Services Contract

SERVICES CONTRACT

Terms and Conditions

These Terms and Conditions shall be incorporated into any Estimate, Proposal or Quote (the “Agreement”) and govern the contractual agreement between The Sharper Edge, Inc., a Wisconsin corporation (“Sharper Edge”), and its client (“Client”) (together, the “Parties”). Sharper Edge is engaged in the business of offering landscaping services, lawn maintenance/care and/or snow removal services. The Client desires to retain the services of Sharper Edge to render the services described on the attached estimate (“Client’s Estimate”) (“Services”). The Parties agree to be bound by this Agreement according to these terms and conditions.

In consideration of the Parties’ mutual covenants and promises, the Parties covenant and agree as follows:

1. The Property. Sharper Edge shall perform Services at the address listed on the Client’s Estimate (the “Property”). Client warrants and represents that it either owns the Property or holds authority to engage Sharper Edge to complete Services at the Property.
2. Services. Sharper Edge agrees that it shall perform the Services. In the event Client changes the scope of the Services after executing this Agreement, the changes shall be recorded in writing and the cost of the services and/or materials may change. Services shall be completed in a substantial and workmanlike manner. Any drawings and/or details are to serve as a guide and shall be followed as closely as is practical, but minor on-site adjustments may be made at Sharper Edge’s sole discretion. Any measurements stated in the Client’s Estimate are subject to a ten percent (10%) variance, without notice to Client.
3. Concealed Contingencies. Client’s Estimate is subject to extra charges for concealed contingencies, including, without limitation, rock, debris, for drainage situations, and poor soil conditions, which were not readily apparent in estimating the Services. The Property shall be received by Sharper Edge at a finished grade, properly drain, and in a clean, workable condition unless otherwise stated in the Client’s Estimate.   The Client’s Estimate does not include additional fill from off-site as may be necessary to establish the proper grade unless otherwise stipulated therein. All soil will be used on-site, unless otherwise stated.
4. Timing. Sharper Edge will take all reasonable measures to complete the Services based on the timeline provided; however,  Sharper Edge shall not be liable for any delay beyond its reasonable control or caused by accident, bad weather, embargo, act of Client or third parties, labor disputes, transportation shortages, national emergency, pandemic, riots, non-delivery of suppliers, delays of carriers or delivery agents, inability to obtain labor, materials or manufacturing facilities, acts of God or government restrictions, prohibitions or requirements.  In the event of any such delay, Sharper Edge’s time period for delivery or performance shall be extended accordingly.  REGARDLESS OF THE CAUSE, SHARPER EDGE SHALL HAVE NO LIABILITY FOR PENALTIES OF ANY NATURE AS A RESULT OF A DELAY.  Time is not of the essence with respect to Sharper Edge’s performance hereunder.
5. Compensation. Upon execution of this Agreement, Client shall pay Sharper Edge fifty percent (50%) of the amount listed on the Client’s Estimate and the remaining fifty percent (50%), plus any change orders, immediately upon completion of the Services. Sharper Edge shall have the option, at its sole discretion to charge a transaction fee for any payment (partial or whole) made with a credit card. Further, fuel surcharges may be assessed on any Client Estimate/Proposal for Services.  Any payment not received within ten (10) days of the completion of Services, including payment for changes to the Work, will incur interest at a rate of one and one half percent (1.5%) per month, or eighteen percent (18%) per annum.
6. Client Responsibilities. The Client shall be responsible for providing the following prior to commencement of work to ensure the Services are sufficiently preformed, and Sharper Edge may rely on the accuracy and completeness of all such information and shall not be liable for damages or costs resulting from any errors or omission in that regard:
   1. Accurately apprise Sharper Edge as to the property lines of the Property; and
   2. Accurately apprise Sharper Edge as to any subsurface utility and service lines including (but not limited to) electrical, telephone, pet fencing, irrigation pipelines and gas lines.
7. Sharper Edge Responsibilities. In performing the Services, Sharper Edge shall be responsible for:
   1. Obtaining any permits required to perform the Services;
