THIS AGREEMENT by and between Green Collar Lawns and Landscapes, Inc., a Virginia stock corporation (“Company”) and the undersigned (“Customer”).  This Agreement consists of (1) the scope of work and cost (the “SOW”) listed on this page 1 and (2) the Terms of Service attached hereto as Exhibit A and incorporated as though fully set forth herein (the “TOS”) (the SOW and TOS are collectively referred to as the “Agreement”) (Company and Customer are individually a “Party” and collectively the “Parties).

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1. Scope of Services.  

 

1. Beginning on the Services Start Date, and extending for the duration of the Term hereof, Company shall perform the Standard Services and Additional Services indicated in the SOW above in accordance with the Services Schedule. “Services Schedule” means weekly Services on the day of the week indicated in the SOW from April 1st through March 31st of each calendar year, and biweekly (once every other week) from November 1 through December 31. From time to time, the Parties may orally or through a writing agree on certain additional and incidental services to the SOW to be performed under this Agreement; which may, but is not required to be reduced to writing. Whether reduced to writing or agreed to as described in the foregoing sentence, Customer shall be obligated for the payment of the amount of Services performed, and goods provided (if any), by Company hereunder; and any electronic, oral, or written agreement between the Parties shall serve as a binding addendum to the SOW  (each agreement an “Addendum to the SOW”). Any such Addendum to the SOW will serve to amend and supplement the then existing authorized SOW and be governed and interpreted under the terms and conditions of this Agreement (the terms and scope of the SOW and any Addendum to the SOW being defined collectively herein as, the “Services”). 

 

The manner and means by which Company chooses to complete the Services are in Company’s sole discretion and control.  In performing the Services, Company shall provide its own equipment, tools and other materials at its own expense. Customer shall make available the necessary dates, time, and space convenient for Company to perform the Services. Company shall perform the Services necessary to complete the Services in a timely and professional manner consistent with industry standards, and at a location, place and time, which Company and Customer mutually deem appropriate.  Company will make its progress on performing the Services known and available to Customer upon its written request. Furthermore, the Parties hereby acknowledge and agree that Company shall not be responsible for any damage, costs, or expenses incurred by Customer (or its clients, agents, or contractors) resulting from or relating to any faulty, improper, or incorrect measurements or specifications provided by Customer to Company (or its clients, agents, or contractors) related to the Services.

 

1. Company hereby sells, transfers and conveys, and Customer hereby purchases those specific goods identified and described in, and, without limiting the foregoing, otherwise incidental to, the SOW (and any Addendum to the SOW) (the “Goods”).  Customer shall pay Company (or its specifically designated agent, contractor, or assigns) for his or her purchase of the Goods and Company’s delivery of the same hereunder in accordance with Section 2 below.

 

2. Compensation; Payment Terms.  Customer shall pay Company for the Services performed and Goods purchased at those amounts and rate(s) set forth in the SOW (the “Payment”) for each Service Visit. For purposes of this Agreement, a “Service Visit” is when Company’s employees or contractors perform Services at the Service Address listed in the SOW, excluding any Call Back (as defined below) services. Customer hereby agrees that due to the nature of the work Company provides, certain additional services may be required or recommended, whether anticipated or unanticipated by Company. Accordingly, Customer shall pay Company for any additional Services agreed to between the Parties (as described in Section 1(A) herein) and performed hereunder at the amounts and rate(s) set forth in the SOW and any Addendum to the SOW for additional Services.

 

2.1 Payment Delivery.  After each calendar month during the Term, Company will generate an invoice (each an “Invoice”) for the Payment for the Services rendered and Goods supplied during the prior calendar month. Customer gives Company the right to charge the credit card Company has on file for payment of the Services after the Invoice is generated. If Customer does not have a credit card on file with Company, Customer shall pay the amounts owed in the Invoice within fifteen (15) days of the date Company generates that Invoice. Notwithstanding the aforementioned, the Parties hereby acknowledge and agree that Company shall not be required to deliver any Goods or complete any future Services, if applicable, until and unless the entire Payment for each Invoice issued is paid in full.  Any amounts owed by Customer to Company and not paid when due hereunder shall bear interest at the rate of six and 00/100 percent (6.00%) per annum commencing on the first (1st) day after the final due date of the Payment and extending until such amount is paid in full. Customer shall also be liable to Company for Company’s reasonable costs incurred in enforcing the terms and conditions of this Agreement, irrespective of whether suit is filed, including reasonable attorneys’ fees.  

