Terms and Conditions | Delray Garden Center

TERMS AND CONDITIONS FOR LANDSCAPE INSTALLATION SERVICES

BY ACCEPTING THE WORK ORDER (AS DEFINED HEREIN), EITHER BY CLICKING THE “ACCEPT” BUTTON OR COMPLYING WITH ANY OTHER MEANS FOR ACCEPTANCE PROVIDED BY DELRAY GARDEN CENTER HOLDINGS, LLC (“SERVICE PROVIDER”), THE CLIENT: (A) ACCEPTS THESE TERMS AND CONDITIONS (THESE “TERMS”) AND AGREES THAT CLIENT SHALL BE LEGALLY BOUND BY THESE TERMS AND (B) REPRESENTS AND WARRANTS THAT THE INDIVIDUAL SO ACCEPTING THE WORK ORDER HAS THE RIGHT, POWER AND AUTHORITY TO BIND CLIENT TO THESE TERMS.

The following terms shall apply to the sale of the Services (as defined herein):

DEFINITIONS

“Affiliate” of a Person (as defined herein) means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Client”, the client set forth in the Work Order.
“Person” means an individual, firm, organization, company, association, joint venture, partnership, trust, business, syndicate, fiduciary, entity, corporation, and all other groups or combinations.
“Service Provider Personnel”: employees engaged by Service Provider to perform the Services (excluding any Subcontractor).
“Subcontractor”: any third party that is engaged by Service Provider to perform any part of the Services.
“Work Order”: the attached order detailing Services and Fees (together with these Terms, this “Agreement”).

SERVICES

Service Provider shall provide the services expressly described in the Work Order (the “Services”). Any services not described in the Work Order are out of scope (“Additional Services”). Service Provider has no obligation to provide any Additional Services. Additional Services will only be performed pursuant to an amended Work Order executed by Service Provider and Client that describes the additional scope and any corresponding adjustments to the Fees.

SERVICE PROVIDER’S OBLIGATIONS

Service Provider may, in its sole and absolute discretion and without prior notice or consent, engage Subcontractors to perform any part of the Services; provided, however, that Service Provider shall remain responsible for delivery of the Services and for the acts and omissions of its Subcontractors.
Service Provider shall be responsible for all Service Provider Personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers’ compensation insurance payments and disability benefits.

PERMITS

Service Provider will be responsible for obtaining permits required by applicable law for the performance of the Services (“Permits”). Client will cooperate with Service Provider in obtaining any Permits.

FEES; PAYMENT TERMS

In consideration of the provision of the Services by Service Provider, Client shall pay the fees set forth in the Work Order (the “Fees”).
As a condition to Service Provider commencing any Services, Client will pay Service Provider a deposit equal to fifty percent (50%) of the Fees, or such other amount set forth in the Work Order (the “Deposit”). Service Provider will have no obligation to begin work, allocate resources or reserve a start date until the Deposit is received in cleared funds. Service Provider may hold the Deposit in its general accounts and owes no interest with respect thereto unless required by applicable law.
The Deposit will be refundable to Client only in the following circumstances:
if Service Provider fails to commence performance of the Services within forty five (45) business days after the agreed start date, other than due to Client’s delay or a force majeure event, then Client may terminate this Agreement and receive a refund of the Deposit; and if Service Provider and Client mutually agree in writing to terminate this Agreement before Service Provider has materially mobilized or incurred non-recoverable costs, then Service Provider will refund the Deposit, less reasonable and documented pre-mobilization costs, if any.
Client shall pay the amounts set forth in the Work Order in full in accordance with the payment timeline set forth in the Work Order. If such amounts are not paid in full in accordance with the payment timeline set forth in the Work Order, then any unpaid amounts shall accrue interest at the rate of one and a half percent (1.5%) per month. Service Provider expressly reserves all rights available under applicable law to assert, perfect and enforce any lien, security interest or similar encumbrance against Client’s property arising out of or relating to unpaid Fees.
In addition to the amounts set forth in the Work Order, Client shall promptly (and in any event within the net payment terms after receiving an invoice therefor) pay any invoiced amounts for additional material, equipment and labor costs on an agreed cost plus basis, which costs are incurred by Service Provider through no fault of Service Provider. Such additional costs may include, without limitation, additional costs arising from the discovery of rock below the surface which necessitates more costly procedures for excavation, backfilling, compaction, hauling excess material and importing new material to complete the installation.
All payments hereunder shall be in US dollars and made by check, credit card, ACH, wire transfer, or other form of payment acceptable to Service Provider.
Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder.

LIMITED WARRANTY

Service Provider warrants that any materials, equipment or components that Service Provider installs in connection with the Services (other than bulbs, annuals, perennials, seeded lawns, sod lawns, groundcovers, roses and plants in planter boxes) will, for a period of one hundred twenty (120) days from the installation date (the “Warranty Period”), be free from defects in material and workmanship; provided, however, that if Client engages Service Provider to provide maintenance services with respect to such materials, equipment or components following such installation, then the Warranty Period shall be increased to three hundred sixty (360) days with respect to such materials, equipment or components for which maintenance is being provided.
If any materials, equipment or components that Service Provider installs in connection with the Services (other than bulbs, annuals, perennials, seeded lawns, sod lawns, groundcovers, roses and plants in planter boxes) fail to conform to the foregoing limited warranty, then Client must notify Service Provider in writing within the Warranty Period, describing the nonconformity in reasonable detail. As Client’s exclusive remedy for a breach of the limited warranty set forth in this Section, Service Provider will, at its option, (a) replace such nonconforming items one time without charge to Client or (b) refund the purchase price paid by Client for the nonconforming items.
This limited warranty does not cover any issues arising from (a) misuse, neglect, improper maintenance or operation contrary to documentation; (b) modification or repair by any Person other than Service Provider; (c) combination with items not provided or approved by Service Provider; (d) ordinary wear and tear; (e) accidents, power surges, environmental factors or acts of God; or (f) relocation after installation.

