ROSEHILL GARDENS, INC. (“Rosehill”) and the customer (“Customer”) identified in the accompanying Proposal agree:
1. Acceptance of Proposal. Upon Customer’s written acceptance of the Proposal from Rosehill, the Proposal shall constitute a binding contact between Rosehill and the Customer which shall be governed by the terms set forth herein, amounts set forth in the Proposal.
2. Express limited Warranty: Limitation on Liability: Rosehill provides the following limited warranty on landscape labor and materials.
(a.) All plant materials are true to name, accurately graded, and in a healthy growing condition when they leave the nursery. Rosehill will replace once, at no charge, any plants installed by Rosehill that fail to grow for a period of two years after the date of planting (one year after purchase date for plants purchased from, but not installed by Rosehill, and for hardscape materials) provided the plants and hardscape materials have had adequate care and have not been damaged. Rosehill is not obligated to replace plants or hardscape materials and does not make any warranty with respect to plants or hardscape materials damaged due to abnormal weather conditions (e. g., extreme winter or summer temperature, flood, tornado) fire, vandalism, theft, animals, lack of or excess moisture, or other factors beyond our control. The following are excluded from the above warranty; Annuals, vegetables, roses and plants in planter boxes, pots and barrels, any plants, shrubs, or trees which have not been given reasonable and proper care, or any instance in which a product has been improperly used on the plants; plant material on site transplanted by Rosehill; any discounted sales, cash & carry items purchased through Rosehill’s Garden Center.
(b.) Customer agrees that Rosehill shall not: (i) be liable for losses or damages (including defects in labor, workmanship or materials) caused by persons or entities who are not controlled by or under contract with Rosehill: (ii) liable for losses or damages caused by, resulting from, contributed to or aggravated by earth movement, landslide, mudflow, earth sinking, earth rising, earth shifting or subsidence of land; (iii) be liable for damages, losses or extra expense due to underground foreign material such as construction debris, rock, heavily compacted sub-soil, tree stumps, roots, utilities and sprinkler systems and/or any other unforeseen obstructions (an additional charge for removal or special handling will be necessary); and (iv) pay to repair any underground obstructions unless Rosehill has prior knowledge of these obstacles.
(c.) This warranty shall be void if any invoice or statement has not been paid in accordance with the Payment Terms set forth below.
(d.) ROSEHILL MAKES NO WARRANTIES OTHER THAN THE EXPRESS LIMITED WARRANTY SPECIFICALLY SET FORTH ABOVE. ROSEHILL DISCLAIMS, AND CUSTOMER HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, THAT ARE NOT EXPRESSLY SET FORTH OR REFERENCED IN THIS CONTRACT INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY. THE SPECIFIC LIMITED WARRANTY SET FORTH IN THIS CONTRACT DOES NOT COVER PERSONAL INJURY, DAMAGE TO PERSONAL PROPERTY OR CONSEQUENTIAL DAMAGES (UNLESS OTHER REQUIRED BY STATE LAW). THE FOREGOING WAIVER, DISCLAIMER AND LIMITATION OF REMEDY SHALL NOT APPLY TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IF AND TO THE EXTENT SUCH WARRANTIES ARE IMPLIED BY LAW IN THIS TRANSACTION, OR THEIR DISCLAIMER IS PROHIBITED BY LAW. THE WARRANTY MADE HEREIN IS MADE SOLELY TO CUSTOMER AND IS NOT TRANSFERABLE TO A SUBSEQUENT OWNER OR OCCUPANT OF THE PROPERTY WHERE THE WORK IS PROVIDED, OR TO ANY OTHER PERSON OR ENTITY.
(e.) The success or failure of plants depends on their care, good soil, sufficient water and adequate drainage. These are necessary for plants to live and thrive, and are required in order for Rosehill’s warranty to be valid.
3. Payment Terms. Payment is due from the Customer at the time of completion of the work. If payment is not received within 30 days after completion of the work, a finance charge shall be added to the balance computed on the principal balance at the rate of 1.5/% per month. In the event said finance charge exceeds the maximum amount recoverable by applicable law, then the finance charge shall be limited to the maximum amount recoverable by law.
4. Change Orders. No verbal change order request shall be binding upon Rosehill, unless Rosehill performs the work, in which case the Change Order will be binding on Customer and Rosehill.
5. Remedies. If Rosehill engages an attorney to enforce or defend its rights then, in addition to all other sums due from Customer. Rosehill shall be entitled to recover the costs of such enforcement including, without limitation, reasonable attorney’s fees and expenses, title work and court costs.
(a.) This contract and the proposal terms set forth above constitutes the entire agreement between Rosehill and the Customer. Except as set forth above with respect to Change Orders, no term or provision of this contract maybe waived or modified by either party unless the waiver or modification is in writing and signed by the party against whom the waiver or modification is sought to be enforced.
(b) This contract and the proposal terms set forth above constitutes the entire agreement between Rosehill and the Customer. Except as set forth above with respect to Change Orders, no term or provisions of this contract may be waived or modified by either party unless the waiver or modification is in writing and signed by the party against whom the waiver or modification is sought to be enforced.
NOTICE TO OWNER
Failure of this Contractor to pay those persons supplying material or services to complete this contract can result in the filing of a mechanics lien on the property which is the subject of this contract pursuant to Chapter 429 R. S. Mo. To avoid this result, you may ask this Contractor for “lien waivers” from all persons supplying material or services for the work described in this contract. Failure to secure lien waivers may result in your paying for labor and materials twice.