Terms & Conditions (updated: March 5, 2023)
These Terms and Conditions (“Terms”) shall apply to the attached Maintenance Service Proposal (the “Proposal”) dated as of the date shown on the Proposal between Otium Luxury Estate Management, LLC (“Otium”) and the Client, as shown on the Proposal (“Client”). To the extent that these Terms conflict with any terms or provisions of the above Proposal, these Terms shall prevail. Client’s written acceptance of, or its performance in relation to the Proposal shall constitute Client’s acceptance of these Terms.
Engagement. The Client agrees to retain Otium, and Otium agrees to be retained and to perform certain services for the Client, pursuant to the terms and conditions of the Proposal and these Terms (collectively, the “Agreement”).
Term. The term of the Agreement shall commence on the date shown on the Proposal and shall continue until terminated pursuant to Section 7.
Services. Otium will provide general routine household maintenance to the Client as reasonably requested by the Client during monthly scheduled visits, including, performing monthly preventative maintenance tasks, inspecting the home, updating or improving the property in the form of small projects (i.e. replacing light or plumbing fixtures, single room painting, or other miscellaneous jobs), monitoring services providers such as lawn care, pest control, septic servicing, HVAC servicing, pool servicing, monitoring extensive projects to be performed by contractors, and other projects as requested by Client to be agreed to be performed by Otium in its sole discretion, all at such times as mutually agreed upon by the Otium and Client. Some exclusions may apply. Notwithstanding anything to the contrary herein, Otium reserves the right to decline to perform a service requested by Client in the event performing said service would be unduly burdensome to Otium, would exceed Otium’s expertise and ability to perform quality services, or would unnecessarily jeopardize the health and safety of Otium and its affiliates or would increase the risk of harm to Otium and its affiliates.
Service Calls. Client must request services to be performed under the Agreement by Otium as soon as a problem is reasonably discoverable. Otium shall use its best efforts to respond to a service request at the Client’s home within 48 hours after receiving said request. To the extent any such day 48 hours following the request is not a Business Day (as defined below), Otium shall use best efforts to respond to a service request at the Client’s home the first Business Day thereafter. In the event of an emergency (i.e. water or gas leak), please contact Otium and identify the request as an emergency. Otium will use its best efforts to respond to all emergency service requests, but Client will also contact the appropriate service provider and/or emergency services, as the situation requires. All emergency service calls with incur a base $500 fee, which shall be billed in addition to the Monthly Retainer. Upon inspection and review of the service requested, Otium and Client will discuss the timeline for completion and work to be performed. The Client may also add items to the list of services to be performed on the next or future scheduled monthly visits. For purposes of the Agreement “Business Day” shall mean any day other than a Saturday, Sunday or holiday on which national banking associations in the State of Texas are closed.
Compensation. During the term of this Agreement, Client shall pay Otium as follows:
(a) Monthly Retainer. As compensation for the services to be rendered by Otium, the Client shall pay Otium a Monthly Retainer in the amount described in the Proposal for and in consideration of the Monthly Hour Allotment as described in the Proposal for services performed at Client’s home each month as mutually agreed upon by Otium and Client. Additional hours shall be charged on an hourly basis at the rate set forth in the Proposal.
(b) Owner Advocate Fee. As compensation for monitoring extensive projects to be performed by contractors or projects exceeding Twenty Thousand Dollars ($20,000.00) in costs, Otium shall charge Client a fee, as set forth in the Proposal, on the total cost of the project (“Owner Advocate Fee”). For each such project, Client and Otium shall enter into an Owner Advocate Authorization Form to confirm (i) Otium’s role in the project; (ii) the entitlement of an Owner Advocate Fee; and (ii) to those other contractors and trades involved, that Otium is authorized to work on behalf of Client. To the extent there are insurance proceeds available to cover the Owner Advocate Fee, Otium will seek to be reimbursed the Owner Advocate Fee from insurance proceeds. Otium shall advise Client when a licensed contractor is required to complete a project and Client shall retain the contractor to complete the project. For and in consideration of the Owner Advocate Fee, Otium will supervise and oversee the work of the retained contractor(s) through completion of the project. The Owner Advocate Fee shall be invoiced in accordance with the payment terms outlined in the Agreement.
(c) Out-of-Pocket Expenses. The Client shall reimburse Otium for any out-of-pocket expenses incurred by Otium or its affiliates in the performance of its duties, upon submission of appropriate documentation. Generally, these expenses will include cost of materials, travel costs and labor costs. Any out-of-pocket expenses will be invoiced in accordance with the payment terms outlined in the Agreement.
(d) Default. In the event Client fails to timely pay an amount owed to Otium, Otium shall maintain the right to suspend all services until such time that Client becomes current. Further, Otium may require a mobilization fee to restart work after a period of suspension. All past due balances will accrue interest at a rate of one- and one-half percent (1.5%) per month. In the event Otium retains an attorney or collection agency to seek collection of a past due balance, Otium shall be entitled to recover all reasonable and necessary attorneys’ fees, collection fees and court costs.
