These Terms of Service (the “Terms”) constitute a legally binding agreement between MH Landscaping, a [State] [Entity Type] (the “Company”), and the customer identified in the applicable Service Order (“Client”). Company and Client may be referred to individually as a “Party” and collectively as the “Parties.”
These Terms govern all Services performed by Company and are incorporated into each Service Order. Each Service Order, together with these Terms, constitutes a separate and independent agreement (each, an “Agreement”).
BY APPROVING A SERVICE ORDER, EXECUTING AN AGREEMENT, REQUESTING SERVICES, OR OTHERWISE ENGAGING COMPANY TO PERFORM SERVICES, CLIENT ACKNOWLEDGES AND AGREES TO BE LEGALLY BOUND BY THESE TERMS.
1.1 Agreement
“Agreement” means these Terms together with the applicable Service Order.
1.2 Services
“Services” means all landscaping, maintenance, installation, or related services described in a Service Order.
1.3 Service Order
“Service Order” means any estimate, proposal, quote, invoice, subscription, work order, or other written or electronic document issued by Company and accepted or approved by Client.
1.4 Substantial Completion
“Substantial Completion” means the date on which Company determines, in its reasonable professional judgment, that the Services are sufficiently complete in accordance with the applicable Service Order such that the work is usable for its intended purpose, notwithstanding minor incomplete or corrective items that do not materially impair functionality or use.
Substantial Completion shall be deemed to have occurred upon the earliest of: (a) Company’s written notice of completion; (b) Client’s use or occupancy of the work; or (c) final invoicing by Company.
2.1 Separate Agreements
Each Service Order constitutes a separate Agreement governing the specific Services described therein.
No Service Order shall modify any other Service Order unless expressly stated in a writing signed by Company.
2.2 Incorporation
These Terms are incorporated into and made a material part of every Service Order, whether or not expressly attached.
2.3 Order of Precedence
In the event of any conflict between these Terms and a Service Order, the Service Order shall control solely with respect to the specific scope, pricing, and scheduling terms expressly set forth therein.
These Terms shall control in all other respects.
2.4 Non-Overridable Provisions
The following provisions (the “Protected Provisions”) shall apply to all Agreements and shall not be modified, superseded, or waived by any Service Order unless expressly permitted by this Section 2.4 or set forth in a separate written amendment executed by an authorized representative of Company:
(a) Section 8 (Payment Terms), except as to payment timing, deposit amount, progress billing structure, final payment timing, late charge amount, interest amount, or waiver of interest or late charges, each of which may be expressly modified or waived in an applicable Service Order for that specific Agreement only;
(b) Section 9 (Non-Payment; Enforcement);
(c) Section 11 (Warranty; Limitations);
(d) Section 12 (Limitation of Liability; Indemnification);
(e) Section 17 (Dispute Resolution);
(f) Section 18 (Governing Law); and
(g) Section 19 (General Provisions).
Any attempted modification of the Protected Provisions inconsistent with this Section shall be void and of no effect.
2.5 Default Terms
To the extent a Service Order does not address a matter, these Terms shall govern.
2.6 No Implied Amendments
No course of dealing, course of performance, or usage of trade shall modify these Terms.
3.1 Scope
Company shall perform the Services strictly in accordance with the applicable Service Order.
3.2 Exclusions
Any services not expressly set forth in the Service Order are excluded and shall require a written Change Order pursuant to Section 4.
3.3 No Guarantee of Results
Client acknowledges that landscaping outcomes are inherently variable and dependent upon environmental, site, and maintenance conditions.Company makes no representation or warranty as to any specific aesthetic or performance outcome except as expressly set forth in Section 11.
5.1 Scheduling
All schedules are estimates only and subject to modification based on operational considerations.
5.2 Access
Client shall provide Company with safe, reasonable, and unobstructed access to the project site.Failure to provide such access may result in delays, rescheduling, or additional charges and shall not relieve Client of payment obligations.
5.3 Force Majeure
Company shall not be liable for any delay or failure in performance caused by events beyond its reasonable control.
Such events include, without limitation, weather conditions, acts of God, labor shortages, supply chain disruptions, or governmental actions.
