1. General. These Terms and Conditions constitute the entire agreement between Summit Landscape Management, Inc./Summit Tree Service, Inc. and its subcontractors (collectively “Summit”) and Customer.
  2. Contract Work. Summit shall furnish the labor, materials, equipment, tools, and services (the “Work”) described in the Proposal at the address identified in the Proposal. The Work shall be conducted in a good, workmanlike manner consistent with accepted industry standards. There shall be no obligation to provide any additional work or services unless otherwise agreed to in writing by Summit and Customer.
  3. Contract Sum. The Contract Sum is the total amount to be paid to Summit for the Work. The prices set forth in the Proposal are an estimate of the cost for the Work and not a fixed price. All Work, including additional work, is provided on a time and material basis which may be increased from the price reflected in the Proposal. The Contract Sum is subject to escalation in the event of delays occasioned by the Customer, unforeseen site conditions and increases in the costs of wages, fuel, supplies and/or materials.
  4. Payment. The Customer shall be responsible for full payment, irrespective of whether or not the Work is or may be covered by the Customer’s insurance company. Customer shall be responsible for late fees in the amount of 1.5% per month for any and all balances more than thirty (30) days old. In the event Customer does not timely pay, Summit may suspend all Work and/or pursue legal action. Customer agrees to pay all of Summit’s reasonable attorney’s fees, litigation costs, and all other charges and costs incurred by Summit in collecting payment from Customer. Customer also agrees to pay statutory charges applicable to a form of payment returned by Customer’s bank for any reason.
  5. Site Conditions. The Proposal does not include costs associated with underground items (i.e., septic tanks, drain fields, irrigation systems and utility services) and site conditions (i.e., rocks, debris, unstable, compacted or clay soils) which are not visible or which the Customer does not specify prior to the commencement of the Work. If the Work requires excavation, blasting and/or disturbance to subsurface soils, Summit will not commence the Work until a dig notice is issued and all public underground utilities have been properly marked as set forth in the Michigan Miss Dig Underground Facility Damage Prevention and Safety Act, MCL § 460.721, et seq. Customer is solely responsible for locating and identifying private underground utilities or facilities including, but not limited to, irrigation systems, electrical wiring, wells, electric pet fencing, septic and drainage systems, and under no circumstances will Summit be responsible for damage to private underground utilities or facilities not identified, properly marked or disclosed by the Customer.
  6. Site Damage. Customer acknowledges that the nature of the Work and the use of equipment associated with the Work may result in unforeseen damage to the surrounding terrain and adjacent plant material. In acknowledging this risk Customer agrees that the costs associated with repairing such damage will be borne solely by Customer.
  7. Changes in the Work. From time-to-time, Customer may order changes in the Work consisting of additions, deletions, or modifications. Such changes in the Work shall be by a written change order (“Change Order”) signed by both the Customer and an authorized representative of Summit. In no event, however, shall failure by the Customer to obtain a written Change Order for the Work relieve Customer from paying Summit for any additional work performed by Summit at Customer’s request.
  8. Customer’s Duties and Liability. Customer agrees to defend, hold harmless and indemnify Summit against all claims, lawsuits and any other liability or injury to persons or damage to property or personal injury (including death) arising from any and all the Work performed by Summit.
  9. Limitation of Damages. Summit’s liability and Customer’s exclusive remedy shall, at Summit’s election, be to repair or replace that portion of the Work found by Summit to be defective following its inspection. In no event, however, shall Summit’s liability to Customer or any of Customer’s agents, contractors, successors, or assigns exceed the total proceeds actually received by Summit from Customer for the Work. Summit shall under no circumstances be liable for incidental or consequential damages. If Customer believes that the Work or any portion thereof is defective or unsatisfactory, Customer shall provide written notice to Summit within ten (10) days after the Work is completed, describing in detail why Customer believes the work is defective or otherwise unsatisfactory. If such notice is not timely provided, Customer shall be deemed to have accepted the Work and Summit will have no obligation to repair or replace the Work.
  10. Ownership and Access. Customer warrants that she/he/it owns all trees, plant material and property upon which the Work is to be performed, and that Summit can legally and adequately access the property to perform the Work. Prior to the commencement of the Work, Customer will provide Summit with all pertinent information as to the location of Customer’s property boundaries, which Summit may rely on to perform the Work. Summit shall not be liable for damages or costs resulting from errors or omissions made by Customer regarding ownership rights or property boundaries including, but not limited to, claims for common law or statutory trespass and/or nuisance, and Customer further agrees to indemnify and defend Summit from any claims arising from ownership or property rights which result from Customer’s errors or omissions.
  11. Warranty. All supplies and materials, including plants, trees, shrubs and turf, are warranted by Summit from one year from completion of the Work unless otherwise specified. This warranty does not include the labor necessary to replace supplies and materials, including plants, trees, shrubs and turf. This warranty is void if the damage or loss is caused by the Customer, improper care, under watering, overwatering, improper trimming or pruning, accident or any other event outside of Summit’s control. This warranty shall not apply to hydromulch grass installations, and Customer is solely responsible for the care of the seed and grass once hydroseeding or hydromulching has been completed, including acts of God which may cause a complete loss of grass and/or grass seed.
  12. Pesticides and Chemicals. The Work may include the use of pesticides and/or chemicals which when ingested, inhaled or absorbed can be harmful to humans and/or pets. Additional precautions may be necessary for pregnant women, infants, small children, senior citizens or persons taking prescription medications. Customer acknowledges these risks, agrees to notify Summit of any area where pesticides or chemicals should not be applied and further to avoid any area treated with pesticides and/or chemicals until the time period provided by Summit has elapsed. Customer agrees that Summit is not responsible for any unforeseen or abnormal reactions resulting from the use of pesticides and/or chemicals.
  13. Copyright. Ownership and copyright for any drawings or specifications used for the Work belong to Summit and shall not be used by Customer for any other purpose other than for the Work performed by Summit.
  14. Returns. Summit does not accept the return of plants, plant materials, soil, rock, brick or any other bulk materials following delivery, or irrigation parts, lights, wiring or other buried items once installed.
  15. Termination by Summit. Summit may terminate this Agreement at any time with or without cause upon 15 days written notice to Customer.
  16. Dispute Resolution; Claims. Any dispute arising out of the Work shall be governed by, and construed in accordance with, the laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether in the State of Michigan or any other jurisdiction). Summit and Customer both irrevocably agree that any legal suit, action or proceeding against it arising out of or based upon Work may be instituted in any state or federal court located in the State of Michigan (each a “Michigan Court”), and preferably the state and federal court located in Grand Rapids, Michigan, and irrevocably waives, to the fullest extent such party may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such action in any Michigan Court, and irrevocably submits to the exclusive jurisdiction of any such Michigan Court in any such action.
  17. Enforceability. If any provision herein is held to be invalid or unenforceable, it shall be ineffective only to the extent of the invalidity, without affecting or impairing the validity and enforceability or the remainder of the provision or the remaining provisions.
  18. Waiver; Remedies. No term or provision herein shall be deemed waived and no breach excused unless either (i) waiver or bar is required by these Terms and Conditions or (ii) such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, shall not constitute a consent to, or waiver of, or excuse for any other different or subsequent breach.
  19. Assignment. Summit may assign to any third party its rights and obligations with respect to Customer.
  20. Force Majeure. Summit shall not be responsible or liable for any delays in in the Work due to any cause or condition beyond its control, including, without limitation, fire, flood, earthquake, labor dispute, shortages of materials or supplies, riot or other civil disturbances, war, acts of God or nature, accident or any acts of government.