Indemnification. The Client shall, if applicable, jointly and severally, indemnify and hold harmless Otium and its affiliates, and their respective officers, managers, members, controlling persons or any person or entity performing services for or on behalf of Otium or its affiliates (Otium and its affiliates, and each such other person or entity being herein called the “Indemnitee”) from and against any and all losses, claims, actions, suits, proceedings, demands, complaints, disputes, arbitrations or investigations or threats thereof (including any claim or other such matter by a third party), damages, and liabilities, joint or several, including all expenses, including fees and disbursements of counsel, reasonably incurred by any Indemnitee in connection with or otherwise caused by or arising, directly or indirectly, out of any claim relating to the provision of services to the Client pursuant to the Agreement, the preparation for or defense of any claim, action or proceeding, whether or not resulting in any liability, as incurred, to which an Indemnitee may become subject under any applicable federal or state law, excluding however, claims for negligence, willful misconduct, fraud or criminal act by or on behalf of any Indemnitee. Promptly after receipt by an Indemnitee of notice of any claim or commencement of any action or proceeding in connection with any matter related to such Indemnitee’s activities pursuant hereto, such Indemnitee will notify the Client in writing of such claims or of the commencement of such action or proceeding (provided that the failure to give such notice shall not affect the Client’s obligation to provide indemnification hereunder), and if requested by such Indemnitee, the Client shall assume the defense of such action including the employment of counsel reasonably satisfactory to such Indemnitee and the payment of the fees and disbursements of such counsel. In the event such Indemnitee determines, in its reasonable judgment, that there is a conflict of interest by reason of having a common counsel, or if the Client fails to defend the action, then the Indemnitee may employ separate counsel satisfactory to the Indemnitee or any other Indemnitee in any such action or proceeding in which such Indemnitee or such other Indemnitee may become involved or to be named as defendant, and the Client shall pay, as incurred, the fees and disbursements of such counsel. The Indemnitee shall also notify the Client promptly of the assertion against the Indemnitee and/or the Client or any of their officers, managers, members, controlling persons or affiliated companies of any claim or of the commencement of any action or proceeding in connection with any such matter, provided that the failure to give such notice shall not affect the Client’s obligation to provide indemnification hereunder. This Section 6 will survive the termination of the Agreement.
Termination. Both the Client and Otium may terminate the Agreement upon thirty (30) days prior written notice to the other party. In the event of the termination of the Agreement, the Client shall reimburse all expenses referred to in Section 5(c) incurred through the date of termination, shall pay any outstanding and unpaid Monthly Retainer and shall pay all Owner Advocate Fees accrued through the date of termination.
Insurance. For the duration of the Agreement, Client shall maintain no less than $1,000,000 per occurrence and $1,000,000 in the aggregate in liability coverage for the property identified on the Proposal, which may be secured through a separate liability policy and/or an umbrella policy. Client shall provide proof of coverage within ten (10) days of signing the Proposal, and shall provide renewals, cancellations, modifications, and other pertinent documents, to Otium as received by Client. Otium shall maintain the right to request proof of coverage in compliance with these Terms and may suspend work until such time that proof of coverage is provided by Client.
Limitation of Liability. In no event shall Otium be responsible for any consequential, special, punitive or other damages. In no event shall Otium’s liability exceed the amount actually paid by Client to Otium pursuant to the terms of the Agreement. Without limiting the foregoing, Otium shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown or any other condition beyond the control of Otium affecting production or delivery in any manner.
General Provisions.
(a) Entire Agreement; Amendment. The Agreement contains the entire agreement of the parties hereto relating to the subject matter hereof, and that there exists no further agreement between the parties with respect to any aspect of the subject matter hereof. No amendment, waiver or modification of the Agreement shall be valid or binding unless made in writing and duly executed by each of the parties hereto.
(b) Notices. All notices which may be or are required to be given pursuant to the Agreement shall be (i) either delivered in person or sent via postage prepaid, certified or registered mail, return receipt requested, and (ii) addressed to the party to whom sent or given to such address as any party hereto may have given to the party hereto in such manner. If delivered, such notice shall be deemed given when received; if mailed, such notice shall be deemed made or given five (5) days after such notice has been mailed, as provided above.
(c) Independent Contractor. Otium shall be an independent contractor, and nothing in the Agreement shall be deemed or construed (i) to create a partnership or joint venture between Otium or any subsidiary thereof and the Client, (ii) to cause Otium to be responsible in any way for the debts, liabilities or obligations of the Client or any other party, or (iii) to constitute Otium or any of its employees as employees, officers or agents of the Client.
(d) Standard of Care. Otium (including any person or entity acting for or on behalf of Otium) shall not be liable for any mistakes of fact, errors of judgment, for losses sustained by the Client or any of its subsidiaries or for any acts or omissions of any kind (including acts or omissions of Otium), unless caused by intentional misconduct or gross negligence of Otium as finally judicially determined by a court of competent jurisdiction.
(e) Miscellaneous. The Agreement and the rights and obligations of the parties hereunder shall be governed by the laws of the State of Texas. No delay or failure by any party in exercising any of their rights, remedies, powers, or privileges hereunder, at law or in equity, and no course of dealing among the parties or any other person shall be deemed to be a waiver by any party of any such rights, remedies, powers, or privileges, even if such delay or failure is continuous or repeated, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise thereof by any party. Every portion of the Agreement is intended to be severable. Whenever possible, each such provision shall be interpreted in such manner as to be valid and enforceable under applicable law, but if, such provision shall be deemed severed here from and shall be unenforceable to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of the Agreement. The Proposal may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together in conjunction with these Terms, shall constitute one agreement. The Proposal may be executed and delivered by facsimile, email or other electronic means with the same force and effect as if it were a manually executed and delivered counterpart.