This agreement (hereafter referred to as the “Agreement”) is entered into by and between CanopyNC Ventures LLC d/b/a Edison Landscaping, hereafter referred to as “Company”, and you (hereinafter referred to as the “Customer”) [the Company and the Customer being hereinafter sometimes collectively referred to as the “Parties”]_for your property (hereafter referred to as “Property”).
The parties wish to enter into this Agreement to define the terms and conditions under which Company shall provide landscape management services to the Customer. The Parties hereby agree as follows:
1. SERVICES AND SCOPE OF WORK:
Company shall perform the specified landscape management services as described in Sections 15-19 of this Agreement (hereinafter referred to as the “Work”). Company shall furnish all labor, equipment, and materials to perform the Work unless specifically excluded herein. Trained and uniformed personnel using current, acceptable horticultural and agronomic practices shall perform all of the Work. Other landscape services other than the Work shall be estimated and approved by the Customer prior to the initiation of same (hereinafter referred to as the “Additional Work”). Additional Work that is estimated at $1,000 or greater shall require a 50% deposit of the approved estimate upon approval of the Additional Work and the remaining 50% upon completion.
2. START DATE:
This Agreement shall commence on date accepted (hereinafter referred to as the “Commencement Date”) and shall end one year from said Commencement Date (hereinafter referred to as the “Termination Date”) unless either party terminates this Agreement in accordance with Section 11 hereof. After one year, this Agreement will automatically renew unless the Customer or Company chooses to terminate this Agreement by giving notice of such termination at least 30 days prior to the Termination Date. The Company will not begin providing services until Customer payment information is on file and the first invoice is paid.
3. WORKMANSHIP:
All of the Work, including Additional Work if applicable, shall be performed in a manner that maintains the original intent of the landscape design. Company shall repair any damage caused by negligence of Company’s employees to structures, posts, signs, windows, etc. without charge to the Customer. Any damage should be reported to Company within 24 hours of incident or the Company’s repair obligation will be waived. When posts or other structures lack edging, mulch beds, or similar buffers, the Company uses reasonable efforts to avoid damage by mowers or string trimmers, but will not be liable for any incidental damage caused thereby. If Customer requests that any aspect of the Work, including Additional Work if applicable, be performed in a manner that does not conform to current, acceptable horticultural and agronomic practices, the Company may, in its discretion, agree to comply with such request; however, the Company will not be liable for any loss or damage caused by the departure from such standards.
4. ADVERSE CONDITIONS:
Company shall not be required to work during adverse conditions, including snow, ice, windstorms, thunder / lightning storms, and rainstorms, or when prevailing conditions would harm the property or for any other reason as solely determined by the Company. No compensation will be given to Customer should conditions cause Company to postpone work.
5. INSURANCE REQUIREMENTS:
Company agrees to maintain a minimum of $2,000,000 aggregate, $1,000,000 per occurrence General Liability Insurance. Additionally, Company will carry $500,000 per occurrence Workers’ Compensation
6. PAYMENT:
Payments for services outlined herein are to be: annual subscription amount to be divided into 12 equal monthly payments.
The Parties agree that, upon renewal, the annual cost could increase based on the Company’s pricing review and, furthermore, the Company may modify pricing at times other than renewal when necessary to reflect changes in the cost of providing the services due to inflation or other market conditions, including as a result of increases in the cost of labor, materials, or fuel. The Company will give the Customer advance notice of any modification to pricing. Further, a fuel surcharge may be added to the Customer’s monthly payment if fuel prices rise above historical averages and, if the Work performed for you includes overseeding, an additional charge may apply based on market pricing for seed.
Invoices for the Work will be issued on the first of the month. Invoices for Additional Work will be issued upon completion. Payment is required immediately upon invoice. If payment is not received within 15 days of invoice issue date, Company will discontinue services until all outstanding invoices are settled. Customer payment information will be kept on file with Company, through its Payment Card Industry (PCI) compliant merchant processor, for payment to be automatically drafted each month from either a credit card or bank account through an electronic funds transfer (EFT), also called automated clearing house (ACH). Each payment shall be made to Edison Landscaping at 412 Woodburn Road, Suite 02, Raleigh, North Carolina 27605. Payments are non-refundable and shall be made without deduction, offset, or withholding of any kind or for any reason.
