BROWN’S PROPERTY SERVICES, LLC
STANDARD TERMS & CONDITIONS
The following Terms and Conditions (“Terms”) will govern all transactions with Brown’s Property Services, LLC (“BPS”) unless expressly agreed by the parties in writing. These Terms are incorporated by reference into all of BPS’s written or electronic estimates, quotes, and orders for the purchase of goods and services (collectively, “Work Order(s)”) as if expressly set forth therein, and, unless otherwise provided herein, any written agreement to a Work Order, or any other commencement of performance that constitutes acceptance thereof by any customer or purchaser (“Customer”). Work Orders constitute offers by BPS and once accepted by a Customer these Terms are incorporated into all agreements between BPS and the Customer (“Project”). Acceptance is limited to these Terms and BPS hereby objects to any terms or conditions varying the terms hereof in any written acknowledgement or form provided by Seller; such terms shall be of no force and effect.
1. GENERAL – BPS will provide a Work Order for each Project fully describing the work BPS is expected to perform, and the amount Customer is expected to pay. If the Project is a consumer transactions as defined by the Ohio Revised Code, then Customer is entitled to an itemized list of services rendered, including a list of parts or materials and a statement of whether they are used, remanufactured, or rebuilt, if not new, and the cost thereof to Customer, the amount charged for labor, and the identity of the individual performing the repair or service. BPS makes all reasonable efforts to fully comply with all applicable federal, state, and municipal laws and regulations.
2. TIMING – By executing a Work Order, Customer acknowledges and accepts the Project timeline as provided by BPS in the Work Order. BPS is not responsible for any Project delays to the extent caused by material delays or workforce shortages.
3. CHANGE ORDERS – All material changes to the Project must be in writing and signed by both parties (“Change Orders”). Either party may request a Change Order at any time, however, the other party is not obligated to consent to any Change Order. If any person or persons acting on Customer’s behalf improperly enters the Project site resulting in additional costs, such costs shall be allocated to the Customer, without a Change Order.
4. PAYMENT – BPS shall set forth the payment schedule in the Work Order. If the Work Order does not set forth a payment schedule, payment shall be as follows:
50% due immediately upon execution of the Work Order.
Remainder due immediately upon Project completion.
Late payments shall accrue interest at a rate of 1.5% per month. Customer acknowledges and agrees that failure to make timely payment will result in an immediate suspension of work and that BPS may, in its sole discretion, record a lien on the Project or subject property, take possession of any uninstalled materials, equipment, or tools, and initiate a replevin action (if necessary).
5. TAXES – Customer shall be charged a sales tax in accordance with the laws of the state of Ohio. Services subject to Ohio’s sales tax may change from time to time. Examples of services that may be subject to Ohio’s sales tax are mowing, mulching, pruning, lawn treatments, landscape bed wall installation, tree removal, site restoration, finish grading, and lawn installation. Examples of services that may not be subject to Ohio’s sales tax are construction of retaining walls, hardscape flat work, excavation, and drainage.
6. SUBCONTRACTORS – Customer acknowledges that BPS may utilize subcontractors to perform portions of the Project. BPS shall be responsible for all work on the Project performed directly by BPS or its subcontractors
7. TERMINATION – Either party may terminate a Project without cause by providing written notice of the termination at least 10 days in advance of the termination date (“Termination”). In the event of a Termination, both parties will cooperate to mitigate any damages. Customer shall be responsible for all costs of services rendered up to Termination including but not limited to materials ordered. If Customer terminates a Project, Customer will be responsible for all demobilization costs plus a Termination fee, calculated at 10% of the total Project value.
8. ACCEPTANCE – Customer shall be deemed to have fully accepted BPS’s work by providing full payment. Customer is responsible to monitor the Project daily and immediately identify, in writing, any alleged damage to the property or deficiencies in the work performed by BPS. Customer shall be deemed to have accepted work done on the Project if Customer fails to deliver a written notice of alleged damages or deficiencies to BPS by the end of the business day after the alleged damage was caused or work was deficiently performed. Failure to timely notify BPS of the alleged deficient work may prevent BPS from correcting such deficiencies without incurring additional costs. Customer will be responsible for all additional costs caused by the failure to timely notify BPS of any alleged damages or deficient work.
9. DISCLAIMER OF WARRANTIES – BPS disclaims all express or implied warranties not explicitly set forth herein. BPS is discharged of all obligations to work on or provide materials to the Project upon acceptance by Customer. BPS is committed to performing to Customer’s satisfaction, but upon acceptance, BPS does not provide any warranty, including against nature such as the elements, erosion, drought, freeze/thaw, cracks, warps or settling. Individual product warranties will be honored by manufacturer only, if any.
NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE GOODS AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED ARE MADE WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. BPS DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PROJECT IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE PROJECT WILL BE UNINTERRUPTED OR ERROR FREE. BPS EXPRESSLY DISCLAIMS ANY WARRANTIES NOT STATED HEREIN.
10. LIMITED LIABILITY AND POTENTIAL DAMAGES – NO LIABILITY FOR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BPS BE LIABLE OR OTHERWISE RESPONSIBLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOST BUSINESS INFORMATION, OR ANY OTHER DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROJECT AS INTENDED, EVEN IF BPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE TOTAL, CUMULATIVE, AGGREGATE LIABILITY OF BPS, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, MISREPRESENTATION, EQUITY OR OTHERWISE, EXCEED THE FEES PAID FOR THE PROJECT THAT IS THE SUBJECT OF SUCH CLAIM.
11. INDEMNIFICATION – To the fullest extent permitted by law, you will indemnify and hold harmless BPS, its officers, directors, owners, representatives, agents, and employees (“Indemnified Parties”) from and against any and all claims, suits, liens, judgments, damages, losses and expenses, including legal fees and all court costs and liability (including statutory liability) arising in whole or in part and in any manner from injury and/or death of person or damage to or loss of any property resulting from the acts or omissions of the Indemnified Parties relating to the Project. Customer will bear the costs of defending any actions or proceedings brought against the Indemnified Parties arising in whole or in part out of any such acts or omissions. The foregoing indemnity shall not be limited in any way by an amount or type of damage, compensation, or benefit act. Customer hereby expressly permits BPS to pursue and assert claims against Customer for indemnity, contribution and common law negligence arising out of claims for damages for bodily injury, property damage, death and personal injury relating to the Project.
12. FORCE MAJEURE – BPS shall be excused for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of governments, natural catastrophes, acts of Customer, interruptions of transportation or inability to obtain necessary labor or materials. The Project schedule shall be extended by a period of time equal to the time lost because of any excusable delay. In the event BPS is unable to perform in whole or in part because of any excusable failure to perform, BPS may cancel the Project without liability to Customer.
13. GOVERNING LAW AND VENUE – These Terms and any applicable Project shall be governed by and construed in accordance with the laws of the State of Ohio without regard to principles of conflicts of laws. The proper venue for any court action arising from the Project shall exclusively be the courts having jurisdiction in Licking County, Ohio or the county where the Project occurs.
14. NON-WAIVER – BPS’s right to require strict observance or performance of each of the terms and provisions hereof shall be affected by neither concurrent waiver of any other term or provision nor by any previous waiver or forbearance of course of dealing.
15. SEVERABILITY – If any provision of these Terms or any Project are deemed invalid or unenforceable, the remaining provisions shall be construed as though such provision does not appear herein and shall be otherwise fully enforceable.
16. MODIFICATIONS – BPS reserves the right to modify these Terms with or without prior notice to Customer.