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Terms and Conditions - Snow Contract

The following Terms and Conditions (the “Conditions”), together with the attached Work Order / Agreement (the Work Order / Agreement together with any written (i) change orders, (ii) amendments, or (iii) modifications, the “Proposal”) constitute the terms of the agreement (the “Agreement”) between Outerland Holdings, LLC (“Outerland”) and the party that authorizes performance of services (“Client”) with respect to the performance of any services by Outerland set forth in the Work Order / Agreement, including but not limited to landscape maintenance, landscape construction, hardscaping, pavement maintenance, snow and ice removal and pest control (the “Services”) occurring on or at the property or properties specified in the Proposal (the “Property”). In the event of a conflict between the terms and provisions of the Conditions and any term or provision in a Proposal, the terms or provision of the Proposal shall govern.

 

1. SCOPE OF WORK

 

1.1 Outerland shall carry out and complete the Services described in the Proposal in a good and workmanlike manner and shall have no obligation to execute any further work unless otherwise agreed in writing between the parties.

 

1.2 Only the services and work contemplated in the Proposal are included in the Services. All other work or services are excluded.

 

1.3 Unless stated otherwise in the Proposal, to the extent applicable, the Client shall be responsible for (i) obtaining any and all necessary permissions, (ii) giving all notices, and (iii) paying all fees required to be paid in connection with the Services contemplated herein.

 

1.4 Outerland is not responsible for any plow damage caused if the property is not properly staked. Outerland is not responsible for any plow damage caused to any object or surface below the snow line. Plow damage includes, but is not limited to, grass, landscape lights, plants, walkways, steppingstones, stairs, and any tire marks or scratch marks on pavement or asphalt. To avoid damage, stakes should be placed 1” to 2” from the edge of the lawn areas and other areas where damage may occur.

 

1.5 Outerland is not responsible for hauling snow offsite unless otherwise indicated in the proposal.

 

2. CLIENT RESPONSIBILITIES

 

2.1 Client warrants that (a) Client is the owner of the Property or is authorized by the owner of the Property to carry out the Services on the Property; and (b) Outerland shall have free and unimpeded access to the Property for the purpose of carrying out the Services, and that (except where agreed otherwise) the Property will be cleared of all debris and personal property prior to commencement of the agreed works. Client acknowledges and agrees Outerland shall not be responsible for moving any personal property of the Client and shall not be responsible for any delays in its provision of the Services caused by obstructions from Client’s personal property. Client further acknowledges that if Outerland is forced to move any of Client’s personal property to provide the Services, Outerland shall not be responsible for any damages caused by its handling of such property.

 

2.2 Client agrees that no other parties (“Third Parties”) are to be allowed access to the Property during the Term (defined hereunder) without the written consent of Outerland, and in any event, Client agrees that it is solely responsible for any Third Parties on the property during the Term and Outerland shall not be responsible for any delays in its provision of the Services caused by Third Parties.

 

3. CONTRACT SUM AND PAYMENT

 

3.1 Client shall pay Outerland the agreed price or prices set forth in the Proposal (“Contract Sum”) in the manner(s), at the rate(s), and at the time(s) provided in the Proposal.

 

3.2 Client shall pay Outerland the amounts due under clause 3.1 within 30 days of receiving an invoice from Outerland.

 

3.3 Interest in the amount of 1.5% per month will be charged on all late payments under this Agreement. In addition to the foregoing, Outerland shall be entitled to recover from Client its fees and costs of collection, including, without limitation, attorney’s fees, in connection with any amounts due under the terms of this Agreement.

 

3.4 All materials supplied by Outerland, including materials incorporated into any works, shall remain the property of Outerland until payment has been made in full. Outerland shall be entitled to unrestricted access to the Property to dismantle and remove all agreed works and materials if payment is not made in accordance with the Agreement.

 

3.5 If the Property is sold or is in any way disposed of, prior to all payments being made to Outerland, the Client shall hold the proceeds of such sale or disposition in trust for Outerland and remit proceeds equal to the outstanding amount due under the Agreement to Outerland.

 

3.6 All sums shall be due and payable without deduction, setoff, counterclaim, or cross demand of any kind.

 

3.7 Payments not received by the due date may result in interruption, suspension, or cancellation of services. Should any interruption, suspension, or cancellation be implemented because of late or missed payments, Outerland Holdings is not liable for performing services after notification has been tendered.

 

4. VARIATIONS

 

4.1 Client may request modifications or amendments to the Services at any time during the term of this Agreement and Outerland shall use reasonable efforts to comply with all such requests. Notwithstanding the foregoing, any alteration or deviation from the above contractual specifications that result in a revision of the Contract Sum, as determined by Outerland, will be executed only upon the parties entering into a written amendment. Written amendments shall detail all changes to the original Agreement that result in the revision of the Contract Sum.

 

5. TERM

 

5.1 The term of this Agreement (the “Term”) shall commence on the date the Proposal is signed by and delivered to both parties (the “Effective Date”) and shall terminate upon the earlier of (i) Outerland’s completion of the Services, or (ii) termination of the Agreement in accordance with its terms.

 

5.2 This Agreement may be terminated at any time by mutual agreement of Outerland and the Client; or in accordance with the terms of Section 5.3

 

5.3 (a) Either party may terminate this Agreement upon providing the other party with sixty (60) day’s prior notice. (b) Outerland may immediately terminate this Agreement in the event Client fails to make when due any monetary payment required by this Agreement, and such failure shall continue for more than ten (10) business days after written notice from Outerland specifying such failure.

 

5.4 Upon termination of this Agreement, Outerland shall be entitled to a final accounting of and payment of any sums due to it in accordance with the terms of this Agreement through the date of termination.