A late charge of $50 may be assessed on past due payments. Further, past due amounts will bear interest at a rate equal to the lesser of the maximum allowable under North Carolina law and 1.5% per month. Customer is responsible for, and agrees to pay, the Company’s reasonable costs and expenses of collection of past due amounts, including, but not limited to, attorneys’ fees and expenses and the cost of court and/or mediation.
7. COMPLIANCE WITH LAW:
The Company will comply with all applicable laws, ordinances, rules, regulations, and orders of public authorities for the safety of persons and property. Company agrees to accept responsibility for complying with all OSHA requirements, to keep informed of and act to comply with all OSHA requirements that apply. All chemical applications shall be performed utilizing EPA and NC registered materials under the supervision of a North Carolina licensed pesticide applicator in accordance with product labeling and current county, state and federal guidelines. Company agrees to provide material safety and data sheets on any products and chemicals used on the property. A copy of these items shall be furnished to Customer upon request.
8. JOINT RESPONSIBILITIES:
Landscape quality will vary from year to year due to variations in weather and micro-climates. The most successful landscape maintenance programs are dependent upon active cooperation between the Customer and Company. Customer’s daily monitoring between Company’s weekly visits will help ensure optimal long-term results. The better the Customer understands their unique landscape micro-climate (plants, soil conditions, irrigation system, light patterns, etc.), the better communication and results can be achieved cooperatively between the Customer and Company. The Customer will provide Company, its employees, agents, and subcontractors reasonable access to the Property for the purpose of performing the Work, or Additional Work if applicable. It is Customer’s responsibility to unlock gates in advance of the performance of services, maintain gates in good working order, and shut and secure gates after the performance of the Work, including Additional Work if applicable. The Company is not liable for ordinary wear and tear to gates, nor is it liable for any loss or damage caused by a failure to shut or secure a gate. The Customer agrees to keep the Property clear of all known and potential hazards. The Customer further agrees to keep all pets out of the Work area while the Company is at the Property.
9. CUSTOMER’S DUTY TO INSPECT WORK:
The Customer is to inspect the Work, including Additional Work if applicable, performed within seven (7) days of services performed. If the Customer has a reasonable dissatisfaction with the work, the Customer shall notify Company of deficiencies in writing within seven (7) days of completion. Upon such notification, Company shall have fourteen (14) days to rectify the deficiencies. If Company corrects the deficiencies in accordance with this schedule, it shall not forfeit any amounts due under this Agreement. If Company does not receive written notice within seven (7) days from when the service was performed, the Customer shall have waived the Company’s obligation to correct the deficiency and any claims to recover past payments and/or rights to withhold present or future payments due under this Agreement.
10. NON SOLICITATION OF EMPLOYEES:
Unless Company has agreed expressly in writing, the Customer agrees not to solicit or hire for wages any employee, design professionals, or subcontractors of Company directly or indirectly for employment, consulting, Additional Work, “side jobs” or services provided by Company on the services, projects or change orders to the projects described in this document for a period of one year after final conclusion of said Work or Additional Work. Likewise, Company’s employees have signed a similar non-compete agreement with the Company.
11. TERMINATION:
It is agreed that either of the Parties may terminate this Agreement by giving thirty (30) day written notice to the other party for any reason or for no reason. The Customer acknowledges that the equal monthly payment in no way represents the value of the Work performed in any given month. In the event of termination, Customer agrees to pay Company through the billing period following the month in which the cancellation request is received.
Upon termination of this Agreement, Customer shall immediately pay the FINAL BILL submitted as provided in this paragraph. If the FINAL BILL is not paid and/or Company takes action to collect any payments due under this Agreement, Company shall be entitled to collect from the Customer the costs of such action, including reasonable attorney’s fees and the cost of court and/or mediation, in addition to any amounts owed by the Customer.
Notwithstanding the foregoing, if the Customer cancels this Agreement within the first 90 days following the Commencement Date, the Customer shall refund payment to the Company for any incentives or discounts received by the Customer. In addition, the Customer shall pay a prorated termination fee calculated by dividing the monthly charge by 90 days and multiplying that quotient by the then remaining days in the initial 90 day period of this Agreement commencing as of the Effective Date plus $225 (hereinafter referred to as the “Termination Fee”).
