1. Scope, Term, and Termination.

1.1          ProGreen will provide the services to Client (the “Services”) specifically described in the purchaser order submitted to Client by ProGreen (the “Purchase Order”) subject to these Standard Terms and Conditions (these “Terms and Conditions”, together with the Purchase Order incorporated by reference, this “Agreement”). The scope of and pricing for the Services will be as set forth in the Purchaser Order. These Terms and Conditions will commence on the date of the Purchase Order and will continue in effect until the earlier of the completion of all Services or the termination of the Purchaser Order. If requested by Client and agreed to by ProGreen, ProGreen will perform additional services (“Additional Services”) at ProGreen’s then-current standard pricing, or an agreed-upon sum, per a separate purchaser order which will be subject to these Terms and Conditions.

1.2.         Estimates of probable Services costs are prepared on the basis of ProGreen’s experience in the industry and represent ProGreen’s professional judgment. However, since ProGreen has no control over the cost or availability of labor, materials and equipment or market conditions, ProGreen does not guarantee that estimates, proposals or bids will not vary from actual landscaping and installation costs.

1.3.         ProGreen may terminate this Agreement upon thirty (30) days’ prior written notice delivered to Client in the event that ProGreen determines in its sole discretion that the project site is unsafe or completion of the project has been compromised, including as a result of issues affecting access to the site, surface conditions or otherwise; provided, however, if payment due and owing to ProGreen under this Agreement is not made by Client within ten (10) days of written notice by ProGreen to Client, ProGreen may, without liability, immediately suspend its performance of the Services or terminate this Agreement. In the event of termination of this Agreement for any reason, Client will pay ProGreen for all Services performed up to the date of termination.  Sections 3, 4, 5, 6, 8, 10 and 11 will survive the expiration or termination of this Agreement.

2. Deposits; Terms of Payment.

2.1          ProGreen will collect from Client upon Client’s signing the Purchase Order a non-fundable deposit equal to fifty percent (50%) of the total estimated cost of the Services.

2.2          Except as specifically set forth in the Purchase Order, the following terms of payment will apply. Invoices submitted to Client for the Services will be due and payable within thirty (30) days from the date of the invoice. Any remaining amount of the deposit will be applied towards the balance of the final invoice. All past due amounts will accrue monthly interest at the lesser rate of two percent (2%) or the maximum rate allowed by law. By signing the Purchaser Order, Client agrees to pay all fees for the collection of any outstanding amounts. All Client credit or debit cards on file will automatically be used to pay for any outstanding balances due under this Agreement.

3. Ownership of Deliverables. Client agrees that any and all plans, diagrams, drawings, specifications, reports, electronic files, field data, notes, documents, instruments and other deliverables prepared by ProGreen and delivered to Client hereunder are instruments of professional service and may be used by Client only for purposes of the project underlying the Services. Such deliverables shall be considered authored and owned by ProGreen and shall remain the property of ProGreen, whether the project is completed or not. Client shall be permitted to retain copies of such deliverables for information and reference only. Any unauthorized use of such deliverables by Client shall be at the Client’s sole risk and without liability to ProGreen.
4. Limited Warranty. During the term of the Agreement, ProGreen warrants to Client that the Services rendered by ProGreen will be performed with the care and skill ordinarily used by other service providers in the landscaping industry practicing under similar conditions. ProGreen does not make, and hereby disclaims, any and all warranties not set forth in this paragraph 4, including, but not limited to, any and all express and/or implied warranties AND warranties of merchantability, fitness for a particular purpose, noninfringement and title and warranties arising from a course of dealing, usage, or trade practice. ProGreen does not warrant that the Services will be error-free.
5. Indemnification. Client shall, to the fullest extent permitted by law, indemnify, defend and hold harmless ProGreen and ProGreen’s affiliates, shareholders, members, officers, directors, employees, agents, representatives and subcontractors against any and all damages, losses, liabilities, claims, costs and expenses, including reasonable attorneys’ fees and court costs, to the extent caused by Client’s negligent acts in connection with the Services and the acts of Client’s contractors, subcontractors or consultants or anyone for whom Client is legally liable.
6. Limitation of Liability.

6.1.         In recognition of the relative risks and benefits of the Services to both Client and ProGreen, the risks have been allocated such that Client agrees, to the fullest extent permitted by law, to limit the liability of ProGreen and PROGREEN’S AFFILIATES, SHAREHOLDERS, MEMBERS officers, directors, employees, AGENTS, REPRESENTATIVES and subconsultants for any and all claims, losses, LIABILITIES, costs, EXPENSES AND damages of any nature whatsoever AND from any cause or causes, including attorneys’ fees and COURTS costs, so that the total aggregate liability of PROGREEN AND SUCH OTHER PERSONS shall not exceed the total feeS RECEIVED BY PROGREEN for THE services rendered pursuant to the PURCHASER ORDER. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law. Notwithstanding any provision of this agreement TO THE CONTRARY, ProGreen will not be liable to Client for any consequential, indirect or special damages, including without limitation, loss of profits OR revenues, with respect to any claims regarding the services even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.

