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Landscape Management Services & Conditions

These terms are subject to change by earth without prior written notice at any time, in its sole discretion. Any changes to these terms will be in effect as of the “last updated date” referenced on the earth website located at earthdevelopmentinc.com (the “site”). Customer should review these terms prior to purchasing any product or services that are available, and customer’s purchase of any product or services after the “last updated date” will constitute customer’s acceptance of and agreement to such changes.

These LandscapeManagement Services Terms and Conditions (“Terms”) are the only termsthat govern the sale and provision of Services (as defined below) by EarthDevelopment, LLC (“Earth”).  Theaccompanying quote, proposal, order acknowledgement or invoice (“Order”)and these Terms (together, the “Agreement”) comprise the entireagreement between Earth and the customer (“Customer”), and supersede allprior or contemporaneous communications, understandings or agreements (whetherverbal or written).  Earth and Customerare sometimes referred to in this Agreement individually as a “Party”and collectively as the “Parties.”

These Terms prevail over any of Customer’sgeneral terms or conditions of purchase regardless of whether or when Customersubmitted its order or alternate terms. Neither the failure of Earth to object to Customer’s terms andconditions nor the fulfillment of Customer’s order will (i) constituteacceptance of Customer’s terms and conditions or (ii) serve to modify or amendthese Terms.  If there is any conflict orinconsistency between these Terms and those set forth in the Order, then thespecific modification(s) noted in the Order will govern and control.

THESE TERMS ARE SUBJECT TOCHANGE BY EARTH WITHOUT PRIOR WRITTEN NOTICE AT ANY TIME, IN ITS SOLEDISCRETION. ANY CHANGES TO THESE TERMS WILL BE INEFFECT AS OF THE “LAST UPDATED DATE” REFERENCED ON THE EARTH WEBSITE LOCATED ATEARTHDEVELOPMENTINC.COM (THE “SITE”). CUSTOMER SHOULD REVIEWTHESE TERMS PRIOR TO PURCHASING ANY PRODUCT OR SERVICES THAT AREAVAILABLE, AND CUSTOMER’S PURCHASE OF ANY PRODUCT OR SERVICES AFTER THE “LASTUPDATED DATE” WILL CONSTITUTE CUSTOMER’S ACCEPTANCE OF AND AGREEMENT TO SUCHCHANGES.

1. Services

During the Term (asdefined below), Earth shall perform the landscape management services describedin the Order, which generally consist of lawn mowing, trimming, fertilizationand general clean-up, landscape plant bed management, trimming/shaping ofshrubs, spring/fall property clean-up and various related landscaping services(collectively, the “Services”) for Customer, at the location(s) identified inthe Order (the “Service Location(s)”). Unless expressly set forth in an Order, this Agreement excludes wateringand trash removal.  Customer may requestchanges to the Services at any time upon written request to Earth, providedthat the Parties shall enter into a written amendment to the Order documentingany adjustments to the Services and resulting changes to the Fees, ServiceLocation(s) and/or other terms prior to implementation of any suchchange(s).  Earth shall provide allnecessary and adequate personnel, materials, tools, equipment and vehiclesnecessary to perform the Services at the Service Location(s). Earth shall makethe final determination of when Services are necessary at any ServiceLocation.  Customer acknowledges thatServices may be delayed or unavailable in the event of extreme weather conditions.  Earth reserves the right to delay or stopwork during such extreme conditions so as not to create unsafe workingconditions for its employees and contractors.

