TERMS AND CONDITIONS

 

1. Parties; Work. “Contractor” means Pro Trim Tree Services LLC, acting by and through its authorized representatives, employees, and subcontractors. “Customer” means the person or persons (collectively) accepting these Terms by virtue of engaging the Contractor, accepting a proposal or estimate, or paying Contractor, jointly and severally. Contractor is expressly permitted to engaged subcontractors for performance of all or any portion of the Work. These Terms & Conditions (these “Terms”), together with the estimate or proposal into which they are incorporated, as well as all addenda and exhibits included therewith, as well as any additional pages describing the Work appended thereto, constitute the entire, final, and exclusive agreement between Contractor and the Customer concerning the subject matter hereof (collectively, the “Agreement”). The Agreement represents the entire, final, and exclusive form of agreement and understanding made by and between the parties with respect to the subject matter contained therein, and expressly supersedes all prior and contemporaneously agreements, representations, and understandings made by or between the parties with respect to the subject matter thereof. All capitalized terms in a proposal or estimate shall have the meanings ascribed to them in these Terms. The term “Work” means the written scope of work set forth in an estimate or proposal (and any additional pages describing the Work appended thereto), together with any modifications, additional/supplemental work, or change orders. “Substantial Commencement” means the earlier of the date upon which either (i). equipment is delivered to the Customer’s property address (the “Property”); or (ii). the actual performance of labor at the Property is undertaken. “Substantial Completion” means the date upon which the Work has been determined by Contractor to be substantially accomplished, less any punch list or minor corrective work. This Agreement shall not be enforceable against Contractor unless and until either (i). Contractor signs and returns a copy of the estimate or proposal to Customer, or (ii). Contractor begins performance of the Work. All commencement, completion, and other dates stated by Contractor are ROUGH APPROXIMATIONS only, and are not intended to be or be construed as guarantees of any kind. Customer grants Contractor the right to take ‘before and after’ photos and to publish the Property on a ‘references’ list which may be given to prospective customers.

2. Terms of Payment. Time is of the essence with regards to all of Customer’s obligations under this Agreement. If any payment is not received by Contractor when due, Contractor shall have the right, in addition to all other remedies it may have, to stop performance of the Work and keep the job idle until all past due payments are received. Furthermore, in the event of nonpayment, Contractor shall be considered excused by Customer from paying, and shall not be considered in breach of this Agreement for refusing to pay any material, equipment and/or labor suppliers or any subcontractors which come due during the period of time in which Customer’s payments remain outstanding. If Customer makes payment directly to any material, equipment and/or labor suppliers or any subcontractors of Contractor directly, Contractor is expressly released from liability for Customer’s payment of inaccurate or duplicate charges. Payment by Customer of such sums shall not relieve Customer of its obligation to pay Contractor in accordance with the provisions of this Agreement.

3. Additional Work. Contractor is expressly permitted, but is not required, to perform work additional and/or supplemental to the Work which Contractor determines is reasonably necessary to a completed job, and Customer’s execution of this Agreement shall constitute Customer’s prior written authorization and request for the same. The cost for such additional or supplemental work shall be agreed upon in a change order, or, if no such change order is executed, then the cost shall be at Contractor’s standard and customary labor rates, together with the cost of all materials and equipment, plus twenty percent (20%) on all of the foregoing. The Customer acknowledges that is their sole responsibility to, prior to Contractor’s commencement of Work, inform the Contractor of any pre-existing damage, defects, or conditions at the Property that may affect the Work. Contractor is not responsible for the correction, repair, or replacement of any conditions or property arising from or relating to hidden or pre-existing conditions at the Property. Customer understands and agrees that the Indemnified Parties shall not be liable for damage to, or responsible for the replacement of any property or aspects of the Property.

4. Cumulative Remedies; No Oral Agreements. All rights and remedies of Contractor arising from or relating to this Agreement are in addition to, and not to the exclusion of any other rights or remedies which may be available to Contractor, whether at law or in equity. Contractor and Customer agree that neither party, nor its agents (whether actual or apparent) have the capacity or authority to alter or modify the provisions of this Agreement orally. This Agreement may only be amended in the form of a writing signed by an authorized representative of Contractor. This Agreement may be executed in counterparts (electronic or otherwise), each of which shall constitute an original but, when taken together, shall constitute one and the same Agreement. If the Customer includes more than 1 person, all rights of Contractor against Customer, and all liability of Customer arising from or relating to this Agreement shall be joint and several. No failure to enforce this Agreement or to insist upon the Customer’s strict performance hereunder by Contractor shall be deemed a waiver of Contractor’s rights hereunder.