 

6. FORCE MAJEURE

 

6.1 Outerland shall not be liable for any delay or failure to perform any of the Services if the delay or failure results from events or circumstances beyond its reasonable control, including but not limited to acts of God, strikes, accidents, war, fire, breakdown of plant or machinery, shortage or unavailability of materials, adverse weather conditions or adverse or difficult site conditions.

 

7. WARRANTY

 

7.1 Outerland warrants that all Services shall be completed in a workmanlike manner according to standard practices.

 

7.2 THE WARRANTIES STATED ABOVE IN THIS SECTION 7 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY Outerland. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

8. LIMITATION OF LIABILITY

 

8.1 To the fullest extent permitted by law, Outerland (or its affiliates, directors, employees, and representatives) shall not be liable for loss of profits; loss of business; depletion of goodwill and/or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; or any indirect, incidental, punitive, consequential, special, or exemplary damages of any kind.

 

8.2 If the Proposal provides for Outerland’s continuous maintenance services, such as snow or grounds maintenance, then in no event shall Outerland (or its affiliates, directors, employees, and representatives) be liable to Client for any claims, proceedings, liabilities, obligations, damages losses or costs in an amount exceeding the amount of fees earned by Outerland in connection with its provision of the Services during the three month period immediately preceding the event giving rise to the claim for liability.

 

8.3 If the Proposal provides for Outerland’s services related to a particular project, such as planting or hardscaping construction, and does not contemplate the provision of continuous services as described in Section 8.2 above, then in no event shall Outerland (or its affiliates, directors, employees, and representatives) be liable to Client for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the Contract Sum.

 

8.4 The limitations of liability set forth in this Agreement shall apply to the fullest extent permitted by law and shall apply whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Outerland has been advised of the possibility of such damage.

 

8.5 The Client understands that snow plowing may cause surfaces to be slippery. The client also understands that despite the application of sand, salt, or ice melt to slippery surfaces, slip-and-fall hazards may still be present. Therefore, the client agrees to indemnify and defend Outerland from any and all claims and lawsuits that may occur as a result of Outerland performing duties under this agreement.

 

8.6 The Client understands that Outerland will not be held liable for melting snow and ice that refreezes, also known as black ice, between or after services to the property have been performed unless an ice watch is requested by the client. Customer agrees to defend and hold harmlessOuterland from any suits or claims that may arise due to this condition.

 

8.7 The Client understands that Outerland will not be held liable for freezing or black ice conditions that may result from improper drainage of roofs, overhangs, eves, or anything resembling or acting as a carport, garage, or drive-thru window. This includes but is not limited to improper downspouts, leaks caused by ice dams, snow that has fallen from roofs of any of the aforementioned, or any other defect or condition of the property that results in the accumulation of frozen water or ice. Customer agrees to defend, indemnify, and hold harmless Outerland from any suits or claims of any nature or kind that may arise due to this condition.

 

8.8. Customer understands that Outerland will not be held liable for any persons doing business or visiting the site under contract, for any reason, who choose not to use clearly marked parking or pedestrian areas including but not limited to walkways, parking areas, or handicap ramps. Customer agrees to defend, indemnify, and hold harmless Outerland from suits or claims of any nature or kind that may arise due to this condition.

 

9. MISCELLANEOUS

 

9.1 This Agreement represents and contains the entire agreement between the parties. Prior discussions or verbal representations by Outerland or Client that are not contained in this Agreement are not a part of this Agreement. In the event that any provision of this Agreement is at any time held by a Court to be invalid or unenforceable, the parties agree that all other provisions of this Agreement will remain in full force and effect. Any future modification of the Proposal, including all amendments hereto must be made in writing and executed by Outerland and Client in order to be valid and binding upon the parties. Notwithstanding anything to the contrary herein, Outerland may amend the Conditions without the prior written consent of the Client, provided that Outerland provide the Client with notice of the change. The provisions of this Agreement shall be binding on the parties hereto and their respective heirs, successors, and assigns. This Agreement shall not be assigned by Client without the written consent of Outerland.

 

9.2 The Client hereby grants Outerland permission to use any image, picture, photo, and/or digital images, and the like, taken or made on behalf of Outerlands’ activities. The customer agrees that the images have complete ownership of such pictures, etc., including the entire copyright, and may use them for internal training, marketing, and promotional materials. Outerland hereby acknowledges that the use of such imagery in no way implies a direct endorsement of Outerland. The customer acknowledges that they will not receive any compensation, etc., for the use of such pictures, etc., and hereby release Outerland and its agents and assigns from any and all claims which arise out of or are in any way connected with such use.

 

9.3 All notices required or permitted under this Agreement shall be in writing to the other party by (a) United States mail, certified or registered, postage prepaid, and addressed; (b) hand delivery; or (c) the use of a recognized overnight courier, to the addresses set forth in the Proposal, or such other address as either party shall later specify. Notices shall be deemed received within three (3) days after mailing if sent by certified or registered mail; on the date of delivery if delivered by hand; or within one (1) day following deposit with a recognized courier for overnight delivery.

 

9.4 This Agreement shall be governed by and construed in accordance with the laws of the State of Massachusetts without regard to its conflicts of laws rules that refer to or apply the laws of another jurisdiction. The parties hereto submit to the jurisdiction of the federal and state courts located in Barnstable County in the State of Massachusetts and agree that at the Company’s option, all litigation under or relating to this Agreement shall be conducted in such courts.

 

9.5 No delay or omission on the part of either party in exercising any right hereunder shall operate as a waiver of such right or of any other right hereunder. Any waiver of any such right on any one occasion shall not be construed as a bar to or waiver of any such right on any such future occasion.

 

9.6 TO THE EXTENT PERMITTED BY LAW, EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY IN CONNECTION HEREWITH.


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