STOCKER’S LANDSCAPING, LLC (“STOCKER”) TERMS AND CONDITIONS OF SERVICE
- GENERAL PROVISIONS: This Agreement consists of the attached Estimate and the terms and conditions stated herein and is the complete agreement between the parties (collectively, the “Agreement”). The terms and conditions of this Agreement and any attached pages are an important part of the Agreement and are hereby incorporated by reference and accepted by Customer. Customer acknowledges that Customer has read this Agreement, understands it, and agrees to be bound by its terms and conditions. IN THE CASE OF A CONFLICT BETWEEN THIS AGREEMENT AND ANY OTHER DOCUMENTATION SUPPLIED BY CUSTOMER, INCLUDING BUT NOT LIMITED TO, A PURCHASE ORDER OR PROPOSAL, THE CONTENTS, TERMS AND CONDITIONS OF THIS AGREEMENT SHALL PREVAIL. THIS PROVISION, AND EACH AND EVERY OTHER PROVISION OF THIS AGREEMENT, MAY NOT UNDER ANY CIRCUMSTANCES BE MODIFIED, CHANGED, AMENDED OR WAIVED VERBALLY, BUT MAY ONLY BE MODIFIED, CHANGED, AMENDED OR WAIVED BY A WRITTEN AGREEMENT EXECUTED BY ALL PARTIES HERETO. Neither party shall be bound by any statements or representations not contained in this Agreement. Customer is responsible for obtaining all licenses and permits and for paying all applicable taxes and fees unless otherwise agreed to in writing. If the Agreement is not executed, payment by Customer or acceptance by Customer of the services, landscaping, plants materials, and/or product set forth in the Estimate of this Agreement shall constitute acceptance of the terms and conditions of this Agreement. If Customer fails to make payment when due, Stocker shall have the right, in its sole discretion, to reject performance of current or future services until the account is current. Customer’s failure to make payment when due is a material breach of this Agreement. Customer may not assign this Agreement without Stocker’s prior written consent.
- VALIDITY PERIOD: The price quotes provided in the proposal are valid for 30 days unless otherwise specified in writing by Stocker.
- PAYMENT TERMS: Except as otherwise agreed in writing by Stocker, the payment for the services shall be due upon Customer’s receipt of an invoice. A mobilization payment up to fifty percent (50%) will be invoiced upon acceptance of Customer’s order. At Stocker’s sole option, Customer shall pay cash in advance, or upon delivery, or as otherwise specified by Stocker. In the event that Customer defaults on its obligation to pay each invoice when due, then, in addition to all other rights and remedies available to it, Stocker shall have the option to withhold any further shipments of materials and/or the provision of services, if any, until Customer’s account is fully paid. Further, in the event payment is not received according to this Agreement, Stocker may, at its discretion, assess interest at the maximum rate allowed by law or at the rate of 1.5% per month, whichever is less. Customer also agrees to pay all costs, expenses and reasonable attorney’s fees incurred by Stocker in pursuit of payment including, but not limited to, collection agency commissions.
- CANCELLATION: Any permitted cancellation must be made in writing and delivered to Stocker at its business address. Recognizing that Stocker’s damages arising from cancellation will be difficult to estimate or determine, the following charges shall be construed as liquidated damages representing an approximation of Stocker’s damages: if, prior to performance or purchase of any plants, landscaping, materials, product and/or equipment, Customer cancels this Agreement or any portion thereof, for any reason not attributable to Stocker, Customer agrees to pay Stocker an amount equal to twenty percent (20%) of the price of the plants, landscaping, materials, equipment, product and services canceled. If Customer cancels after shipment or purchase, Customer agrees to pay the above twenty percent (20%) of the price of the landscaping, plants, materials, equipment, products and services canceled, return the products already shipped, and to pay Stocker an additional amount equal to twenty percent (20%) of the value of the services, plants, landscaping, products, equipment, and returned materials to cover the estimated costs of transportation and restocking.
- STOCKER’S SERVICES: Customer further agrees that Stocker offers various levels of services and that the Customer, after reviewing the same, has contracted with Stocker to perform only the services described in writing in this Agreement. Stocker denies liability for plants, landscaping, materials, supplies, equipment or work provided by other persons or companies.
