This Master Services Agreement (the “Agreement”) between Bennett Alexander Group LLC d.b.a. Terra Landscaping & Hardscaping (“Terra”) and the client who has requested services (“Client”) is made effective as of the date indicated on any Lawn Maintenance Proposal (“Order Form”) submitted by Terra and accepted by Client.
This Agreement states the terms and conditions by which Terra will deliver and Client will receive any or all landscaping and/or hardscpaing services provided by Terra. Each Order Form submitted by Terra and accepted by Client is hereby incorporated by reference herein. This Agreement is intended to cover any and all Services ordered by Client and provided by Terra. Capitalized terms shall have the meanings assigned to them herein or as defined in Section 11.
2. Delivery of Services; Terms.
2.1 Delivery of Services.
By submitting an Order Forms(s), Client agrees to take and pay for (i) the Service(s) during the Initial Term and for any Renewal Term, and (ii) certain limited services needed by Client on a “one-off” basis (“Supplemental Services”) where such services are not included within the scope of the Services as described in the Order Forms(s). Client agrees to pay Terra the fees as outlined on any Order Form for Supplemental Services, and hereby authorizes Terra to perform such services on its behalf. ALL SUPPLEMENTAL SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND EXCLUDE WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED in accordance with Terra’s current policies and prices.
(a) Term Commencement. If applicable on any Order Form, the term for each Service will commence on the Service Commencement Date.
(b) Renewal Term(s). Unless otherwise stated on an applicable Order Form, upon expiration of the Initial Term, the term shall be extended automatically on a month-to-month period (“Renewal Term”), unless and until either party gives the other no less than thirty (30) days’ written notice of a termination. The termination of any Service will not affect Client’s obligations to pay for other Service(s).
3. Fees and Payment Terms.
3.1 Fees and Expenses.
Client will pay all fees due according to the prices and terms listed in the Order Form(s) in accordance with then current Terra prices and policies.
3.2 Payment Terms.
Except as expressly set forth in this Agreement or on an applicable Order Form, all fees due and payments received hereunder are non-refundable and shall not be contingent on any additional services or products to be provided by Terra. Except as may be expressly set forth in Section 5 herein or an applicable Order Form, Client may not withhold payment due as a result of Client’s perceived, actual or mistaken expectations of the scope, timeliness, or business success of the Services delivered.
3.3 Late payments.
Any payment not received within thirty (30) days of the invoice date of the Initial Bill and thirty (30) days of the invoice date of a Recurring Bill (respectively, a “Payment Default”) will be subject to interest of 1.5% per month. Client also shall pay to Terra all expenses incurred by Terra in exercising any of its rights under this Agreement or applicable law with respect to a Payment Default or other breach by Client, including, but not limited to, reasonable attorneys’ fees and the fees of any collection agency retained by Terra.
Client will be responsible for and will pay in full, except for taxes on Terra net income, all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services.
4. Intellectual Property Ownership.
This Agreement does not transfer from Terra to Client any of Terra’s know-how, trade secrets, technology, or other of Terra’s intellectual property, and all right, title and interest in and to Terra’s know-how, trade secrets, technology, or other of Terra’s intellectual property will remain solely with Terra.
5. Limited Warranties.
Each of the guarantees in the Order Form(s) is null and void if Client fails to follow Terra’s Rules and Regulations and other policies or otherwise breaches the Agreement in any respect.
5.2 No Other Warranty.
THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CLIENT’S USE OF THE SERVICES IS AT ITS OWN RISK. EXCEPT AS PROVIDED IN THE ORDER FORM, TERRA DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. TERRA DOES NOT WARRANT THAT THE SERVICES WILL BE PERFOMED IN A PARTICULAR MANNER OR WITHIN A SPECIFIC TIMEFRAME.
6. Client Obligations.
6.1 Warranties of Client.
(a) General. Client represents and warrants that
– Client is at least eighteen (18) years of age;
– Client possesses the legal right and ability to enter into this Agreement, and the performance of its obligations and use of the Services (by Client, its customers and users) will not violate any applicable laws, regulations or the Rules and Regulations or cause a breach of any agreements with any third parties or unreasonably interfere with other Terra clients’ use of Terra services.
(b) Breach of Warranties. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Terra will have the right, in its sole discretion, to suspend or terminate immediately any Services.
