MAINSCAPE, INC. TERMS AND CONDITIONS
These Terms & Conditions apply to any work performed and materials supplied by Mainscape, Inc. (“Mainscape”) and are incorporated into any estimate, invoice, agreement, and/or quotation (“Agreement”) provided to you (“Customer”), and shall govern unless expressly excluded in writing by both parties. Notwithstanding anything to the contrary, the Agreement, together with these Terms & Conditions, form a binding Agreement between the parties.
1. Scope of Work. Mainscape shall carry out and complete landscape and/or snow-removal services described in the Agreement in a workmanlike manner consistent with production landscaping and production snow-removal standards, and shall have no obligation to execute any additional work unless otherwise agreed in writing between the parties and/or performed at the request of Customer. If work was performed by Mainscape at the request of Customer, and there is no agreed-upon writing regarding the cost of such work performed by Mainscape, then Customer shall owe Mainscape for said work at Mainscape’s (a) then-prevailing rates or (b) usual and customary charges for said work in the geographic area where the work was performed, whichever is less.
2. Inspections. Should Customer or any governmental body or inspector require any modification to the work covered under the Agreement, any cost incurred by Mainscape shall be added to the Agreement price as extra work and Customer agrees to pay for said extra work by Mainscape at Mainscape’s (a) then-prevailing rates or (b) usual and customary charges for said work in the geographic area where the work was performed, whichever is less.
3. Completion. Mainscape will use commercially reasonable efforts to complete a project in the established timeframe. However, Mainscape does not guarantee timely performance in the event of circumstances beyond its control, or circumstances that render the timely performance of Mainscape’s services to be commercially unreasonable.
4. Maintenance after Completion. Mainscape is only obligated to perform the work specified in the Agreement. The proper maintenance of the site shall be the obligation of the Customer following completion of the work by Mainscape, unless otherwise expressly agreed in writing by the parties.
5. Estimated Services. Customer recognizes and acknowledges that Mainscape is performing production landscaping and/or production snow-removal services and that implicit in those services is some degree of discretion afforded Mainscape to delay or skip certain services and/or scheduled visits based on snow or landscaping conditions; provided, however, that nothing herein excuses Mainscape from performing the frequency of its services if the consequence of doing so would be to render the premises in a condition that is not commercially reasonable for production landscape and/or production snow-removal services. ACCORDINGLY, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IF, DURING THE AGREEMENT PERIOD, MAINSCAPE HAS PROVIDED LANDSCAPING AND/OR SNOW-REMOVAL SERVICES SUCH THAT THE CONDITION OF CUSTOMER’S PREMISES IS CONSISTENT WITH PRODUCTION LANDSCAPING AND/OR SNOW-REMOVAL STANDARDS IN THE GEOGRAPHIC AREA OF THE PREMISES, THEN CUSTOMER HAS NO RECOURSE AGAINST MAINSCAPE IF MAINSCAPE DOES NOT PERFORM THE EXACT AMOUNT OF “VISITS” OR “SERVICES” THAT ARE REFERENCED OR SET FORTH OR REQUIRED BY AN AGREEMENT.
6. Timely Payment. If Customer fails to make payment within 14 days of the due date, the past-due balance shall accrue interest at the annual rate of 18% or the highest rate permitted by law, whichever is lower.
7. Collection/Legal Fees. Customer agrees to pay all collection fees and charges including but not limited to all legal and attorney fees, out-of-pocket expenses, and court costs that result should Customer default in payment of what is due to Mainscape under the Agreement, or is otherwise in default according to the Agreement.
8. Damages. Under no circumstances shall Mainscape be liable for any special, incidental or consequential damages. Under no circumstances shall mainscape be liable to customer for an amount in excess of any open invoices that have been unpaid by the customer at the time customer provides notice to mainscape of any alleged deficient performances under this agreement.