- SECURITY INTEREST: Customer grants to Stocker, and Stocker retains, a security interest in all plants, material, landscaping, equipment, and services thereof provided pursuant to this Agreement until the Customer shall have made full payment for the plants, material, landscaping, equipment and services. Such interest is intended to be effective as a purchase money security interest. Customer agrees that Stocker may file this Agreement as a financing statement. In the event of failure to make payment on the due date in
accordance with terms designated, the entire balance shall become due and payable at once. In case of default of payment, and to the extent permitted by law, Stocker shall have the right to take possession of the plants, material, landscaping, product and equipment immediately, wherever it may be found, and remove it with or without process of law and may retain all money paid hereunder. Customer agrees to pay Stocker’s costs of collection, including without limitation reasonable attorneys’ fees and legal expenses, and that the same are secured by the security interest granted herein. Customer shall not sell, prior to payment (except in the ordinary course of business) said plants, landscaping, material, products or equipment without prior written permission of Stocker.
- LIMITATION OF WARRANTY; WARRANTY DISCLAIMER: SUBJECT TO THE LIMITATIONS BELOW, STOCKER WARRANTS THAT THE SERVICES SHALL BE FREE FROM DEFECTS IN WORKMANSHIP FOR A PERIOD OF THIRTY (30) FROM THE DATE OF INSTALLATION, PROVIDED, HOWEVER, THAT STOCKER’S SOLE LIABILITY, AND CUSTOMER’S SOLE REMEDY, UNDER SAID WARRANTY, SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT OF THE DEFECTIVE SERVICE OR PORTION THEREOF, WHICH STOCKER DETERMINES TO BE DEFECTIVE, AT STOCKER’S SOLE OPTION AND SUBJECT TO THE AVAILABILITY OF SERVICE PERSONNEL AND MATERIALS, AS DETERMINED BY STOCKER. WHERE STOCKER PROVIDES PLANTS, LANDSCAPING, EQUIPMENT, MATERIALS OR ANY PART OF OTHERS, STOCKER WILL WARRANT THE EQUIPMENT, PARTS, OR MATERIALS ONLY TO THE EXTENT WARRANTED BY SUCH THIRD PARTY AND THIS WARRANTY IS EXPRESSLY LIMITED TO SUCH THIRD- PARTY WARRANTY. EXCEPT AS EXPRESSLY SET FORTH HEREIN, STOCKER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES PERFORMED OR THE PLANTS, LANDSCAPING, MATERIALS, PRODUCT, OR EQUIPMENT, IF ANY, SUPPORTED HEREUNDER. STOCKER IS ALSO NOT LIABLE FOR NOTIFYING CUSTOMER OF EQUIPMENT RECALLS. THIS WARRANTY DOES NOT APPLY TO ANY LANDSCAPING, PLANTS, EQUIPMENT, MATERIAL, PRODUCT OR OTHERWISE WHICH HAS BEEN SUBJECTED TO ABUSE, MISHANDLING, OR IMPROPER USE AS DETERMINED BY STOCKER OR IN INSTANCES WHERE CUSTOMER HAS FAILED TO FOLLOW STOCKER’S INSTRUCTIONS. Warranty service will be performed at no charge between the hours of 8:00 to 5:00 p.m. local time, Monday through Friday, exclusive of Stocker’s holidays. Warranty service requested to be performed at other than during Stocker’s normal work hours shall be chargeable at Stocker’s standard overtime rates. All repairs or adjustments that are or may become necessary under the warranty provisions of this Agreement shall be performed only by an authorized representative of Stocker. Any repairs, adjustments, or maintenance performed by Customer or anyone other than an authorized Stocker representative shall void all warranties.