2.  Fees and Payment

Subject to the termsand conditions of this Section 2, and as the sole consideration for theperformance of the Services under this Agreement, Customer shall pay Earth allproperly invoiced fees in accordance with and as set forth in the Order and/orin this Agreement (the “Fees”).  Customershall also be responsible to pay Earth an administrative fee of up to $250 foreach request for changes to the Services. Services will be taxed until Customer has a tax resale certificate onfile with Earth. Time and material fees shall be based on hours of service(rounded up to the nearest hour).  Earthmay, in its sole discretion, increase Fees by up to five percent (5%) at thebeginning of each contract year upon written notice to Customer (which noticemay be contained in the first invoice of the season).
(a)Invoicesand Payment. Earth will invoice a Customer on a monthly basis,and Customer will incur a ten percent (10%) administrative fee if it requiresbilling on any other schedule.  Unlessotherwise agreed by Earth in writing, Customeragrees to make full payment of all Fees within thirty (30) days of the date ofEarth’s invoice, in U.S. Dollars.  A DELINQUENCY CHARGE OF ONE AND ONE-HALFPERCENT (1-1/2%) PER MONTH OR EIGHTEEN PERCENT (18%) PER ANNUM OF ANYOUTSTANDING BALANCE NOT PAID WHEN DUE WILL BE ADDED UNTIL PAYMENT IS MADE INFULL; provided, however, that the delinquency charge shall not exceed themaximum interest rate allowable by applicable law. Earth’s receipt andacceptance of any payment less than the full amount due shall not waive anyrights of Earth. Earth may set off any amount due from Customer, whether or notunder this Agreement, against any amount due Customerhereunder.  All costs and expenses,including but not limited to collection fees and reasonable attorney’s fees forthe collection of any overdue amount due Earth, shall be paid by Customer.
(b) RecordRequests. Subject to theterms and conditions of this Section 2(b), Customer may request copies ofEarth’s records and documentation related to any Services (and resulting Fees)for a period of thirty (30) days following the date such Services and Fees areinvoiced to Customer.  Earth has noobligation to respond to or comply with any Customer requests for records ordocumentation that are received at any time following this thirty (30) dayrequest period. Customer will be charged a reasonable administrative fee at thetime it submits any records request, and Earth will have a reasonable period oftime (not less than seven (7) calendar days) to retrieve and deliver therequested documentation to Customer.

3. Term and Termination

(a) Term.  The initial term of this Agreement shall be a period of one (1) year commencing effective asof January 1st of the current calendar year and continuing through and until December 31st (the“Initial Term”).  If agreed uponby Customer in the Order, upon expiration of the Initial Term, the Agreementshall automatically renew for successive one (1) year terms unless Customerprovides written notice of nonrenewal at least sixty (60) days prior to the endof the then-current term (each, a “Renewal Term” and together with theInitial Term, the “Term”).  If the Term isrenewed for one or more Renewal Term, the terms and conditions of thisAgreementduring each Renewal Termshall be the same as the terms and conditions in effect immediately prior tosuch renewal, subject to any change in fees in accordance withSection 2. If Customer provides timely notice ofnonrenewal, then thisAgreementshall terminate on the expiration of thethen-current Term, unless sooner terminated as provided in thisSection 3.

(b) Service Period.  Notwithstanding the foregoing,Customer acknowledges and agrees that the service period(s) during which Earthis obligated to perform the Services (the “Service Period”) starts April1st and ends November 30th during each year of the Term.

(c) Termination.  IfCustomer defaults in any payment when due,fails to perform any of its other obligations under this Agreement, becomes thesubject of any bankruptcy or insolvency proceeding, or whenever, in Earth’sdiscretion, there is doubt as to Customer’s financial stability, Earth may, in its sole discretion and withoutprejudice as to its other lawful remedies, cancel or defer performance and/ordemand immediate payment of all of Customer’s outstanding invoices or accountbalances (plus any additional costs, expenses, lossesor damages, including without limitation, lost profits, incurred by it as aresult of such cancellation, delay, default or bankruptcy), condition futureperformance against payment of cash in advance and/or terminate any Order orthis Agreement.