12. DISPUTE RESOLUTION:
In the event of a dispute arising out of this Agreement that cannot be resolved by mutual agreement, the Parties agree to engage in mediation before initiating legal action (for the avoidance of doubt, the Company may, without engaging in mediation, initiate legal action in court for collection of amounts past due pursuant to Section 6 or 11 above, which action will not constitute a waiver of these dispute resolution provisions, including with respect to the filing of a counterclaim in any action brought by the Company). If the matter cannot be resolved through mediation, and legal action ensues, the successful party will be entitled to recover its legal fees in addition to any other amounts the prevailing party might be awarded.
13. SEVERABILITY:
If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. In the event any court of competent jurisdiction finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then in such event such provision shall be deemed to be written, construed, and enforced as so limited.
14. WAIVER:
The failure of either of the Parties to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
15. MAINTENANCE:
a) SERVICE VISITS: Regular service visits are based on a weekly schedule Mid-March through December (barring weather or other conditions that prevent service), while bed maintenance and property clean up is performed December through Mid-March. Mowing will be provided on a regular schedule commensurate with the turf type of the property throughout the growing season. No service visits will occur during the week of Thanksgiving or the last week of the year.
b) MAINTAINABLE STATE: If the Property is not in a maintainable state free from overgrown turf, excessive weeds, leaves, or debris or requiring extensive clean up upon services commencing (herein after referred to as “Non-Maintainable State”), this Non-Maintainable State will exceed the scope of regular maintenance. If the Property is in a Non-Maintainable State prior to the initial service, the initial service will be canceled and the Company will provide the Customer with a quote to address the issues and bring the Property into a maintainable state. Once the Customer approves the quote the Company will perform the necessary work within one week.
c) MOWING: The Company will give notice to the Customer at least 24 hours in advance of the Company arriving to perform the Work. Prior to Company mowing, dog droppings in the mowing area must be removed by the Customer. Depending on applicable best practices, the turf area will typically be mowed weekly during the growing season and as necessary during the balance of the year with alternating mowing patterns, with cool season grass cut to a height of not less than 3-4 inches and warm season grass cut to a height of not more than 3 inches (although turf areas that are not sufficiently level will have places where grass is cut lower or higher than recommended). Clippings will only be removed when excessive and by prior specific agreement with Customer. The Parties acknowledge grass recycling (leaving of clippings) returns nutrients to the soil for healthy turf growth without additional fertilizer requirements.
d) TRIMMING: Company will string trim around all immovable objects including trees, shrubs, catch basins and signposts as necessary where mowers are not accessible. Company is not responsible for damage to items left on turf areas on the day of service including but not limited to hoses, grills, toys, yard art, solar lights, etc.
e) EDGING: Street edges and sidewalks will be edged with a blade edger every other time the turf is mowed or more frequently if needed as solely determined by Company.
f) BED MAINTENANCE: Mulched or pine straw beds will be kept so as to maintain a neat appearance at all times, including the removal of weeds and invasive plants as well as debris and dead leaves. All plant beds mulched by the Company and natural areas, sidewalks, streets, pavement joints, etc. shall be weeded to maintain a neat appearance. In order for Company to maintain beds as weed free, the Customer is responsible for maintaining at least a two (2) inch layer of mulch on all areas to be maintained. If the Customer chooses not to have mulch applied to areas which results in less than two (2) inches of mulch present, the Company shall not be held responsible to maintain the beds as weed free under this Agreement until an adequate establishment of mulch exists. Weed control will be accomplished via pre-emergent (soil applied) chemicals, post emergent (foliar applied) chemicals and hand weeding.
g) LEAF MANAGEMENT: During the fall season, leaves will be removed from all lawn areas weekly and staged in natural areas to be removed and/or mulched later once piles accumulate. Leaves will be primarily relocated to natural areas on site if these areas are suitable to handle leaf accumulation. Leaves will be removed out of natural areas that have mulch or pine straw as ground cover. If requested by Customer, Company shall perform supplemental leaf removal for an additional cost as Additional Work.
h) GENERAL CLEAN UP: Street edge and walks will have small limbs, grass clippings, leaves, and other loose material created from landscape activities blown off each time the lawn is mowed. These areas will also be blown off as necessary during the growing and non-growing season. Unless specifically noted otherwise, streets, parking lots and breezeways are excluded. Major damage clean up due to high winds, ice, snow, flood, hurricane or other unpredictable events are not included as part of the Work but shall instead be performed as Additional Work at an additional cost upon written approval by the Customer.