   2. Procurement, at Client’s expense, of the materials to be purchased to perform the Services;
   3. Cleaning of the Property and removal of all debris after performing the Services; and
   4. Carrying liability insurance in a minimum amount of Five Hundred Thousand and 00/100 Dollars ($500,000.00) per occurrence for bodily injury, death and property damage.
8. Changes in the Services. Changes in the Services must be requested by Client in writing. The price for a change must also be agreed upon in writing by the Parties. Payment for changes in the Services will be made in accordance with Section 5 above.
9. Concealed Physical Conditions. If subsurface or otherwise concealed physical conditions at the Property differ materially from those indicated by Client or from those ordinarily found to exist in the vicinity of the Property, including subsurface utilities, boulders, tree stumps, or construction debris, then the Estimate will be adjusted to account for any changes required to complete the Services, or any change in materials or method of work required to complete the Services.
10. Warranties. Sharper Edge warrants the Services against defects in workmanship and materials for a period of one (1) year for all Hardscape installations (“Warranty Period”). The Warranty Period takes effect from the date Sharper Edge submits the invoice to Client for final payment, provided Client has paid in full for all Services performed under this Agreement. This warranty does not apply if (i) the property is transferred during the Warranty Period; (ii) Client is in default of this Agreement; (iii) due to the effects of normal corrosion, erosion, or wear and tear, or (iv) against damage or deficiencies caused by the faulty operations or maintenance of Client. NO WARRANTY IS PROVIDED BY SHARPER EDGE FOR ANY SOD/SEED, PLANTS, TREES, OTHER PLANT MATERIAL, LAWN MAINTENANCE, LANDSCAPING MAINTENANCE OR SNOW REMOVAL Upon Client providing Sharper Edge with written notice of a proper warranty claim under this Agreement, Sharper Edge will have thirty (30) days to respond to the warranty, or such other reasonable period of time as is required in the circumstances. Notwithstanding the foregoing, Sharper Edge shall not be liable to Client or anyone claiming by, through or under Client for any error of judgment or mistake of law or for any loss, except a loss resulting from willful malfeasance, bad faith or gross negligence on the part of Sharper Edge. SHARPER EDGE MAKES NO ADDITIONAL WARRANTIES WITH RESPECT TO THE PRODUCTS OR SERVICES SOLD HEREUNDER. ANY IMPLIED WARRANTY OF MERCHANTABILITY, AND ANY IMPLIED WARRANTY THAT THE GOODS OR SERVICES ARE FIT FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED.
    1. Dry Stack Rockwork: Dry stack rockwork will, over time, require routine maintenance by the Client, due to frost and thaw heaves. Changing grades by others can cause failure due to water flow changes. Sharper Edge will ensure proper drainage and a stable wall upon completion. Any change in grade forfeits Sharper Edge’s liability
    2. Concrete Pavers: Work is only guaranteed from settling if Sharper Edge installs the recommended base, according to the manufacturer’s Sharper Edge makes no guaranty or warranty on the color of the concrete pavers. Colors appear brighter in brochures and colors will fade over time.
    3. Interlocking Retaining Wall: Work is only guaranteed if Sharper Edge installs the retaining wall according to the engineer’s or manufacturer’s specifications. If an engineered wall is necessary, it is the responsibility of the Client to have it engineered. Sharper Edge makes no warranty or guarantee on the color of the retaining wall blocks. Colors appear brighter in brochures and colors will fade over time.
11. Exclusive Remedy. Client’s sole and exclusive remedy for breach of any warranty hereunder shall be the repair or replacement of any defective goods or Services by Sharper Edge. Sharper Edge shall have no liability under any warranty unless Client, at its expense, provides Sharper Edge a clear written statement describing the alleged defect within the Warranty Period.