(d) NoEarly Termination.  Customer may not cancel or defer its rightsor obligations under this Agreement or any Order unless expressly agreed inadvance in writing by Earth.  If Customercancels or terminates an Order prior to the expiration of the Term, Customerwill be responsible for an early termination fee in the amount equal to thegreater of (i) $500 or (ii) ten percent (10%) of the remaining value of theOrder through the end of the current Term (which amount will be determined byEarth based upon the documented service fees for similarly situated customersand/or locations) (the “Early Termination Fee”).  If Customer fails to pay any amounts as andwhen due, Earth may, upon seven (7) days written notice and without prejudiceas to its other legal rights or remedies, stop performing Services under any Order until all amounts dueto Earth are paid in full (as confirmed in writing by Earth).  If Services are stopped due to Customernon-payment for a period of more than thirty (30) days, this Agreement and allOrders will automatically terminate (and Customer shall be liable for theresulting Early Termination Fee(s)).  

The Partiesintend that the early termination fee constitutes compensation to Earth for theadministrative work, changes to Service schedules and cancellation of thirdparty contracts that will occur as a result of THE CANCELLATION AND/OR earlytermination OF ANY ORDER, and not a penalty. The Parties acknowledge and agree that the harm and damage to Earth’sbusiness operations caused by Customer’s early termination and breach of thisAgreement would be impossible or very difficult to accurately estimate, andthat the early termination fee is a reasonable estimate of the anticipated oractual harm and damage that might arise from a Customer breach, and that Customer’spayment of this early termination fee will be Customer’s sole liability andentire obligation to Earth in the event of Customer’s early termination of an Order.

4. Site Conditions

(a) Customershall clearly mark and identify boundaries of each Service Location, and shallprovide Earth a professional survey of the Service Location or cause theService Location to be staked if reasonably requested by Earth.  Customer agrees to provide Earth with writtennotice of all concealed conditions on the property (including utilityfacilities).  Customer shall notify Earthof, and provide copies upon request, of all environmental or geotechnicalstudies or similar information in Customer’s possession and control regardingthe Service Location(s).  Earth agrees tonotify any utility companies (or their representatives) if the Services are, inEarth’s reasonable judgment, likely to affect underground utility lines orfacilities, provided that Customer will be responsible for any costs or chargesincurred by Earth in connection with such notification and/or any resultingmodification to the Services.  Customershall provide Earth (and its subcontractors), utility companies and othersimilar third parties with access to the Service Location(s) at all reasonabletimes.  
(b) An express conditionto Earth’s performance of Services is that the Service Location(s) shall at alltimes be accessible to Earth’s equipment and materials.  Customer shall be solely responsible fortaking any and all measures necessary to provide Earth witha safe and suitable work environment, including, withoutlimitation, any safety precautions reasonably requested by Earthprior to the provision of the Services.  Customer acknowledges that a safe workenvironment is necessary for the performance of the Servicesand that Earth may, at Earth’s sole discretion, refuse toperform the Services in a workenvironment that it reasonably determines to be unsafe or unsuitable (includingwithout limitation, poor site drainage, disrepair of retaining walls, cement orasphalt in walkways or parking surfaces or other site improvements at theService Location).  Earth shall not beliable for any delay in the completion of or inability to complete the Services resulting from Customer’s failure to provide asuitable work environment or legally compliant site.
(c) Pricing in the Orderis based on industry standards for the type of services completed.  If a Service Location has not been maintainedby Customer to generally recognized industry standards, Earth reserves theright to refuse performance of the Services and may, in its sole discretion, re-quotethe Services based on the current condition of the Service Location.

5. Warranties

Earth represents andwarrants that it shall perform the Services: (i) in accordance with the termsand conditions of this Agreement, (ii) using personnel of required skill,experience and qualifications, (iii) in a timely, workmanlike and professionalmanner, (iv) in accordance with all applicable laws, ordinances, rules andregulations and the highest professional and generally acceptable industrystandards in the landscape management industry, and to the reasonablesatisfaction of Customer.