9. Acceptance of Work. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR IN ANY AGREEMENT, IF CUSTOMER DOES NOT PROVIDE EXPRESS WRITTEN NOTICE TO MAINSCAPE REGARDING ANY ALLEGED DEFICIENCIES IN THE PRODUCTS OR SERVICES IT HAS PROVIDED (OR FAILED TO PROVIDE) TO CUSTOMER WITHIN THIRTY (30) DAYS AFTER THE DATE ANY SUCH PRODUCTS OR SERVICES WERE PROVIDED, WHEN SUCH PRODUCTS OR SERVICES WERE TO HAVE OCCURRED, AND/OR AFTER ANY BILL HAS BEEN PAID BY CUSTOMER FOR SAID PRODUCT(S) OR SERVICE(S) (OR LACK THEREOF), THEN ALL SUCH PRODUCTS OR SERVICES (OR LACK THEREOF) SHALL BE DEEMED ACCEPTED IN FULL BY CUSTOMER, AND CUSTOMER SHALL HAVE NO RIGHTS OR ACTION OR RECOURSE AGAINST MAINSCAPE FOR ANY COMPLAINTS REGARDING SAID PRODUCTS OR SERVICES (OR LACK THEREOF) THAT IS BROUGHT TO THE ATTENTION OF MAINSCAPE AFTER THE EXPIRATION OF SAID THIRTY (30) DAY PERIOD.
10. Warranties and Exclusions. Mainscape shall not be liable for any damage caused by Acts of God (including, without limitation, extreme cold or drought, flooding, storms, rain, etc.). Mainscape’s sole responsibility for any breach of its warranties shall be, at its discretion, to repair or replace any damage to the condition of the item to as near as practical as it existed immediately prior to the damage, or to issue a refund for the plant or work affected at the value of the plant or item based on its condition immediately prior to the damage. THE WARRANTY SET FORTH IN THIS SECTION 10 IS STRICTLY LIMITED TO ITS TERMS AND IS (TO THE FULLEST EXTENT PERMITTED BY LAW) IN LIEU OF ALL OTHER WARRANTIES, GUARANTEES, EXPRESSED OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, SPECIFICALLY EXCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11. Cancellation and True Up. THIS SECTION 11 APPLIES ONLY TO CONTRACTS THAT EXTEND OVER A CERTAIN PERIOD OF TIME (FOR EXAMPLE, ONE YEAR), AND WHICH ARE BILLED IN EQUAL AMOUNTS OVER THAT PERIOD OF TIME, REGARDLESS OF HOW MUCH WORK MAINSCAPE PEFORMS DURING THAT PERIOD OF TIME. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT MAINSCAPE IS PRICING ITS PRODUCTS AND SERVICES OVER THE COURSE OF AN ANNUAL TERM FROM THE EFFECTIVE DATE; MEANING, THAT MAINSCAPE MAY BE INCURRING EXPENSES EARLY ON IN A GIVEN ANNUAL TERM FOR WHICH MAINSCAPE IS NOT THEN MAKING CUSTOMER PAY, BUT WHICH CUSTOMER IS AGREEING TO PAY OVER THE BALANCE OF THE ANNUAL TERM THROUGH NORMALIZED MONTHLY PAYMENTS. AS SUCH, IN THE EVENT CUSTOMER TERMINATES THIS AGREEMENT BEFORE THE END OF AN ANNUAL TERM’S COMPLETION, CUSTOMER AGREES AND ACKNOWLEDGES THAT MAINSCAPE IS ENTITLTED TO A RECONCILIATION OF ITS BILL TO THE CUSTOMER TO REFLECT THE WORK AND EXPENSES PERFORMED AS OF THE TERMINATION DATE (A “RECONCILIATION”). MAINSCAPE SHALL PROVIDE AN INVOICE AND DATA SUPPORTING ITS RECONCILIATION TO CUSTOMER WITHIN FOURTEEN (14) BUSINESS DAYS FROM THE DATE OF MAINSCAPE’S LAST PROVISION OF PRODUCTS AND/OR SERVICES. CUSTOMER HAS FOURTEEN (14) DAYS AFTER RECEIPT OF SAID INVOICE AND DATA IN WHICH TO PROVIDE MAINSCAPE WITH ANY OBJECTIONS TO OR DISAGREEMENT(S) WITH SAID DATA AND/OR INVOICES. IF NO SUCH OBJECTIONS OR DISAGREEMENT(S) ARE PROVIDED TO MAINSCAPE WITHIN THAT FOURTEEN (14) DAY TIMEFRAME, THEN CUSTOMER FOREVER WAIVES AND RELINQUISHES ANY CLAIM THAT THE INVOICE WAS INACCURATE AND THE AMOUNT IS NOT THEN IMMEDIATELY DUE AND PAYABLE BY CUSTOMER. CUSTOMER COVENANTS AND AGREES THAT UNDER NO CIRCUMSTANCES CAN CUSTOMER COMPLAIN OR SEEK A PAYMENT REDUCTION FOR SERVICES AND/OR PRODUCTS THAT MAINSCAPE HAS PROVIDED TO CUSTOMER, FOR WHICH CUSTOMER HAS PAID MAINSCAPE, OR FOR WHICH CUSTOMER HAS NOT COMPLAINED TO MAINSCAPE ABOUT WITHIN FOURTEEN (14) DAYS OF MAINSCAPE’S COMPLETION OF SAID PRODUCT OR SERVICES FOR CUSTOMER NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, MAINSCAPE MAY TERMINATE THIS AGREMENT FOR CONVENIENCE BY GIVING CUSTOMER THIRTY (30) DAY’S ADVANCE NOTICE.
12. Expiration. THE AGREEMENT WILL AUTOMATICALLY RENEW FOR AN ADDITIONAL ANNUAL TERM, AT THE COSTS AND PRICES SET FORTH IN THE SCHEDULES ATTACHED HERETO, IF (A) MAINSCAPE DOES NOT NOTIFY CUSTOMER OF ITS INTENT TO END THE AGREEMENT ON ITS THEN-CURRENT TERMS BY THE LAST DAY OF THE THEN-APPLICABLE ANNUAL TERM, AND/OR (B) CUSTOMER DOES NOT NOTIFY MAINSCAPE OF ITS INTENT TO TERMINATE THE AGREEMENT AT LEAST SIXTY (60) DAYS PRIOR TO THE EXPIRATION OF THE THEN-APPLICABLE ANNUAL TERM. IF CUSTOMER PROVIDES MAINSCAPE WRITTEN NOTIFICATION OF ITS INTENT TO TERMINATE AT LEAST SIXTY (60) DAYS PRIOR TO THE EXPIRATION OF THE THEN-CURRENT ANNUAL TERM, THEN AT THAT TIME MAINSCAPE IS ENTITLED TO REQUIRE THAT CUSTOMER IMMEDIATELY PAY ALL OF THE REMAINING SET MONTHLY COSTS THAT ARE DUE TO MAINSCAPE FOR THE PERIOD BETWEEN THE NOTICE OF TERMINATION FROM CUSTOMER, THROUGH THE END OF THE APPLICABLE ANNUAL TERM. MAINSCAPE IS ALSO ENTITLED TO ANY ADDITIONAL CHARGES THAT ARE DUE AND OWING TO IT DURING THE PERIOD BETWEEN NOTICE OF TERMINATION AND EXPIRATION PURSUANT TO THE TERMS OF THE AGREEMENT, AND CUSTOMER IS NOT RELIEVED FROM ANY SUCH OBLIGATIONS.
13. Services and Products. Mainscape shall provide to Customer the Services and/or Products described in one or more Ordering Documents to this Agreement, pursuant to the terms and conditions of this Agreement and the applicable Schedules. “Ordering Documents” refers to any scope of work documents attached to this Agreement as a Schedule/Exhibit and/or any Schedules or Exhibits attached hereto.
14. Modification. Except as otherwise expressly set forth herein, this Agreement may not be modified or amended unless mutually agreed to in writing and signed by the parties hereto. Any modifications to the terms of this Agreement in an Ordering Document or Schedule must expressly state that it is intended to modify and amend the terms of this Agreement, and shall only apply with respect to the transactions governed by such documents.
