These Terms and Conditions shall be included and incorporated into any Grounds Management Service Agreement or Snow Management Service Agreement (the "Agreement") between Schill Grounds Management & Lawn Care Services, LLC dba: Schill Landscape Collective, and Schill Grounds Management, and Enviroscapes, and Strauser Nature's Helpers, and BAM Outdoor Inc, and TLC Landscaping Design + Pools, and Gelderman Landscaping, and Elevations Landscaping, and Atlas Outdoor, and Brogan Landscaping, and Andrew's Lawn & Landscaping, and Begonia Brothers, located at 2055 Crocker Road, Suite 204, Westlake, Ohio 44145 ("SCHILL"), and the undersigned ("Owner"). Hereinafter both SCHILL and Owner referred to as either a "Party" or the "Parties".
1. Term of Agreement. The term of these Terms and Conditions shall commence on the Effective Date and shall continue for a contract term immediately following the Effective Date will automatically renew each year unless sooner terminated as provided herein. Written notice of termination shall be addressed: Schill Landscape Collective, Attention: J. Schill, 2055 Crocker Road, Suite 204, Westlake, Ohio 44145 and is subject to terms specified below (see item 12).
2. Terms of Payment. The Parties hereby agree on the total annual cost for maintenance services. For the convenience of the Owner the total annual cost of the routine maintenance services accepted will be billed in accordance with the attached payment schedule. This billing may not reflect the true monthly costs of the services actually rendered by SCHILL. Optional services are invoiced separately in the month service is rendered and due upon completion.
2.1 All SCHILL invoices are due and payable thirty (30) days from the invoice date unless otherwise agreed upon.
2.2All invoices thirty (30) days past due will be subject to a service charge of one and one-half percent (1 1/2%) per month of the amount due. Services may be suspended until all outstanding balances are made current.
2.3 SCHILL will pass along credit card fees or other direct costs for processing payments other than those made by check or ACH direct bill.
2.4 SCHILL will charge Owner for all bank and administration fees associated with failed payments such as returned checks, failed or reversed ACH transactions.
2.5 Prices quoted and contracted for maintenance are for the first year of this contract. On the subsequent anniversary date of this contract through its termination, SCHILL reserves the right to increase the base pricing by a factor tied to the Consumer Price Index (CPI) as published by the U.S. Bureau of Labor Statistics, for the previous twelve (12)-month period.
3. Attorney's Fees. Owner agrees to pay to SCHILL all collection costs, including reasonable attorneys' fees and expenses, incurred by SCHILL in collecting any overdue balance. Failure of SCHILL at any time to exercise its rights here under shall not be construed as a waiver of such rights or as a bar to the later exercise thereof.
4. Assignability. These Terms and Conditions shall not be assignable by the Owner without the prior written consent of SCHILL. SCHILL reserves the right to subcontract or assign all or parts of our contracts.
5. Limitation of Liability. The Parties hereby agree and understand that SCHILL's liability shall be limited to actual costs incurred to correct or replace any defective or non-conforming service related to the Scope of Work in the Agreement. Furthermore, SCHILL will not be liable for loss or damage of plant material caused by persons not employed by SCHILL, or acts of nature.
6. Indemnification by the Parties. Each Party shall defend, indemnify and save the other Party, its respective successors, partners, subsidiaries and affiliates and their officers, directors, agents, employees, heirs, personal representatives or assigns (the "Indemnities") harmless from and against any actions, claims, losses, damages, demands liabilities or expenses (including, without limitation, all court costs and reasonable attorneys' fees on account thereof) arising from or related to the work described herein, including, but not limited to, those claims directly or indirectly causes or contributed to in part by any act or omission of SCHILL, its agents, employees, subcontractors, material men, or anyone acting under its direction or control or on its behalf in connection with or incidental to the performance of the work described herein, provided, however, that the foregoing shall not apply to the extent of claims caused by the gross negligence or willful act of the Party indemnified.
7. Partial Invalidity. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will continue in full force without being impaired or invalidated in any way.
8. Entire Agreement. These Terms and Conditions shall be incorporated in any Grounds Management Service Agreement or Snow Management Service Agreement and shall include any addendums. These Terms and Conditions supersedes any and all agreements, both oral and written, between the Parties with respect to the rendering of services by SCHILL for Owner and contains all covenants and agreements between Parties with respect to the rendering of these services in any manner whatsoever. Each Party acknowledges that no representations, inducements, promises, agreements, or undertakings, written or oral, have been made by either Party nor relied on by either Party, or by anyone acting on behalf of either Party, that are not embodied in these Terms and Conditions. Any modification of these Terms and Conditions will be effective upon such modification by SCHILL and reasonable notice of the modification to Owner.
9. Material, Supply and Fuel Surcharges. Schill may be forced to pass along a surcharge based on material, fuel or disposal price increases to Schill in the event of extraordinary inflationary impacts beyond Schill’s control not adequately factored into quoted service costs. Such surcharges will be communicated separately should they become necessary.