16. TURF CARE. If Customer orders turf care as part of the Work, the Company will also perform the following services:
a) WEED CONTROL & FERTILIZATION: The Customer will receive 7 applications that are crucial to the turf’s health. These applications will occur in 7-8 week intervals and will provide essential nutrients for the specific turf type present at the Property. During these visits, the Company will apply post emergent herbicides when needed. We will also scout the Property and apply weed control when and where necessary.
b) AERATION & OVERSEEDING: Company will aerate all fescue turf areas with sod quality turf type tall fescue seed annually from mid-September until late October according to prevailing conditions. Seed will be applied at a rate of 4lbs. per 1,000 square feet. Warm season grass like Bermuda and Zoysia will be aerated (not seeded) during the summer months. An additional charge may apply based on market pricing for seed.
17. PRUNING: If Customer orders pruning as part of the Work, then pruning will occur on a year-round schedule based on horticultural best practices. The Company will regularly inspect all plant material and prune each plant as needed with the appropriate pruning methodology given the season. Some months will require more intensive pruning and others will be inspection only. The Company will seek to maintain plants at the correct height, form and shape according to accepted horticulture standards and as to maintain appearance, vehicular, pedestrian and building clearance and safety. Debris and clippings will be removed.
18. HORTICULTURAL CARE: If Customer orders horticultural care as part of the Work, then trees and shrubs will be fertilized twice a year with a granular fertilizer, once in the spring and once in the fall.
19. IRRIGATION MAINTENANCE: If Customer orders irrigation maintenance as part of the Work, services will include system startup in the spring, an inspection in late summer, and shutdown and winterization in the fall. In addition, the Company will flag irrigation heads in advance of aeration and overseeding. If any problems arise with the irrigation system, the Company will perform service calls at its then-current rates.
20. DISCLAIMER; LIABILITY LIMITATIONS: EXCEPT AS PROVIDED IN THIS AGREEMENT OR IN AN ORDER ACCEPTED BY THE COMPANY, THE WORK, INCLUDING ADDITIONAL WORK IF APPLICABLE, IS PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR TITLE. THE COMPANY DOES NOT GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING OUR SERVICES OR FROM THE WORK OR ADDITIONAL WORK. The Company is not responsible for the condition of the landscape of the Customer’s property due to drought, freezing conditions, irrigation deficiencies, storm damage, or other acts of God. The Customer agrees the Company is not liable to the Customer or any third party for any damage of any kind whatsoever not caused by negligence of the Company or its employees. The Customer agrees the Company is not liable to the Customer or any third party for any special, indirect, remote, lost profits, incidental, exemplary, consequential, or punitive damages arising from the Agreement or related to the Work or Additional Work even if the Company was advised in advance of the possibility of such damages.
21. BINDING EFFECT, ENTIRE AGREEMENT AND GOVERNING LAW:
The Parties each represent that they have the authority to enter into this contract. This Agreement shall be binding on the Parties and their respective heirs, successors and assigns, evidences the entire Agreement between the Parties and shall be governed by and construed in accordance with the laws of the State of North Carolina. The Customer agrees the Company may subcontract or delegate to any entity or individual all or any portion of the Work or Additional Work.
22. SMS AND TEXT MESSAGING TERMS AND CONDITIONS:
The Customer agrees to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. By being our customer, you agree to receive autodialed or prerecorded marketing or service related mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from us.
If you do not wish to receive text-based communications, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out.
You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
23. CHANGES. The terms and conditions in this Agreement are subject to occasional revision, and if we make any material changes, we may notify you by sending you an email or text to you. Any changes to these terms and conditions will be effective 60 days following such notice to you. Continued use of our services following such notice shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.