6. Limitation of Liability

(a)  Unlessdirectly caused by the sole negligence or willful misconduct of Earth, itsagents, subcontractors or representatives, Earth shall in no event be liable orresponsible to Customer for any damages, losses or liabilities arising from:(i) any natural causes or Force Majeure Event (as defined below); (ii) anyunseen, unknown or concealed conditions in, on or about the Service Location(s)or any condition at the Service Location(s) that are not caused by the Servicesperformed by Earth; (iii) the performance of Services beyond the boundaries ofthe Service Location(s) if the boundaries were not properly stake or marked byCustomer; (iv) use of products or performance of Services in conformance withany manufacturer directions, guidelines, warranty, standards or recommendationsor otherwise in conformance with industry standards; or (v) Customer’s failureto fulfill any of its own obligations or responsibilities under theAgreement.   If Earth incurs any cost orexpense attributable to any of the foregoing events, conditions orcircumstances, such costs and expenses will be deemed “Additional Work” andbilled to Customer at Earth’s then-applicable hour rate(s).
(b)  Customershall indemnify and hold Earth harmless from any losses, damages, liabilities,deficiencies, claims, actions, judgments, settlements, interest penalties,fines, fees, costs or expenses of any whatever kind (including reasonableattorneys’ fees, fees and the costs of enforcing any right to indemnificationunder this Agreement, and the cost of pursuing any insurance providers)incurred by Earth relating to, arising out of or resulting from: (i) anylimitations or restrictions Customer has imposed upon the performance of theServices, or rejection of Services recommended to Customer (whether in theOrder or other written communication); or (ii) the site conditions at theService Location(s) (excluding those caused by Earth).  
(c) IN NO EVENT SHALL EARTH BE LIABLE TO CUSTOMER OR ANYONE CLAIMINGBY, THROUGH OR UNDER CUSTOMER FOR ANY INDIRECT,CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY NATURE, WHETHERARISING IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE),OR STRICT LIABILITY, INCLUDING, WITHOUT LIMITATION, DELAY, LOST REVENUE, LOSTPROFITS OR LOSS OF GOODWILL, EVEN IF EARTH HAS BEEN ADVISEDOF THE POSSIBILITY OF SUCH DAMAGES. Customer must notify Earth within three (3) business days of any obviousor visible alleged damage resulting from the Services.  Failure to report such damages in a timelymanner shall constitute a waiver and release of claims relating thereto.  Customer’s aggregate recovery from Earth for any claim other than those excluded herein shall notexceed the Fees paid by Customer for the Servicesgiving rise to such claim irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise.  If, for any reason, the foregoing limitationsare found by a court to be invalid or inapplicable under any applicable stateor federal law, Customer agrees that Earth’s total liability for all Losses ofany kind or nature shall be limited to actual damages without regard to anypunitive or exemplary damages provided by any applicable law.

7. Insurance

During the Term, Earth shall, at itsown expense, maintain and carry insurance in full force and effect whichincludes, without limitation, commercial general liability, umbrella andworkers’ compensation with financially sound and reputable insurers.  Upon Customer’s request, Earth shall provideCustomer with a certificate of insurance from Earth’s insurer evidence suchinsurance coverage.

8. Subcontractors

Earth shall have theright to hire, and delegate its obligations under this Agreement to,subcontractors to perform the Services under this Agreement, provided thatEarth shall remain fully responsible for the performance of all of itsobligations under this Agreement and for the performance of its subcontractorsand such subcontractors compliance with this Agreement.

9. Relationship of Parties

Earth is, and shall act in allrespects as, an independent contractor and shall have exclusive control overthe manner and method of performing the Services including the manner in whichits subcontractors perform the Services. Nothing herein shall authorize or empower either Party to assume orcreate any obligation or responsibility whatsoever, express or implied, onbehalf or in the name of the other Party, or to bind the other Party in anymanner, or make any representation, warranty, or commitment on behalf of theother Party.