 

2.2 Taxes.  Customer shall bear the cost of all applicable federal, state, and local taxes incurred in connection with the sale and purchase of the Goods and Company’s performance of Services.  

 

2.3 Mechanic’s Lien.  Customer hereby consents and agrees that Company may file and maintain any mechanic’s or material supplier’s lien or maintain any claim against Customer’s real estate or improvements located thereon, including for any Goods sold hereunder, for or on account of any Services performed, or to be performed, under this Agreement, labor performed, and Goods sold under this Agreement.

 

3. Independent Contractor Relationship.  It is the express intention of the Parties that Company is an independent contractor. Neither Party is an agent, representative, joint venture, or partner of the other Party.  Neither Party shall have any right, power, or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either of the Parties. 

 

4. Term.  The Term of this Agreement will commence on the Effective Date and will continue in effect until either Party terminates this Agreement as provided below.  

 

4.1 Termination.  Company may terminate this Agreement immediately upon delivery of written notice to Customer. Customer may terminate this Agreement upon delivery of five (5) days prior notice to Company. Company may also cease the performance of the Services without penalty if Customer fails to pay an Invoice on or before the time it is due and payable, becomes insolvent, is subject to a bankruptcy proceeding, or makes an assignment for the benefit of creditors. Any cessation and/or termination by Company shall be without prejudice to any other rights, which Company may have against Customer under this Agreement or applicable law. 

 

4.2 Survival.  Upon termination or expiration, all rights and duties of the Parties toward each other will cease except: (a) the Customer shall pay, within ten (10) days of the effective date of termination, all amounts owing to Company for Services performed for the Customer prior to the termination date in accordance with the provisions of Section 1 and Section 2 hereof.

 

5. Warranties and Limitations.

 

5.1 Each Party hereto represents and warrants that: (a) each Party has the full corporate or individual contractual capacity, right, power, and authority to enter this Agreement and to perform the obligations required of each hereunder; (b) the execution of this Agreement by such Party, and the performance by such Party of their obligations and duties hereunder do not, and will not violate any agreement to which such Party is bound; and (c) when executed and delivered by such Party, this Agreement shall constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.  Company warrants that it and its employees and agents are licensed, as necessary under applicable Virginia law and regulations, to perform the Services under this Agreement.

 

5.2 Services.  OTHER THAN PROVIDED IN SECTION 5.1, COMPANY HEREBY DISCLAIMS ANY WARRANTIES UNDERLYING OR RELATED TO THE SERVICES PERFORMED HEREUNDER INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE PERFORMANCE AND MANNER, AND ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL, OR WRITTEN AT LAW OR STATUTE. THE WARRANTIES CONTAINED IN SECTION 5.1 ARE MADE IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES, WHETHER ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WORKMANLIKE PERFORMANCE AND MANNER.

 

5.3 Goods.  Company makes no warranty as to the Goods purchased by Customer hereunder, and unless Customer provides Company with written notice of any nonconformity within five (5) days after Company delivers the Goods to Customer, Customer hereby accepts the Goods “AS IS.” COMPANY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF QUALITY, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

5.4 Personal Use.  Customer warrants that the Goods are being purchased, and will be used by it, solely for personal, family, and/or household purposes.   

 

5.5 No Liability for Indirect or Consequential Damages.  COMPANY HEREBY DISCLAIMS ANY AND ALL LIABILITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES (INCLUDING LOSS OF USE AND PROFITS) ARISING OUT OF THIS AGREEMENT OR WITH RESPECT TO THE INSTALLATION, USE, OR OPERATION OF ANY SERVICES OR GOODS PROVIDED PURSUANT TO THIS AGREEMENT, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE, EVEN IF THE COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

 

5.6 Maximum Liability. COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE GOODS OR SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID BY CUSTOMER TO COMPANY PURSUANT TO THIS AGREEMENT.

 

6. Indemnification.  Customer shall defend, indemnify and hold Company harmless from and against any claim, loss, costs, or damages, including, but not limited to reasonable attorneys’ fees, arising out of or resulting from any action by a third party based upon (i) any negligent, reckless, or intentionally wrongful act or omission of the Customer or Customer’s assistants, employees, agents, or contractors; or (ii) any breach, anticipated or alleged breach, by the Customer of any of the terms, conditions, covenants, representations, or warranties contained in this Agreement.