15. Order of Precedence. The Agreement shall be reasonably interpreted to avoid any conflict between its provisions. Moreover, the provisions presented in the Agreement’s Standard Terms and Conditions, Exhibits, Schedules, and any change orders shall be reasonably interpreted to supplement each other. Notwithstanding, in the instance that a conflict of interpretation exists, the following order of precedence shall apply: (a) these Standard Terms and Conditions (as may be modified pursuant to the terms herein); (b) Exhibits; (c) Schedules; (d) invoices; (e) change orders; and (e) any other documentation.
16. Entire Agreement. This Agreement, including the Ordering Documents, and all materials attached hereto or referenced herein, constitutes the entire agreement of Mainscape and Customer with respect to the subject matter of this Agreement and any written or oral agreement or communication between Mainscape and Customer with respect to the subject matter are hereby superseded and shall hereafter have no force or effect.
17. Waiver. Any waiver by either party of any provision of this Agreement shall not imply a subsequent waiver of that or any other provision, and any failure to enforce strict performance of any provision of this Agreement shall not be construed as a waiver or relinquishment to enforce strict performance in respect to such provision on any future occasion.
18. Headings. All section headings in this Agreement are for convenience or reference only and are not intended to define or limit the scope of any provision of this Agreement.
19. Construction. Notwithstanding the general rules of construction, both Mainscape and Contractor acknowledge that both parties were given an equal opportunity to negotiate the terms and conditions contained in this Agreement, and agree that the identity of the drafter of this Agreement shall not be considered in any interpretation of the terms and conditions of this Agreement.
20. Reasonableness and Severability. The parties stipulate and agree that each and every paragraph, sentence, term and provision of this Agreement shall be considered independent, reasonable and severable. If a court of competent jurisdiction makes a final determination that any provision is unreasonable, invalid or unenforceable, the remaining provisions shall be unimpaired.
21. Governing Law; Jurisdiction. This Agreement and any claim or dispute arising out of or under this Agreement shall be governed by and construed in accordance with the laws of the State of Indiana without regard to principles of conflict of laws or choice of laws. The Parties further agree that the sole proper venue for the determination of any litigation commenced by Mainscape against Customer or by Customer against Mainscape on any basis (including but not limited to any claim or cause of action relating to or arising out of or under this Agreement) shall be in a court which is located in Indiana, in either U.S. District Court for the Southern District of Indiana or the Hamilton County, Indiana Commercial Court, at Mainscape’s choice. The parties expressly declare that any other venue shall be improper and that each party expressly waives any right to a determination of any such litigation by a court in any other venue. The parties therefore submit to the exclusive jurisdiction and venue of those state and federal courts located in Indiana for any action arising out of, connected with, related to or incidental to the relationship between the parties in connection with this Agreement. Each party expressly waives any objection to jurisdiction or venue in such courts.
22. Attorneys’ Fees. In the event of any dispute between the Parties (whether or not litigation is commenced) or any nonpayment by Customer, in the event Mainscape prevails in said dispute(s), then it shall be entitled to recover from Customer all legal and attorney fees, out-of-pocket expenses, and court costs incurred in connection with such dispute, litigation or nonpayment.
23. Waiver of Jury Trial. MAINSCAPE AND CUSTOMER ACKNOWLEDGE AND AGREE THAT THERE MAY BE A CONSTITUTIONAL RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY CLAIM, DISPUTE OR LAWSUIT ARISING BETWEEN OR AMONG THEM, BUT THAT SUCH RIGHT MAY BE WAIVED. ACCORDINGLY, THE PARTIES AGREE THAT NOTWITHSTANDING SUCH CONSTITUTIONAL RIGHT, IN THIS COMMERCIAL MATTER THE PARTIES BELIEVE AND AGREE THAT IT SHALL BE IN THEIR BEST INTEREST TO WAIVE SUCH RIGHT AND, ACCORDINGLY, HEREBY WAIVE SUCH RIGHT TO A JURY TRIAL AND FURTHER AGREE THAT THE BEST FORUM FOR HEARING ANY CLAIM, DISPUTE, OR LAWSUIT, IF ANY, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE RELATIONSHIP BETWEEN MAINSCAPE AND CUSTOMER SHALL BE A COURT OF COMPETENT JURISDICTION SITTING WITHOUT A JURY.