5. Customer’s Responsibilities. Customer is solely responsible and liable for all of the following: (i). providing a storage and staging area on the Property for Contractor’s equipment and materials; (ii). removing, relocating, protecting from the Work (and reinstalling after the Work) all personal property, fixtures, vehicles, equipment, and other items present at the Property which is in proximity to Contractor’s Work (and Contractor is expressly authorized, but is not required, to remove and relocate any such items, and any damage resulting therefrom shall not be the responsibility of Contractor); (iii). obtaining permission from the property owner for Contractor’s agents to enter upon their land in order to access the Work area (and in such instance Customer hereby agrees to indemnify, defend, and hold harmless Contractor from and against any loss, liability, injury, damage, death, cost, fee, fine, or expense arising from or relating to Contractor’s agent’s entrance upon such land); and (iv). coordinating with other contractors and subcontractors and preventing such contractors and subcontractors from interfering with the Work (and in such instance Contractor shall have no liability for damages resulting therefrom); and (v). Any and all interior or exterior damage, loss, or destruction resulting from fire, flood, or any weather events at the Property before, during, and after the Work. In the absence of a written change order signed by Contractor, Contractor is not responsible for the repair, correction, or replacement of any portion of the Property or Work damaged by intervening or superseding causes, such as weather events.

6. Limitation of Liability. Notwithstanding anything contained in this Agreement or applicable law to the contrary, Contractor shall not under any circumstances be liable to Customer, the Property owner, or any third party for any indirect, special, incidental, consequential, punitive, or exemplary damages, including, but not limited to lost profits, arising from or relating to this Agreement, the Work, or the actions, inactions, or negligence of any of the Indemnified Parties, even if Contractor has been made aware of the possibility of such damages. To the maximum extent permitted under applicable law, the total amount of damages which Contractor may be held liable to Customer for shall not exceed the Total Agreement Amount. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE CUSTOMER acknowledgeS, understandS, and agreeS that, regardless of any statute or law to the contrary, any claim or action arising out of or related to the WORK or thIS Agreement must be filed within 1 year(s) after said claim or cause of action arose or shall be forever barred.

7. Fees & Costs; Collections. In the event any sum due Contractor hereunder remains outstanding past 30 days, Contractor shall be authorized to charge, and Customer hereby agrees to pay, interest on such outstanding amount at the rate of 2% per month from the date when due. In the event that any legal action is taken by either party to enforce any provision of this Agreement against the other party, the prevailing party therefrom shall be entitled to recover from the non-prevailing party all costs, fees, and expenses arising from such legal action, including accounting costs, court costs, attorneys’ fees, and all other reasonably related expenses. In the event the Customer breaches this Agreement, or attempt to terminate the same prior to payment in full, the Customer shall be liable to Contractor for, in addition to all other damages, all costs, fees, and expenses incurred or likely to be incurred by Contractor, including restocking and similar fees associated with materials ordered for the Work. Customer acknowledges that nonpayment may result in a claim of lien being placed on the Property.

8. Venue & Jurisdiction. Venue for any legal action, or mediation arising from or relating to (i). this Agreement; (ii). the Work; or (iii). the action or inaction of Contractor or its employees, contractors, or agents while on or at the Property, shall be proper, convenient, and exclusively held in the courts of the county wherein Contractor’s principal place of business is located. Prior to initiating any legal action against Contractor, Customer covenants to participate in mandatory pre-suit mediation between Customer and Contractor as set for the below. Failure to do so will entitle Contractor to recover its attorney’s fees and court costs incurred in defending and/or dismissing such suit.

9. Waiver of Jury Trial. BOTH PARTIES HERETO EXPRESSLY AND IRREVOCABLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION ARISING FROM OR RELATING TO THIS AGREEMENT OR THE WORK, AND EXPRESSLY CONSENT TO THE JURISDICTION AND VENUE OF THE FOREGOING COURTS.