- LIMITATION OF LIABILITY; LIQUIDATED DAMAGES: CUSTOMER AGREES THAT STOCKER SHALL NOT BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, TREBLE OR LIQUIDATED DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ECONOMIC LOSS DAMAGES OR LOSS OF PROFITS OF ANY KIND, DAMAGES ARISING FROM THE CUSTOMER, THE OPERATION OR FAILURE OF THE MATERIAL, LANDSCAPING, EQUIPMENT, PRODUCT AND/OR SYSTEM TO OPERATE, THIS AGREEMENT, OR THE INSTALLATION, USE, DESIGN OR FUNCTION OF ANY THIRD PARTY LANDSCAPING, PLANTS, PRODUCT, EQUIPMENT, MATERIAL AND/OR SYSTEM. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, CUSTOMER AGREES THAT STOCKER’S LIABILITY FOR PERSONAL INJURY, DEATH OR PROPERTY DAMAGE, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE TOTAL PURCHASE PRICE PAID FOR THE PRODUCT, SYSTEM AND/OR SERVICES. SUCH SUM SHALL BE CUSTOMER’S SOLE, COMPLETE AND EXCLUSIVE REMEDY AND SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES OR A LIMITATION OF LIABILITY AMOUNT AGREED ON BY THE PARTIES AND NOT AS A PENALTY. IN NO CIRCUMSTANCES WILL STOCKER BE HELD LIABLE FOR ANY CLAIMS, LOSSES, DAMAGES OR INJURIES ARISING FROM OR CAUSED BY THE CUSTOMER’S OR ANY OTHER PARTY’S PLANTS, LANDSCAPING, MATERIAL, PRODUCTS, SYSTEM, EQUIPMENT, ACTIONS, OR OMISSIONS. If Customer desires Stocker to assume greater liability, the parties shall amend this Agreement by attaching a rider setting forth the additional liability and additional amount payable by Customer for the assumption by Stocker of such greater liability, provided however, such rider shall in no way be interpreted to hold Stocker as an insurer.
412811 Last Modified: 9/2018
under this Agreement, release and discharge Stocker from and against all hazards covered by Customer’s insurance, it being expressly agreed and understood that no insurance company, insurer, or any other third party will have any right of subrogation against Stocker.
- ONE-YEAR LIMITATION OF ACTIONS; LEGAL FEES: To the fullest extent permitted by law, it is agreed that no suit or cause of action or other proceeding shall be brought against Stocker more than one (1) year after the date the service was performed, whether known or unknown when the claim arises or whether based on tort, contract, or any other legal theory. Stocker shall be entitled to recover from Customer all reasonable legal fees, court costs and expenses incurred in connection with Stocker enforcing the terms and conditions of this Agreement.
- FORCE MAJEURE: Stocker shall not be liable for any loss or damage of any kind resulting from delay, inability to deliver, or install, or to perform any other work under this Agreement on account of fire, flood, labor problems, access to premises, accidents, acts of civil or military authorities, acts of God, or from any other causes beyond Stocker’s control.
- GOVERNING LAW AND VENUE: This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana, not including the choice of law rules thereof, and each party by execution (or acceptance) of this Agreement hereby consents to exercise of exclusive jurisdiction and venue for any lawsuit arising under this Agreement or the relationship between the parties in the Circuit or Superior Courts of Vanderburgh County, Indiana. In the event that Customer fails to prove any claim against Stocker in a court of law and Stocker incurred attorney’s fees in defending said claim, Customer agrees to pay all legal fees, costs, and expenses of Stocker in defending said claim(s). Customer acknowledges and agrees that no such action may be filed unless the Customer has provided Stocker: (i) 30 days’ prior written notice of the nature of the claim, and (ii) an opportunity to cure any claim. In any action against Stocker, Customer waives trial by jury.
- EVENTS OF DEFAULT: Customer shall be in default of this Agreement upon the occurrence of including but not limited to, any of the following: (a) Customer’s failure to make due and punctual payment of any payment due pursuant to this Agreement; (b) Customer’s failure to perform any obligation under this Agreement; (c) An order, judgment or decree entered, with the approval or consent of Stocker, by any court of competent jurisdiction, approving a petition seeking reorganization of Customer or appointing a receiver, trustee, or liquidator (or other officer having power, under applicable law, similar to those of a receiver, trustee, or liquidator) of Customer or of all or a major portion of its assets, and such order, judgment, or decree shall continue unstayed and in effect for any period of sixty (60) consecutive days; (d) Customer fails to provide Stocker with adequate assurances of due performance under the Agreement, after receiving a written request for same from Stocker; or (e) Customer’s financial position materially deteriorates.
- SEVERABILITY: If any provision of this Agreement is held by any court or other competent authority to be void or unenforceable in whole or in part, this Agreement will continue to be valid as to the other provisions and the remainder of the affected provision. This Agreement may be executed simultaneously in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The parties agree that this Agreement may be signed by electronic transmission in portable document format or facsimile transmission and shall be deemed to be original signatures.