10. Force Majeure

For purposes of this Agreement, “Force Majeure” means anyact, event or condition materially and adversely affecting the ability of a Partyto perform or comply with any of its material obligations, duties or agreementsrequired under this Agreement, if such act, event, or condition is beyond thereasonable control of the nonperforming Party or its agents relying thereon, isnot the result of the willful or negligent action, inaction or fault of the Partyrelying thereon, and the nonperforming Party has been unable to avoid orovercome the act, event or condition by the exercise of due diligence,including, without limitation: (1) an act of God, epidemic, landslide,lightning, earthquake, fire, explosion, storm, flood or similar occurrence; (2)an act of public enemy, war, blockage, insurrection, riot, general unrest orrestraint of government and people, civil disturbance or disobedience,sabotage, act of terrorism or similar occurrence; (3) a strike, work slowdown,or similar industrial or labor action; (4) a significant change in economicconditions; (5) an order or judgment (including without limitation a temporaryrestraining order, temporary injunction, preliminary injunction, permanentinjunction, or cease and desist order) or other act of any federal, state, countyor local court, administrative agency or governmental office or body whichprevents a Party from performing its obligations as contemplated by thisAgreement; or (6) adoption or change (including a change in interpretation orenforcement) of any federal, state or local law after the Effective Date ofthis Agreement, preventing performance of or compliance with the obligationshereunder.

Neither Party shall be liable to theother for damages without limitation (including liquidated damages) if such Party’sperformance is delayed or prevented due to an event of Force Majeure. In suchevent, the affected Party shall promptly notify the other of the event of ForceMajeure and its likely duration. During the continuation of the Force Majeureevent, the nonperforming Party shall (1) exercise commercially reasonableefforts to mitigate or limit damages to the performing Party; (2) exercisecommercially reasonable due diligence to overcome the Force Majeure event; (3)to the extent it is commercially reasonable, continue to perform itsobligations under this Agreement; and (4) cause the suspension of performanceto be of no greater scope and no longer duration than the Force Majeure eventrequires.  In the event of a delay ineither Party’s performance of its obligations hereunder for more than sixty(60) days due to an event of Force Majeure, the other Party may, at any timethereafter, terminate this Agreement.

11. Assignment

Customer may notassign or transfer any of its rights or obligations under this Agreementwithout the prior written consent of Earth.

12. Survival

All terms and provisions of thisAgreement that should by their nature survive the termination of this Agreementshall so survive.

13. Governing Law; Venue; Jurisdiction

This Agreement and performanceunder it will be governed by and construed in accordance with the laws of theState of Wisconsin, without regard to choice of law principles.  Venue and jurisdiction for any action orclaim arising out of or relating to this Agreement shall be in the state andfederal courts located in Brown County, Wisconsin.  The Parties consent to the venue andjurisdiction of such courts and waive any objections to such venue andjurisdiction.  In the event of a disputebetween the Parties, or if Earth is otherwise forced to engage attorneysregarding any matter arising out of this Agreement, Earth shall be entitled torecover from Customer all reasonable costs incurred including staff time, courtcosts, attorneys’ fees and other related expenses incurred in Earth’sengagement with such attorneys.

14. Entire Agreement

These Terms and the Order constitutethe entire agreement between the Parties with respect to the subject mattercontained herein and supersedes any and all previous agreements between theParties, whether written or oral, with respect to such subject matter. No waiver by any Party ofany of the provisions of this Agreement shallbe effective unless explicitly set forth in writing and signed by the Partyso waiving.  Ifany term or provision of this Agreementis found by a court of competent jurisdiction to beinvalid, illegal, or unenforceable, such invalidity, illegality, orunenforceability shall not affect any other term or provision of this Agreement orinvalidate or render unenforceable such term orprovision in any other jurisdiction.

15. Execution

This Agreement may be executed inmultiple parts counterparts, each of which is deemedan original, but all of which together are deemed to be one and the same agreement.  A signed copy ofthis Agreement delivered by facsimile, emailof a portable document format (.pdf) copy, or other means of electronictransmission is deemed to have the same legal effect as delivery of an originalsigned copy of this Agreement.  Each Party agrees that the electronic signatures,whether digital or encrypted, of the parties included in this Agreement areintended to authenticate this writing and to have the same force and effect asmanual signatures.
Last Updated Date: January 21, 2022