6.2.         Notwithstanding any provision of this Agreement to the contrary, ProGreen’s scope of the Services does not and will not include any services related to or involving environmental conditions, whether in, on, under, near or adjacent to the project site, including, but not limited to, the presence of PCBs, petroleum, hazardous waste or radioactive materials, or compliance with any environmental health or safety laws. Client acknowledges and agrees that Client is solely responsible and liable for assessing any environmental health or safety issues or conditions with respect to any and all Client projects and that ProGreen is in no event liable for any environmental review or claims.

7. Subcontracting. ProGreen may subcontract its obligations under this Agreement to one or more subcontractors as deemed necessary by ProGreen, so long as ProGreen remains responsible for the subcontractor’s work under the terms of this Agreement. 
8. Independent Contractor. Client and ProGreen agree that ProGreen is an independent contractor in relation to Client, and will not be considered an agent or servant of Client, for all purposes of the Services provided under this Agreement. Client and ProGreen further agree that ProGreen has the right to control the details of the Services and that in no respect will any employee of ProGreen or Client be an employee of the other.
9. Force Majeure. Except for payment obligations hereunder, neither Client nor ProGreen will be liable for failure to perform any of its obligations under this Agreement where such performance is prevented or interfered with by riots, wars or hostilities between any nations, acts of God, acts of terrorism, fires, storms, floods, sever weather, earthquakes, strikes, labor disputes, shortages or delays of carriers, shortages or curtailments of raw materials, labor, power or other utility services, epidemic, pandemic and other causes beyond the reasonable control of either such party; provided, however, that if any such force majeure event delays a party’s performance by more than thirty (30) days, the other party may terminate this Agreement by providing written notice thereof to the delayed party.  This provision will not be construed as relieving either party from its obligation to pay any sums due the other party under this Agreement.
10. [Alternative Dispute Resolution. Any dispute, claim or controversy (each, a “Claim”) between Client and ProGreen arising out of or related to the Services or this Agreement shall be resolved in accordance with the terms of this paragraph 11. Any Claim by one such party must be submitted by that party to the other party in writing describing generally the nature of the Claim. The party receiving such notice shall respond to the Claim in writing addressed to the claimant party within thirty (30) days of receipt of the Claim. If such parties cannot resolve the Claim themselves within thirty (30) days following initial receipt of the Claim, then the parties shall submit the Claim for non-binding mediation to a mediator mutually selected by the parties within ten (10) days of the end of such 30-day period, and the costs of mediation shall be borne equally by such parties. The parties shall cause the mediator to complete mediation within sixty (60) days of the submission of the Claim to the mediator. If the parties are unsuccessful in resolving the Claim through mediation, the mediator shall provide written notice to the parties reflecting the same, and the parties may then proceed to seek an alternative form of resolution of the Claim, subject to the terms of this Agreement and the rights and remedies afforded to them by law.][1]
11. Miscellaneous. This Agreement, including the Purchaser Order, is the exclusive statement of the agreement between Client and ProGreen with respect to the matters set forth herein and therein, and supersedes all prior agreements, negotiations, representations and proposals, written and oral, with respect to the subject matter hereof and thereof. Terms or conditions added to any Purchase Order or other communication which conflict with the terms of this Agreement will be of no effect. This Agreement will be governed by and construed in accordance with the laws of the State of [South Carolina], excluding its conflicts of laws rules. Client and ProGreen agree that[, subject to the terms of Section 10 above,] any claim arising out of or relating to this Agreement shall be brought in a state or federal court of competent jurisdiction in the State of [South Carolina], and Client consents to the personal jurisdiction of the state and/or federal courts in such State. This Agreement will be binding upon and inure to the benefit of Client and ProGreen and their respective successors and assigns.  Without prior written consent of the non-assigning party, neither party may assign this Agreement. The various parts of this Agreement are severable and any determination of invalidity or unenforceability of any one provision shall have no bearing on the continuing force and effect of the remaining provisions. Neither Client nor ProGreen shall, by any act, delay, omission or otherwise, be deemed to have waived any of its rights or remedies under this Agreement except in a writing signed by that party.

[1] Note to Draft: We did not see any dispute resolution language in ProGreen’s client forms, but added non-binding mediation here for ProGreen to consider. Of course, if ProGreen would like for Clients to adhere to other forms of dispute resolution (binding mediation, arbitration, etc.), please let us know.