6.1 Disclosure
Client shall disclose to Company all known site conditions, access limitations, utilities, hazards, prior repairs, drainage issues, irrigation components, underground lines, invisible fencing, septic components, private utility lines, and any other conditions that may affect the Services, the safety of the project site, the pricing of the Services, or the feasibility of performance.
6.2 Permits and Approvals
Client shall obtain, at Client’s sole cost and expense, all permits, approvals, consents, permissions, authorizations, surveys, utility markings, and similar requirements necessary for the Services, unless expressly assumed by Company in the applicable Service Order.
6.3 Access and Site Readiness
Client shall provide Company with safe, reasonable, and unobstructed access to the project site and all work areas.
Client shall remove or secure vehicles, pets, outdoor furniture, decorations, hoses, and other movable obstructions that may interfere with the Services or create unsafe working conditions.
6.4 Maintenance and Aftercare
Client shall maintain all installed or treated materials, landscaping, lawn areas, plantings, hardscape areas, and related improvements in accordance with industry standards and any written aftercare, maintenance, irrigation, watering, or usage instructions provided by Company.
Without limitation, Client acknowledges that improper watering, overwatering, underwatering, mowing over newly seeded areas, disturbance of newly installed materials, failure to protect treatment areas, or failure to follow written care instructions may adversely affect results and may void applicable warranty protections.
6.5 Compliance
Client shall comply with all applicable laws, ordinances, codes, HOA requirements, easement restrictions, and similar obligations relating to the property and the Services.
6.6 Unsafe Conditions
Company may delay, suspend, or refuse performance where Company reasonably determines that site conditions are unsafe, inaccessible, unlawful, materially different from represented conditions, or otherwise unsuitable for performance.
6.7 Effect of Non-Compliance
Failure by Client to satisfy any obligation under this Section 6 may result in additional charges, delays, suspension of Services, required Change Orders, denial of warranty coverage, or other remedies available under this Agreement.
7.1 Utilities
Company shall not be responsible for damage to any unmarked, mismarked, inaccurately marked, concealed, private, or undisclosed underground or subsurface utilities, lines, pipes, wiring, conduits, irrigation components, drainage components, septic components, low-voltage systems, invisible fencing, or similar installations.
7.2 Hidden or Concealed Conditions
Company shall not be responsible for latent, concealed, underground, subsurface, unknown, or otherwise non-visible site conditions, including buried debris, rock, roots, fill, remnants of prior construction, unstable soil, unsuitable soil, drainage defects, or hazardous conditions not reasonably observable at the time of assessment.
7.3 Pre-Existing Conditions and Damage
Company shall not be responsible for pre-existing damage, deterioration, defective conditions, code issues, settling, structural weakness, erosion, drainage problems, or pre-existing site failures at or near the project site.
7.4 External Factors
Company shall not be responsible for damage, delay, performance issues, or changed conditions resulting from weather, flooding, runoff, erosion, pests, disease, third-party conduct, acts of God, municipal action, utility action, or other matters beyond Company’s reasonable control.
7.5 Client Responsibility for Information
Client acknowledges that Company is entitled to rely upon the accuracy and completeness of all information, disclosures, markings, representations, plans, measurements, and directions provided by Client or by third parties acting on Client’s behalf.
7.6 Discovery of Changed Conditions
If Company encounters site conditions that are concealed, unsafe, materially different from those disclosed, or materially different from those reasonably anticipated, Company may stop work, revise scope, revise pricing, revise schedule, or require a Change Order as a condition of continuing performance.
10.1 Term
Each Agreement shall remain in effect until completion or earlier termination.
10.2 Termination for Breach
Either Party may terminate for material breach.
10.3 Opportunity to Cure
Except for non-payment, the breaching Party shall be afforded a reasonable opportunity to cure.
10.4 Survival of Obligations
All payment obligations shall survive termination.
17.1 Good Faith Negotiations
The Parties shall first attempt in good faith to resolve any dispute, controversy, or claim arising out of or relating to this Agreement, the Services, or the breach thereof through informal discussions between authorized representatives of the Parties.
17.2 Mediation Option
Before commencing arbitration, either Party may request non-binding mediation. If the Parties mutually agree to mediation, such mediation shall occur in the county identified in the applicable Service Order or, if no county is identified, in [County, State].