 

7. Assignment.  Any purported transfer, assignment, or delegation by Customer of the rights or duties arising from this Agreement without the prior written consent of Company shall be null and void ab initio and of no force or effect.  Subject to the foregoing restriction, this Agreement shall inure to the benefit of the Parties and their successors, transferees, and assignees.

 

8. Dispute Resolution; Governing Law; Venue; Waiver of Jury Trial.

 

8.1 DISPUTE RESOLUTION – MEDIATION AND ARBITRATION, NO CLASS ACTIONS. ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR THE SERVICES SHALL BE RESOLVED THROUGH A MEDIATION – ARBITRATION APPROACH.   

 

(A) MEDIATION.  THE PARTY INITIATING THE DISPUTE SHALL SEND WRITTEN NOTICE OF THE DISPUTE TO THE OTHER PARTY (“NOTICE”). THE NOTICE SHALL BE SENT PURSUANT TO SECTION 9.3 AND SHALL (A) DESCRIBE THE NATURE AND BASIS OF THE CLAIM OR DISPUTE; (B) SET FORTH THE SPECIFIC RELIEF SOUGHT; AND (C) INCLUDE THE NAMES OF THREE (3) PROSPECTIVE MEDIATORS. ALL OF WHICH SHALL BE FROM THE MCCAMMON GROUP.  THE MEDIATION SHALL BE HELD IN THE CITY OF NORFOLK, VIRGINIA AND SHALL LAST NO LESS THAN EIGHT (8) HOURS, UNLESS A MUTUALLY AGREED UPON SETTLEMENT IS REACHED BY THE PARTIES.  THE PARTIES SHALL EQUALLY SPLIT THE MEDIATOR’S FEES. 

 

(B) ARBITRATION. IF THE DISPUTE IS UNABLE TO BE SETTLED AT MEDIATION, THE PARTIES SHALL SUBMIT THE DISPUTE TO ARBITRATION.  THE ARBITRATION SHALL BE CONDUCTED BEFORE A NEUTRAL SINGLE ARBITRATOR FROM THE MCCAMMON GROUP (DIFFERENT FROM THE INDIVIDUAL WHO WAS THE MEDIATOR), WHOSE DECISION WILL BE FINAL AND BINDING.  THE ARBITRAL PROCEEDINGS WILL BE GOVERNED BY THE MCCAMMON GROUP ARBITRATION RULES (THE “RULES”).  IF THE PARTIES ARE UNABLE TO AGREE UPON THE SELECTION OF AN ARBITRATOR WITHIN THIRTY (30) DAYS AFTER THE DATE OF THE MEDIATION, THE ARBITRATOR WILL BE SELECTED BY THE MCCAMMON GROUP.  THE RULES ARE AVAILABLE AT HTTPS://WWW.MCCAMMONGROUP.COM.  ALL ISSUES ARE FOR THE ARBITRATOR TO DECIDE, INCLUDING THE APPLICABILITY OR SCOPE OF THIS ARBITRATION CLAUSE, BUT THE ARBITRATOR IS BOUND BY THIS AGREEMENT. THE PARTIES AGREE TO SPLIT THE ARBITRATOR’S FEES EVENLY, BUT THE PREVAILING PARTY IN THE ARBITRATION SHALL BE ENTITLED TO RECOVER FROM THE NON-PREVAILING PARTY ALL COSTS AND FEES INCURRED BY SUCH PREVAILING PARTY IN THE MEDIATION AND ARBITRATION, INCLUDING, WITHOUT LIMITATION, ALL ATTORNEYS’ FEES AND OUT-OF-POCKET EXPENSES AND ALL OTHER REASONABLE COSTS OF ENFORCEMENT OF THE TERMS AND CONDITIONS HEREOF. AS USED IN THIS SECTION 8.1, THE “PREVAILING PARTY” IN THE ARBITRATION MEANS THE PARTY IN WHOSE FAVOR THE ARBITRATOR ISSUES A FINAL, BINDING DECISION.   

 

(C) THE ARBITRATION SHALL BE CONDUCTED IN NORFOLK, VIRGINIA AND SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF VIRGINIA.  THE ARBITRATION WILL BE CONDUCTED IN THE ENGLISH LANGUAGE. JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. THE ARBITRATOR, AND NOT ANY FEDERAL, STATE, OR LOCAL COURT, SHALL HAVE EXCLUSIVE AUTHORITY TO RESOLVE ANY DISPUTE RELATING TO THE INTERPRETATION, APPLICABILITY, UNCONSCIONABILITY, ARBITRABILITY, ENFORCEABILITY, OR FORMATION OF THIS AGREEMENT, INCLUDING ANY CLAIM THAT ALL OR ANY PART OF THIS AGREEMENT IS VOID OR VOIDABLE. 