10. Schedule changes: SCHILL service schedules are set in advance to optimize staff utilization, safety, efficiency, and other considerations. SCHILL cannot guarantee changes to schedules will be possible – especially those given without sufficient notice. Please forward all requests for schedule changes to your account manager in advance for consideration and rerouting assessment.
11. Scope of Work. SCHILL will furnish all labor, equipment, material, licensing, and insurance necessary to complete scoped work as specified by the Agreement. Any changes to the scope in the Agreement will be amended in writing to reflect changes in scope and any necessary price adjustments, provided that SCHILL may alter the schedule of service based on weather at its reasonable discretion so long as SCHILL is able to deliver the services within the scope of work. SCHILL reserves the right to increase its costs in accordance with the increased scope of work or the increased cost of materials or labor at the discretion of SCHILL upon reasonable written notice to Owner.
11.1 SCHILL is not responsible for any concealed lines that are cut while performing contracted services (i.e. phone, cable, irrigation, post lights, invisible fencing, etc.) or any rock damage to buildings, vehicles, or other areas of the client property where rock is used as a mulching product.
11.2 SCHILL will not be responsible for any loss, damage, or delay caused by weather conditions, strikes, lack of adequate time, insufficient notice, and lack of fuel or oil availability or by any other causes beyond our control.
12. Termination. In the event either Party defaults on any of its material obligations, representations, or warranties under these Terms and Conditions, the non-defaulting Party shall notify the defaulting Party, in writing, specifying in sufficient detail the nature and extent of such default, with supporting documentation, and unless, within thirty (30) days after such written notice, the defaulting Party remedies the default, the non-defaulting Party may terminate these Terms and Conditions. These Terms and Conditions will immediately terminate if: a) either Party files for bankruptcy or is found Bankrupt; b) either Party becomes insolvent or makes an assignment for the benefit of its creditors; or c) if either Party discontinues business. Upon such termination the terms and obligations of these Terms and Conditions will terminate and become null and void except for the obligations to pay monies due and owing under these Terms and Conditions and Owner's indemnification obligations.
12.1 Termination Without Cause. Notwithstanding anything to the contrary contained in these Terms and Conditions, Owner may terminate these Terms and Conditions at any time, without cause, by giving SCHILL at least ninety (90) days written notice, provided that in the case that Owner elects to terminate these Terms and Conditions without cause as provided in the section, Owner shall pay all accrued costs regardless of invoicing plus an amount equal to 25% of the contract value (the ''Termination Fee"). Additionally, Owner will be responsible for all reasonable costs related to such termination without cause, including without limitation, equipment lease or rental payments, inventory and materials costs, shipping, transport, and storage costs and expenses, and all costs related to removal of SCHILL's equipment from the Property.
12.2 Actions Upon Termination. Upon termination, SCHILL shall: (a) prorate Owner's payments if applicable; (b) do all other things reasonably necessary to cause an orderly cessation, or at Owner's option, transition of the Services to Owner or another contractor designated by Owner, without detriment to the continued operation of the Property; and (c) turn over to Owner all reports, data, service manuals, records, and other materials respecting the Services.
13. Insurance. For the Term of these Terms and Conditions, SCHILL will carry a minimum of $1,000,000.00 in general and automotive liability insurance applicable to the specific services. Upon request, SCHILL will provide Owner a copy of all relevant insurance certificates and shall name the Owner as additional insured as reasonably requested by Owner.
15. Force Majeure. In the event the services under these Terms and Conditions cannot be completed due to market conditions, supply, transportation, accident, fire, strike, civil or military authority, insurrection, acts of God, or any other cause beyond SCHILL's control, including extreme weather, SCHILL is not to be held liable for any loss and or damages including, but not limited to, consequential and special damages. In the event such conditions persist for a prolonged period of time, SCHILL may terminate the portion of these Terms and Conditions so affected.
15. Miscellaneous.
15.1 These Terms and Conditions may only be modified by writing signed by both Parties.
15.2 Ohio law shall be used in interpreting these Terms and Conditions and in determining the rights of the Parties under it. Any legal action or proceeding related to these Terms and Conditions shall be brought in a court located in Lorain County, Ohio and the Parties hereby irrevocably consent to and submit themselves to the exclusive jurisdiction and venue of such courts.
15.3 These Terms and Conditions and any attachments hereto, constitues the entire agreement between the Parties and supersede any other prior agreements between the Parties.
15.4 Except where otherwise required by statute, all notices given which relate to the provisions of these Terms and Conditions shall be in writing, addressed to the Party to whom the notice is given, and sent by registered or certified mail to the last known mailing address of the Party.
15.5 SCHILL is not responsible for scratch marks or damage to asphalt or concrete, manhole cover, curbing, lawns and landscape beds due to plowing, ice melting or ice chipping services. In event of property damage due to neglect of SCHILL, its employees or independent sub-contractors, SCHILL will be limited to repairs or replacement of damages property.