17.3 Binding Arbitration
Any dispute, controversy, or claim arising out of or relating to this Agreement, the Services, or the breach thereof that is not resolved by good faith negotiations or agreed mediation shall be resolved by binding arbitration administered by the American Arbitration Association in accordance with its applicable commercial arbitration rules then in effect, except as otherwise expressly required by applicable law.
17.4 Venue
The place of arbitration shall be [County, State], unless the Parties agree otherwise in writing.
17.5 Provisional and Equitable Relief
Nothing in this Section shall prevent Company from seeking temporary, provisional, injunctive, lien-related, collection-related, or other equitable relief in a court of competent jurisdiction where necessary to preserve rights, secure payment, protect property, or prevent immediate and irreparable harm.
17.6 Judgment on Award
Judgment upon any arbitration award may be entered in any court having jurisdiction thereof.
19.1 Entire Agreement
This Agreement constitutes the entire agreement between the Parties.
19.2 Modifications
Any modification must be in a written instrument executed by both Parties.
19.3 Severability
If any provision is held invalid, the remaining provisions shall remain in full force and effect.
19.4 Waiver
19.4.1 No waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom enforcement is sought.
19.4.2 No waiver of any breach, default, right, remedy, charge, fee, interest amount, payment deadline, or performance obligation shall be deemed a continuing waiver or a waiver of any prior, concurrent, or subsequent breach, default, right, remedy, charge, fee, interest amount, payment deadline, or performance obligation.
19.4.3 Notwithstanding the foregoing, Company may, in a Service Order or other written instrument applicable to a specific Agreement, expressly modify or waive certain business terms for that specific Agreement, including payment timing, deposit requirements, progress billing, final payment timing, late charges, or interest. Any such modification or waiver shall be limited solely to the specific Agreement and matter expressly identified and shall not modify any other Agreement or any remaining rights or remedies of Company.
19.5 Assignment
Client may not assign without consent. Company may assign without restriction.
19.6 No Third-Party Beneficiaries
This Agreement is for the sole benefit of the Parties.
19.7 Independent Contractor
The Parties are independent contractors.
19.8 Headings
Headings are for convenience only.
19.9 Survival
Provisions which by their nature should survive shall survive termination.
19.10 Notices
19.10.1 Form
All notices, demands, requests, approvals, consents, claims, and other communications under this Agreement shall be in writing.
19.10.2 Delivery Methods
Notices may be delivered by personal delivery, nationally recognized overnight courier, certified mail with return receipt requested, or email to the contact information set forth in the applicable Service Order or otherwise designated by a Party in writing.
19.10.3 Effective Date
A notice shall be deemed given:
(a) when delivered personally;
(b) one (1) business day after deposit with a nationally recognized overnight courier;
(c) three (3) business days after deposit in certified mail, postage prepaid; or
(d) upon electronic transmission by email, provided that no bounceback, delivery failure notice, or similar rejection message is received by the sending Party, and if sent after 5:00 p.m. local time, then on the next business day.
19.10.4 Operational Communications
Routine project communications, scheduling updates, billing communications, worksite communications, and other day-to-day operational communications may be sent electronically and shall be effective for operational purposes even if not sent as formal legal notice.
19.11 Attorneys’ Fees
The prevailing Party shall be entitled to recover reasonable attorneys’ fees to the extent permitted by law.
19.12 Time is of the Essence
Time is of the essence with respect to all obligations under this Agreement.
19.13 Right to Update Terms
19.13.1 General Right
Company reserves the right to amend, revise, supplement, restate, or otherwise update these Terms from time to time in its sole discretion.
19.13.2 Future Service Orders
Any updated version of these Terms shall apply to all Service Orders issued, accepted, approved, renewed, or entered into after the effective date of such updated Terms.
19.13.3 Ongoing Recurring Services
With respect to ongoing recurring, subscription, or month-to-month Services, updated Terms may apply prospectively upon prior notice to Client and after the stated effective date of the update, to the extent permitted by applicable law.
19.13.4 No Retroactive Effect on Completed Work
No update to these Terms shall retroactively alter the agreed scope, price, warranty period, or dispute status of Services that were fully completed before the effective date of such update, unless the Parties expressly agree otherwise in writing.
19.13.5 Acceptance
Client’s continued request for, approval of, payment for, or use of Services after the effective date of updated Terms shall constitute acceptance of such updated Terms to the extent permitted by law.