12. Termination and Suspension. Sharper Edge shall have the right to suspend or cancel the Client’s Estimate and/or Services (or any portion thereof) immediately for cause if:  (a) Client becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for the benefit of its creditors or files for protection from creditors under any bankruptcy or insolvency laws; (b) there is an excusable delay lasting longer than one hundred twenty (120) days; (c) any representation or warranty made by Client herein or in any document or certificate furnished by Client in connection herewith proves to be incorrect in any material respect; or (d) Client materially fails to comply with any terms herein, including, but not limited to, failure to make any payment when due or to fulfill any payment conditions.  If this Client’s Estimate and/or Services (or any portion thereof) are cancelled for any reason, Client shall pay Sharper Edge for all materials provided or ordered on behalf of Client, and Services performed before the effective date of termination.  Client shall pay any reasonable expenses incurred by Sharper Edge in connection with a cancellation, including expenses for repossession, fee collection, demobilization/remobilization or costs of storage upon submission of Sharper Edge’s invoice(s).
13. Limitation of Liability. Notwithstanding any other provision, the total liability, in the aggregate, of Sharper Edge and Sharper Edge’s officers, directors, employees, and agents to Client for any and all claims, losses, costs or damages whatsoever arising out of, resulting from or in any way related to the goods or services provided by Sharper Edge shall not exceed the amounts actually received by Sharper Edge from Client. Notwithstanding any other provision, Sharper Edge and Sharper Edge’s officers, directors, employees, and agents shall not be liable to Client for any special, incidental, indirect or consequential damages whatsoever. Client hereby grants Sharper Edge permission to use Client’s driveway for access and material storage, and Client shall hold Sharper Edge harmless from any damage caused as a result.
14. Promotion. The Client hereby authorizes Sharper Edge to take photographs of the Property for the use of promoting Sharper Edge and its services at Sharper Edge’s discretion and grants Sharper Edge the sole right and title to any such photographs.
15. Indemnification. Client agrees to indemnify, defend, and protect Sharper Edge from and against all lawsuits and costs of every kind pertaining to the Services, any false or misleading information delivered by the Client pertaining to the Property, or Client’s failure to deliver relevant information to Sharper Edge.
16. No Modification Unless In Writing. No modification of this Agreement shall be valid unless in writing and agreed upon by the Parties.
17. Copyright. All right, title and interest in the drawings and specifications for the Services shall belong to Sharper Edge. Client may retain copies of the drawings and specifications for information and reference provided Sharper Edge has been paid in full for services rendered under this Agreement.
18. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin and shall be subject to the exclusive jurisdiction and venue of the courts of Brown County, Wisconsin.
19. Waiver. The failure of either party to insist on strict performance of this Agreement by the other, according to the terms and understanding herein, shall not be construed as a waiver of the right to insist on such performance and no waiver by either party of any breach by the other of any provisions shall be deemed a waiver of any other prior or subsequent breach.
20. Severability. Each provision of this Agreement shall be considered severable, and if for any reason any provision or provisions of this Agreement are determined to be invalid and contrary to any existing or future law, the invalidity shall not affect or impair the operation of those portions of this Agreement that are valid, or the application of such provisions in situations in which they are not invalid.
21. Entire Agreement; Binding Effect. This Agreement is the entire agreement between the parties with respect to the transaction contemplated herein and supersedes all previous written or oral negotiations, commitments and writings. No promises, agreements, representations or warranties with respect to said transaction have been made by any of the parties except as set forth herein. This Agreement shall bind and benefit the parties and their respective personal and legal representatives, heirs, successors and permitted assigns.
22. Lien Notice and Acknowledgment. AS REQUIRED BY THE WISCONSIN CONSTRUCTION LIEN LAW, THE SHARPER EDGE, INC. HEREBY NOTIFIES CLIENT THAT PERSONS OR COMPANIES FURNISHING LABOR OR MATERIALS FOR CONSTRUCTION ON CLIENT’S LAND MAY HAVE LIEN RIGHTS ON CLIENT’S LAND AND BUILDINGS IF NOT PAID. THOSE ENTITLED TO LIEN RIGHTS, IN ADDITION TO THE SHARPER EDGE, INC., ARE THOSE WHO CONTRACT DIRECTLY WITH CLIENT OR THOSE WHO GIVE CLIENT NOTICE WITHIN SIXTY (60) DAYS AFTER THEY FIRST FURNISH LABOR OR MATERIALS FOR CONSTRUCTION. THE SHARPER EDGE, INC. AGREES TO COOPERATE WITH CLIENT TO SEE THAT ALL POTENTIAL LIEN CLAIMANTS ARE DULY PAID.