- INDEMNITY: TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND STOCKER FROM ANY AND ALL CLAIMS, DEMANDS, SUBROGATION CLAIMS BY CUSTOMER’S INSURERS, CAUSES OF ACTION, FINES, CONTROVERSIES, LIABILITIES, REGULATORY ACTIONS, SEIZURES OF EQUIPMENT OR SYSTEMS, LOSSES, DAMAGES, COSTS AND EXPENSES (INCLUDING, BUT NOT LIMITED TO ATTORNEY’S FEES AND EXPERT WITNESS AND LITIGATION EXPENSES AND COSTS) (HEREINAFTER COLLECTIVELY “CLAIMS”), ARISING FROM OR IN CONNECTION WITH ANY INJURY, DEATH, PROPERTY DAMAGE OR ANY OTHER CLAIM, WHETHER BASED UPON CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE, RELATING TO THIS AGREEMENT, THE BUSINESS RELATIONSHIP BETWEEN THE PARTIES, THE GOODS, PRODUCT, EQUIPMENT, SYSTEMS, COMPONENT PARTS, AND/OR SERVICES PROVIDED HEREUNDER, CUSTOMER’S USE, MODIFICATION, OR ALTERATION OF THE LANDSCAPING, PLANTS, GOODS, PRODUCT, EQUIPMENT, SYSTEMS OR COMPONENT PARTS, CUSTOMER’S FAILURE TO MAINTAIN THE PLANTS, LANDSCAPING, SYSTEMS, PRODUCT, GOODS AND/OR EQUIPMENT OR KEEP SUCH IN OPERATIVE CONDITION OR CUSTOMER’S BREACH OF THIS AGREEMENT. STOCKER RESERVES THE RIGHT TO SELECT COUNSEL TO REPRESENT IN ANY SUCH ACTION. IN NO EVENT SHALL STOCKER BE LIABLE FOR ANY DAMAGE, LOSS, INJURY, OR ANY OTHER CLAIM ARISING FROM ANY ALTERATIONS, MODIFICATIONS, CHANGES, OR MOVEMENTS OF THE PRODUCT, SYSTEM OR SERVICES BY CUSTOMER OR ANY THIRD PARTY. THE INDEMNITY PROVISIONS CONTAINED IN THIS AGREEMENT SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THE AGREEMENT AND SHALL APPLY REGARDLESS OF WHETHER OR NOT SEPARATE, SEVERAL, JOINT, OR CONCURRENT LIABILITY MAY BE IMPOSED ON STOCKER AND WHETHER OR NOT THE SAME IS CAUSED OR CONTRIBUTED TO BY THE NEGLIGENCE OF STOCKER, OR WHETHER OR NOT IT IS ALLEGED THAT STOCKER IN ANY WAY CONTRIBUTED TO THE CLAIMS OR IS LIABLE DUE TO A NON- DELEGABLE DUTY. NOTWITHSTANDING THE FOREGOING, THIS INDEMNITY PROVISION DOES NOT PURPORT TO INDEMNIFY STOCKER FOR ITS OWN NEGLIGENCE TO THE EXTENT SUCH INDEMNIFICATION IS CONTRARY TO LAW. CUSTOMER, FOR ITSELF AND ITS INSURERS, EXPRESSLY WAIVES ANY AND ALL LIMITATIONS OR LIABILITY CAPS, IF ANY, ON CUSTOMER’S INDEMNITY TO STOCKER ARISING FROM ANY APPLICABLE WORKERS COMPENSATION OR DISABILITY ACTS IN THE EVENT OF THE PERSONAL INJURY OR DEATH OF CUSTOMER’S EMPLOYEES, REPRESENTATIVES OR SERVANTS.
- INSURANCE; WAIVER OF SUBROGATION: Stocker will maintain levels of insurance it deems necessary and appropriate. It is understood and agreed by Customer that Stocker is not an insurer and that it is the Customer’s obligation to obtain and maintain any insurance covering any losses to property or personal injury or any other damage which may occur at the premises where Stocker landscaping, plants, equipment, product, materials, or services, which form the basis of this Agreement, are delivered, assembled, installed, used, or performed. Customer agrees to look exclusively to Customer’s insurer to recover for injuries or damage in the event of any loss or injury; that the amounts payable to Stocker hereunder are based upon the value of the plants, landscaping, equipment, material, product, system and/or services and the scope of liability set forth herein; and that Stocker is not guaranteeing that no loss will occur. Customer does hereby, for itself and all others claiming for it
412811 Last Modified: 9/2018