6.2 Compliance with Law.
Client agrees that it will use the Service(s) only for lawful purposes and in accordance with this Agreement.
7. Limitations of Liability.
7.1 Delays and Interruptions.
TERRA SHALL NOT BE LIABLE FOR ANY LOSS WHATSOEVER FROM DELAYS OR SERVICE INTERRUPTIONS. EXCEPT TO THE EXTENT OF TERRA’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TERRA SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND PERTAINING TO THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF TERRA’S OWN NEGLIGENCE.
7.2 Consequential Damages.
EXCEPT FOR THE PARTIES’ INDEMNITY OBLIGATIONS IN SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE.
7.3 Maximum Liability.
Notwithstanding anything else to the contrary contained in this Agreement, Terra’s maximum aggregate liability to Client for any claim related to, or in connection with, this Agreement, whether in contract, tort or otherwise, shall be limited to the total amount of fees actually paid by Client to Terra for the Services on the applicable Order Form.
Each party agrees to indemnify and hold the other harmless against any losses, costs, expenses (including, but not limited to, reasonable attorneys’ fees), claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Losses”) of every kind pertaining to the Services, any false information delivered by the Client pertaining to the Property, or failure to deliver relevant information by the Client. Client further agrees to indemnify Terra and its affiliates against any Losses which arise out of, or related to any Property of the Client or the customers/clients of Client, and Client will reimburse Terra and its affiliates for all legal expenses, including reasonable attorneys’ fees, incurred by Terra and its affiliates in connection with any such Losses.
9.1 Termination Without Cause During Renewal Term.
This Agreement may be terminated by either party at any time during any Renewal Term for any or no reason upon either party giving to the other no less than thirty (30) days’ prior written notice of termination. No matter which party terminates the Agreement pursuant to this Section 9.1, any and all payment obligations of Client under this Agreement for Service(s) provided through the date of termination will immediately become due, and Client shall be required to prepay for any portion of the Services that have not been paid for and are to be rendered during such thirty (30) day period.
9.2 Termination For Cause.
In addition to any other rights it may have under this Agreement or applicable law, Terra may immediately terminate this Agreement or suspend service, effective without notice, in the event of a Payment Default, or Client’s breach or failure to comply with any other obligation of Client under this Agreement including, but not limited to, its failure to comply with any of the policies of Terra.
Client may terminate this Agreement if Terra breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice of same. If this Agreement is terminated by Client under this Section 9.2, all remaining monthly recurring and other charges specified on the applicable Order Form(s) for the balance of the then current term shall immediately become due and payable.
9.3 No Liability for Termination.
Neither party will be liable to the other for any termination or expiration of any Service or this Agreement in accordance with its terms.
The following provisions will survive any expiration or termination of the Agreement: Sections 3, 4, 5, 7, 8, 9, and 10.
10. Use of Client’s Name for Marketing and Promotion.
Client agrees that during the term of this Agreement Terra may publicly refer to Client, orally and in writing, as a Client of Terra in resumes, client lists and in other promotional materials and communications, including, but not limited to, press releases, brochures, reports, letters and electronic media such as e-mail or Web pages.
11. Miscellaneous Provisions.
Terra shall not be deemed to be in default of any provision of this Agreement or be liable for any delay, failure of performance or interruption of the provision of Services to Client resulting, directly or indirectly, from any unforeseen or force majeure event. Terra and Client agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or the customers of Client. THIS AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA (EXCEPT THAT BODY OF LAW CONTROLLING CONFLICTS OF LAW). EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN PENNSYLVANIA, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTIONS AND WAIVES ALL OBJECTIONS THERETO. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. Client may not sell, assign or transfer its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Terra, and any attempted assignment or delegation without such consent will be void. Terra may assign this Agreement in whole or part. Terra also may delegate the performance of certain Services to third parties, including Terra’s wholly owned subsidiaries. All notices, demands, requests or other communications required or permitted under this Agreement shall be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail. Terra and Client are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Terra and Client. Neither Terra nor Client will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. Except as expressly provided in this Agreement, this Agreement may be changed only by a written document signed by authorized representatives of Terra and Client in accordance with this Section 11.
Authorized representatives of Client and Terra have read the foregoing and all documents incorporated therein and, by executing the Order Form(s), agree and accept such terms effective as of the date of receipt of the acceptance email from Client.