TERMINATION; EFFECT OF TERMINATION

Service Provider shall be in default of this Agreement if Service Provider repeatedly fails to perform its material obligations required by this Agreement. If Service Provider fails to cure such default within forty five (45) days after Service Provider’s receipt of written notice from Client of such default, then Client may terminate this Agreement upon an additional ten (10) days’ written notice to Service Provider. If Client terminates this Agreement for cause as provided herein, then Service Provider shall be paid for all Services performed through the date of such termination.
Service Provider may terminate this Agreement upon ten (10) days’ notice to Client if Client fails to pay Service Provider in accordance with the terms of this Agreement. If Service Provider terminates this Agreement pursuant to this Section prior to commencing performance of the Services, then Client shall, promptly following such termination (and in any event within ten (10) days thereafter), pay Service Provider (a) the costs of all materials ordered, whether delivered or not, and any cancellation, restocking, or return charges, (b) all reasonable demobilization costs, and (c) Service Provider’s overhead and profit. If Service Provider terminates this Agreement pursuant to this Section after commencing performance of the Services, then Client shall, promptly following such termination (and in any event within ten (10) days thereafter), pay Service Provider all unpaid Fees.
Upon expiration or termination of this Agreement for any reason, the rights and obligations of Service Provider and Client set forth in this Section, and any right or obligation of Service Provider and Client in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

FORCE MAJEURE

Service Provider shall not be liable or responsible to Client, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay arises out of events beyond the reasonable control of Service Provider. Service Provider shall endeavor to give written notice stating the nature of the force majeure event and the estimated period of time that the occurrence is expected to continue. Service Provider will use reasonable efforts to mitigate such failure or delay.

LIMITATION OF LIABILITY

In no event shall Service Provider be liable to Client for consequential, indirect, incidental, special, exemplary or punitive damages, lost profits or revenues, or diminution in value of business arising out of or relating to any breach of this Agreement, regardless of (x) whether the damages were foreseeable or (y) the legal or equitable theory (contract, tort, or otherwise) on which the claim is based. Further, Service Provider shall have no liability for any materials, equipment or components that Service Provider furnishes, delivers or installs in connection with the Services to the extent issues arise from: (a) misuse, neglect, improper maintenance or operation contrary to documentation; (b) modification or repair by any Person other than Service Provider; (c) combination with items not provided or approved by Service Provider; (d) ordinary wear and tear; (e) accidents, power surges, environmental factors, acts of God; or (f) relocation after installation. In addition, Service Provider shall not be liable to Client for any damage to underground utilities, cesspools, septic tanks, irrigation systems or any other lines unless (x) properly located by “as built” drawings or staked by Client before Service Provider begins work under this Agreement and (y) at a depth below the final grade as required by applicable law. Additionally, Service Provider shall not be liable for any damage to Client's property, structures, or items that are not in compliance with applicable building codes, regulations, or laws at the time of Services, regardless of whether such non-compliance was known to Service Provider.
Service Provider’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, shall not, under any circumstances whatsoever, exceed the total of the amounts actually paid to Service Provider under this Agreement.

MISCELLANEOUS

Service Provider is an independent contractor. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between Service Provider and Client, and neither Service Provider nor Client shall have authority to contract for or bind the other party in any manner whatsoever.
All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email or other means of electronic transmission if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth in the Work Order (or at such other address for a party as shall be specified in a notice given in accordance with this Section).
This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
This Agreement constitutes the sole and entire agreement of Service Provider and Client with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
Except as expressly permitted by this Agreement, neither Service Provider nor Client may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party. If, notwithstanding this Section, Client assigns or shall attempt to assign its rights, title, obligations or interests in this Agreement, or any part thereof, without Service Provider’s prior written consent, then Client shall be deemed to have materially breached this Agreement and Service Provider shall have the right to terminate this Agreement and pursue its available remedies against Client. Notwithstanding the foregoing, Service Provider may, upon prior written notice to Client, assign this Agreement to an Affiliate of Service Provider or to a successor of all or substantially all of the assets of Service Provider through merger, reorganization, consolidation or acquisition. Upon such assignment and the assumption of such rights and obligations by Supplier’s assignee, Service Provider shall be relieved of all liability and responsibility under this Agreement, and Client shall look only to such assignee.
This Agreement is for the sole benefit of Service Provider and Client and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
The headings in these Terms are for reference only and shall not affect the interpretation of these Terms.
This Agreement may only be amended, modified or supplemented by an agreement in writing signed by Service Provider and Client. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, Service Provider and Client shall negotiate in good faith to modify this Agreement so as to effect the original intent of such parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Florida. Any legal suit, action or proceeding arising out of this Agreement or the Services provided hereunder shall be instituted exclusively in the state courts of the State of Florida located in Palm Beach County, and each of Service Provider and Client irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
EACH OF SERVICE PROVIDER AND CLIENT IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
If any action, suit or other legal or administrative proceeding is instituted or commenced by Service Provider to collect any amounts due under this Agreement, then Service Provider shall be entitled to recover its actual attorneys’ fees and court costs from Client.