Evergreen Contract

Request Free Estimate Contact Us

Root Tree Service Evergreen Contract

Services. Service Provider shall provide to Customer the plant health care services (the “Services”) set forth in executed workorder. Service Provider shall provide the Services in accordance with the terms and subject to the conditions set forth in this Agreement.
Fees and Expenses. For the Services to be performed hereunder, Customer shall pay to Service Provider the fixed seasonal fees set forth in Service Provider’s then-current standard published fee schedule (the “Fees”) on a seasonal basis within 15 days of the date of Service Provider’s invoice. Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 3% per month or the highest rate permissible under applicable law. Customer shall also reimburse Service Provider for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Service Provider does not waive by the exercise of any rights hereunder), Service Provider shall be entitled to suspend the provision of any Services if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for 15 days following written notice thereof.
Referral Discount. If Customer refers another person to Service Provider, and as a result of such referral, Service Provider enters into a contract to provide plant health care services to such person, Customer shall receive a one-time discount of $50.00 off the Fees.
Term. This Agreement shall commence as of the Effective Date and shall continue thereafter for a period of one year unless sooner terminated pursuant to Section 6 (the “Initial Term”).
Automatic Renewal. UPON EXPIRATION OF THE INITIAL TERM, THIS AGREEMENT SHALL AUTOMATICALLY RENEW FOR ADDITIONAL SUCCESSIVE ONE-YEAR TERMS UNLESS EITHER PARTY PROVIDES WRITTEN NOTICE OF NONRENEWAL AT LEAST 60 DAYS PRIOR TO THE END OF THE THEN-CURRENT TERM (EACH A “RENEWAL TERM” AND TOGETHER WITH THE INITIAL TERM, THE “TERM”), OR UNLESS SOONER TERMINATED AS PROVIDED IN SECTION 6. IF THE TERM IS RENEWED FOR ANY RENEWAL TERMS PURSUANT TO THIS SECTION, THE TERMS AND CONDITIONS OF THIS AGREEMENT DURING EACH SUCH RENEWAL TERM SHALL BE THE SAME AS THE TERMS AND CONDITIONS IN EFFECT IMMEDIATELY PRIOR TO SUCH RENEWAL; PROVIDED, HOWEVER, THAT THE FEES FOR EACH RENEWAL TERM WILL AUTOMATICALLY INCREASE BY 5% PER SEASON. SERVICE PROVIDER SHALL PROVIDE CUSTOMER WITH NOTICE OF SUCH CHANGE, OR ANY OTHER MATERIAL CHANGE, IN ACCORDANCE WITH SECTION 12. IF EITHER PARTY PROVIDES TIMELY NOTICE OF ITS INTENT NOT TO RENEW THIS AGREEMENT, THEN, UNLESS OTHERWISE SOONER TERMINATED IN ACCORDANCE WITH ITS TERMS, THIS AGREEMENT SHALL TERMINATE ON THE EXPIRATION OF THE THEN-CURRENT TERM.
Termination. Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Notwithstanding anything to the contrary in this Section, Service Provider may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder and such failure continues for 15 days after Service Provider’s written notice to Customer of nonpayment.
Independent Contractor. The details of the method and manner for performance of the Services by Service Provider shall be under its own control, Customer being interested only in the results thereof. Service Provider shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Service Provider is for all purposes hereunder an independent contractor and in no event will Service Provider be considered an agent or employee of Customer or any of its subsidiaries or affiliates for any purpose.
Pesticide Application. Service Provider shall perform all pesticide applications in accordance with regulations under the supervision of qualified personnel. Plant health care programs are designed to manage pests and diseases to tolerable levels and not necessarily eradication. Service Provider is not liable for damage to any unknown and or unmarked subterranean utilities and or irrigation unless the location has been indicated prior to the commencement of work. In addition to, and without limiting the provisions of Section 21, Service Provider shall not be liable for cancellation or delays related to weather, events, or causes beyond our control. Customer represents and warrants that all trees and shrubs on the property described in Exhibit A are either owned by Customer or permission has been obtained prior to work being performed.
No Warranty. SERVICE PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER IN THE SEASON PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Further Assurances. Each of the parties hereto shall, from time to time at the request of the other party, without any additional consideration, furnish the other party such further information or assurances, execute and deliver such additional documents, instruments, and conveyances, and take such other actions and do such other things, as may be reasonably necessary or appropriate to carry out the provisions of this Agreement and give effect to the transactions contemplated hereby.
Notice. Each party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested and postage prepaid, by email, or by recognized overnight courier service, and addressed to the other party at the addresses set forth above (or to such other address that the receiving party may designate from time to time in accordance with this Section).
Governing Law. This Agreement and all matters arising out of or relating to this Agreement, including tort and statutory claims are governed by, and construed in accordance with, the laws of Colorado, without giving effect to any conflict of laws provisions thereof. Either party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in Arapahoe County, Colorado. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE AFOREMENTIONED COURTS; AND (B) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT; AND (C) WAIVES ANY RIGHT TO TRIAL BY JURY.
Entire Agreement; Severability. This Agreement, including the exhibits attached hereto, contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction.
Amendment; Waivers. The parties may not amend this Agreement except by written instrument signed by the parties. No waiver of any right, remedy, power, or privilege under this Agreement (“Rights”) is effective unless contained in a writing signed by the party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right.
Cumulative Remedies. The Rights under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise.
Assignment; Successors and Assigns. Neither party may directly or indirectly assign, transfer, or delegate any of or all of its rights or obligations under this Agreement, voluntarily or involuntarily, including by change of control, merger (whether or not such party is the surviving entity), operation of law, or any other manner, without the prior written consent of the other party. Any purported assignment or delegation in violation of this Section shall be null and void. Service Provider, however, may subcontract the Services. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Except for the parties, their successors and permitted assigns, there are no third party beneficiaries under this Agreement.
Survival. Sections 9, 10, and 17 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive the expiration or termination of this Agreement, will survive such expiration or termination for the period specified therein, or if nothing is specified for a period of 12 months after such expiration or termination.
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same Agreement. Counterpart signature pages to this Agreement transmitted electronically in “portable document format” (“.pdf”) form, or by any other electronic means, will have the same effect as physical delivery of the paper document bearing an original signature. A signed copy of this Agreement delivered by email or other means of electronic transmission (including via DocuSign) shall be deemed to have the same legal effect as delivery of an original signed copy of this Amendment.
Force Majeure. Service Provider shall not be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond Service Provider’s reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) inclement weather; (c) epidemics or pandemics; (d) government order, law, or actions; (e) national or regional emergency; (f) strikes, labor stoppages or slowdowns, or other industrial disturbances; (g) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (h) embargoes or blockades in effect on or after the date of this Agreement; and (i) other events beyond the reasonable control of Service Provider. Service Provider shall give notice within 30 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. Service Provider shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. Service Provider shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that Service Provider’s failure or delay remains uncured for a period of 30 days following written notice given by it under this Section, either party may thereafter terminate this Agreement upon 15 days’ written notice.