10. Mandatory Pre-Suit Mediation. AS AN EXPRESS AND ABSOLUTE CONDITION PRECEDENT TO THE INSTITUTION OR MAINTENANCE OF ANY ACTION ARISING FROM OR RELATED TO THIS AGREEMENT, EXCEPT FOR ACTIONS BY Contractor AGAINST CUSTOMER FOR NONPAYMENT, THE PARTIES EXPRESSLY AGREE TO FIRST ATTEND MANDATORY PRE-SUIT MEDIATION. MEDIATION SHALL OCCUR WITHIN NINETY (90) DAYS OF A PARTY’S REQUEST FOR THE SAME, WHICH SHALL BE IN WRITING. MEDIATOR’S FEES SHALL BE BORNE IN EQUAL SHARES BY THE PARTIES. A PARTY’S REFUSAL TO ATTEND MEDIATION OR TIMELY SELECT A MEDIATOR SHALL RELEASE THE OTHER PARTY FROM THE CONDITION PRECEDENT ESTABLISHED HEREIN. 

11. Indemnification; Release of Liability. To the fullest extent permitted by law, the Customer hereby covenants and agrees to indemnify, protect, defend, save, and hold harmless Contractor and its agents, affiliates, clients, suppliers, employees, and customers, as well as the employees, contractors, agents, customers, and suppliers of each of them (collectively, the “Indemnified Parties”) from and against any and all claims, allegations, actions, liabilities, losses, damages, expenses, and costs, including, but not limited to reasonable attorney’s fees, brought or alleged against, or incurred by any of the Indemnified Parties arising out of or resulting from the Customer’s actions, inactions, errors, omissions, breach of this Agreement, or negligence, as well as any conditions present on, at, or near the Property, and as well as any violations of applicable law by the Contractor as a result of performing the Work (such as tree permits). Customer hereby expressly, absolutely, and irrevocably waives all defenses, whether arising in equity or at law, which may now or hereafter be available to Customer, as to the validity and enforcement of this Agreement, including, but not limited to duress, estoppel, failure or lack of consideration, fraud, misrepresentation, lack of capacity, unconscionability, unclean hands, or undue influence. The Customer hereby expressly, irrevocably, voluntarily, and knowingly waives, releases, and discharges all Indemnified Parties from any and all claims, demands, and causes of action of any kind, whether at law or in equity, arising from or relating to any loss, damage, injury, or death, even if caused by an Indemnified Party, occurring on, at, or near the Property, or relating to the Work.

12. No Warranty. There are no warranties or guarantees made by Contractor in regards to the Work, and any implied warranty which may be applicable to the same is hereby expressly disclaimed by Contractor.

13. Force Majeure. Contractor’s performance of its Work may be delayed, prevented, made impracticable, or made cost prohibitive due to unforeseeable and unavoidable delays or circumstances, including, but not limited to, those caused by federal, state or municipal actions, statutes, ordinances or regulations, acts of god, pandemics, epidemics, biological risks, public health emergency, state of unrest or emergency, hurricanes, earthquakes, war, terrorism, civil strife, strike, material or labor shortage, increase in the cost of materials or labor, or any act, condition, thing, or circumstance which is either beyond Contractor’s reasonable control, is unforeseen or unanticipated by Contractor, or would render Contractor’s continued performance impossible, impracticable, or cost ineffective as determined by Contractor in its sole and absolute discretion (each, a “Force Majeure Event”, and collectively, “Force Majeure Events”).  If Contractor determines, in its sole and absolute discretion, that a Force Majeure Event has occurred, then Contractor shall be entitled to, at its option, do any of the following: (i). receive a reasonable extension and modification of the terms of this Agreement (including the Agreement Amount and schedule); or (ii). suspend or terminate this Agreement or Change Order (as the case may be), in which case Customer shall be responsible for all actual costs, fees, and expenses actually incurred by Contractor to the date thereof, together with all costs, fees, or expenses to be incurred thereafter which cannot be reasonably avoided by Contractor. Under no circumstances shall Contractor be deemed in breach of this Agreement, or to have abandoned the project in the event of a Force Majeure Event. 

14. Deposit/Refund: Once Pro Trim Tree Services receives the required 15% deposit, that will then trigger the scheduling process and all additional prep work associated with the agreed upon job.  The deposit is non-refunable.  The job can be rescheduled with no penalty by either customer or contractor.  The deposit can also be applied to future invoice agreements if the agreed upon job had to be canceled for unforeseen circumstances.