 

(D) EACH PARTY AGREES THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE RESOLUTION PROCEEDINGS PURSUANT TO THIS AGREEMENT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. FURTHER, EACH PARTY AGREES THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR MORE THAN ONE PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS ARBITRATION CLAUSE SHALL BE NULL AND VOID.  

 

8.2 Governing Law; Venue.  If a court of competent jurisdiction finds the foregoing arbitration provision in Section 8.1 invalid, the terms, conditions, and provisions of this Agreement shall be governed by and under the laws of the Commonwealth of Virginia, without regard to its conflict of law principles.  The Parties agree that any dispute or controversy arising out of, relating to or in connection with the interpretation, validity, construction, performance, breach or termination of this Agreement shall be exclusively resolved in state courts located in the City of Norfolk, Commonwealth of Virginia, and each Party consents to the jurisdiction of said courts and the venue located therein. 

 

8.3 Equitable Relief.  If a court of competent jurisdiction finds the foregoing arbitration provision in Section 8.1 invalid, the Parties may, without limiting any other remedies, rights, or recourse under the laws of the Commonwealth of Virginia, apply and pray to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, specific performance, or other interim or conservatory relief, as necessary.  Further, the Parties hereby waive any statutory or common law requirement that any Party seeking to enforce the terms and conditions of this Agreement through equitable relief post an injunction bond.

 

8.4 Waiver of Jury Trial.  If a court of competent jurisdiction finds the foregoing arbitration provision in Section 8.1 invalid, unenforceable, or inapplicable, the Parties waive any right to a jury trial.  

 

9. Miscellaneous.

 

9.1 Entire Agreement; Modification.  This Agreement, along with any Schedules, including without limitation, any Addendum to the SOW attached hereto and incorporated herein, is the entire agreement of the Parties and supersedes any prior agreements between them, whether written or oral, with respect to the subject matter hereof.  

 

9.2 Amendment; Waiver.  Unless otherwise stated in this Agreement, any term or provision of this Agreement may be amended, and the observance of any term, waived only by a writing signed by the Party to be bound.  No waiver of any default of the terms or conditions of this Agreement will be deemed to be a waiver or continuing waiver of any other default, or any subsequent default of any terms or conditions of this Agreement, but will apply solely to the instance to which such waiver is directed.

 

9.3 Force Majeure.  Company shall not be responsible for delays in producing, procuring, or delivering the Goods or performing the Services caused by: acts of God, pandemics, fires, riots or insurrection, strikes or differences with or among workmen, government interference, inability to secure transportation, weather conditions, timing of delivery from Company’s vendors or suppliers, or other contingencies beyond Company’s control.  Should any of the foregoing conditions continue for a period of sixty (60) days after its first occurrence, Company may cancel this Agreement without incurring any liability to Customer.

 

9.4 Notice.  Any notices or correspondence to Customer shall be sent to the Service Address listed in the SOW of this Agreement. Any notices or correspondence to Company shall be sent to Green Collar Lawns and Landscapes, Attn: Tom Disisto, 3500 Virginia Beach Blvd, Suite 420, Virginia Beach, VA 23452.

 

9.5 Severability.  If a court of competent jurisdiction holds any provision of this Agreement, or its application to any person, place or circumstance, to be invalid, unenforceable, or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of this Agreement and such provision as applied to other persons, places and circumstances, shall remain in full force and effect.

 

9.6 Attorneys’ Fees.  If a court of competent jurisdiction finds the foregoing arbitration provision in Section 8.1 invalid and the Parties proceed through litigation, the Party in whose favor a final judgment, order, or decree is rendered or entered shall be entitled to recover from the non-prevailing Party all costs and fees incurred by such prevailing Party in such action, including, without limitation, all attorneys’ fees and out-of-pocket expenses and all other reasonable costs of enforcement of the terms and conditions hereof. 

 

9.7 Counterparts; Headings.  This Agreement may be executed via written, electronic of facsimile signature and in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one (1) and the same instrument.  The headings provided for herein are for convenience and reference only, and shall not be deemed a substantive part of this Agreement.