complete performance of the Agreement. On reasonable notice, the time for performance shall be extended by the reasonable period of such delay. If the Work or Schedule is delayed for more than thirty (30) continuous or intermittent days from the same Force Majeure cause, either Contractor or Customer has the discretion to terminate the Contract without liability. Contractor shall be entitled to payment for Work performed and materials supplied to the work site to the date of termination and for materials ordered if the order cannot reasonably be rescinded. 

 

7. CLEAN-UP: Morabito shall be required to use commercially reasonable best efforts to leave the Property in substantially the same, neat and clean condition as existed prior to the Work being performed, normal wear and tear excluded. 

 

8. COMPLIANCE WITH LAWS: In connection with the performance by Morabito of its duties pursuant to this Agreement, Customer shall obtain and pay for all permits and comply with all federal, state, county and local laws, ordinances and regulations. This Agreement shall be governed by the laws of the State of New York. 

 

9. ATTORNEYS’ FEES: In the event that there is any legal proceeding arising out of this Agreement, Customer is in default of its obligations under this Agreement, or collection is necessary, Morabito shall be entitled to have its reasonable attorneys’ fees and costs paid by the Customer. 

 

10. CLAIMS–LIMITATIONS: No legal proceeding of any kind arising from or related to this Agreement or the performance thereof, shall be commenced by either party against the other more than two years after completion or cessation of work under this Agreement. Any damages for which Morabito may be liable to Customer shall not, in any event, exceed the total price of this Agreement. 

 

11. ARBITRATION: Any disagreements, disputes, controversy or uninsured claim arising out of or relating to this Agreement, or alleged default or breach thereof (other than claims for collection brought by Morabito), shall be resolved by binding arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association to be held in Columbia County, New York. Judgment upon the award rendered by the arbitrator(s) may be entered in any Court having jurisdiction thereof. All claims and disputes relating to this contract shall be governed by the laws, ordinances and regulations of the State of New York. Notwithstanding, expressly excluded from this Arbitration Clause are claims for collection based upon non-payment by Customer for services performed, or to be performed by Morabito. 

 

12. VALIDITY: In case one or more of the provisions of this Agreement or any application thereof shall be invalid, unenforceable or illegal, the validity, enforceability and legality of the remaining provisions and any other application shall not in any way be impaired thereby. 

 

13. LIMITED WARRANTY: Morabito warrants that all Work will be performed in a good and workmanlike manner. There are no warranties either expressed or implied except those specifically set forth in this Agreement. As a condition precedent for any warranty coverage, Customer shall promptly notify Morabito of any damage Customer claims was caused by Morabito. Morabito agrees to repair any damage caused by its negligence or willful misconduct within a commercially reasonable time but, in no event, shall Morabito’s liability exceed the amounts paid under this Agreement. 

Any warranty or guarantee is only effective if the Customer has complied with all the terms and conditions, payments, and other provisions of this Agreement. 

Morabito shall also not be responsible for any damage caused by inclement weather, run-off, drainage problems, extreme weather conditions, or any other causes outside of its reasonable control.