1. Engagement; Scope of Services. a. Material. The Owner has selected the material to be utilized by Contractor for the installation of the pavers. The Owner has diligently examined different manufactures and distributors of the material that will be utilized for the pavers and has selected the following for the ground cover and wall-Failure to comply with the foregoing may delay the Contractor from commencing its responsibility to excavate and/or install a base for the product to be installed. b. Permits. Most Municipalities require a permit for the contemplated work. The cost of applying for the permit will be the Owner’s responsibility and shall be paid by the fifth day following the execution of this agreement by all parties. c. Mark-outs. As a requirement of excavation, the Contractor will contact the appropriate authorities to have a mark-out made of any underground utilities that may service your property. If the mark-out indicates an underground utility in the area where the pavers and/or wall will be installed, an appropriate change order will be required inasmuch as, the underground utility service may require additional labor for excavation since the Contractor may not be able utilize heavy equipment and/or a change in the layout if the utilities prohibit the installation. d. Impervious Surface Limitations. Your Municipality may have an ordinance restricting the amount of impervious surface permitted. The Owner shall confirm that the percentage of ground cover (impervious surface) that may be added under this agreement does not exceed the maximum percentage of impervious surface. e. Retaining Walls. Your Municipality and/or the building code for the State of New Jersey may require the services of a professional engineer in order to approve the design and/or height of any retaining wall. Owner agrees to obtain any approvals as to the design and height for a retaining wall prior to the commencement date of this Agreement. f. Survey. If the Municipality and/or Contractor shall require a survey prior to or after completion of the work performed by the Contractor, Owner agrees to assume this responsibility.

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2. Time of Performance. The Contractor reserves the right to commence the work up to ten (10) days after the specified date once the material is timely supplied. The estimated date for the completion of this project is specified on the contract.\

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3. Fees. In consideration of the performance of the Contractor’s services, Owner shall pay to Contractor specified on contract. The remaining ten percent (10%) shall be paid after receipt of any approvals by the Municipality (if required) and if not required, shall be paid within ten (10) business days after Owner gets notice of completion of the project and the amount due is specified on contract.

 

4. Term of Proposal/Agreement. This proposal shall remain valid for five (5) business days after being presented to the Owner and shall expire if not countersigned by both parties and the deposit paid within said time. 5. Independent Contractor. Contractor is an independent contractor and is not and shall not be deemed to be an employee or agent of Owner. No party shall be responsible for the acts or omissions of any other parties hereto nor the acts or omissions of the employees, if applicable, of the other parties hereto. No party shall have the authority to speak for, represent or obligate any of the other parties hereto in any way without the express prior written consent of such party. It is understood and agreed that Contractor will engage one or more subcontractors to perform the Services under its management and supervision.

 

5. Authority. Each party represents to the other parties that it has the power and authority to enter into this Agreement and that it is not a party to any restrictions, agreements or understandings whatsoever which would prevent or make unlawful such party’s acceptance of the terms set forth in this Agreement or such party’s performance hereunder. Owner represents and warrants that it is authorized to contract for the Services. Each party further represents that its acceptance of the terms of this Agreement and the performance of its obligations hereunder do not and will not (with the passage of time) conflict with or constitute a breach or default of any contract, agreement or understanding, oral or written, to which such party is a party or by which such party is bound.

 

6. Insurance. Contractor shall cause any contractors performing any of the Services hereunder to procure, carry and maintain comprehensive general liability insurance as well as motor vehicle liability insurance on all vehicles performing the Services.

 

7. Limitations and Indemnity by Owner. Contractor shall not be responsible for damage to existing trees of other landscaping that has roots under the area that Contractor will be excavating. Contractor assumes no responsibility for vehicles parked in close proximity to the area in which the Contractor is working. Owner shall indemnify and hold harmless Contractor and its officers, shareholders, employees and agents, from any and all damages, claims, lawsuits, demands and other actions related to the foregoing or stemming from any breach by Owners as to any terms of this Agreement.

 

8. Indemnity by Contractor. Except as provided herein, Contractor shall indemnify and hold harmless Owner, and its officers, shareholders, employees and agents, from any and all damages, claims, lawsuits, demands and other actions resulting out of the negligence of Contractor in the performance of the Services and from Contractor’s breach of any of the terms of this Agreement provided Contractor is more than eighty percent (80%) responsible for the condition creating the liability.

 

9. Default. In the event Contractor is in default of any obligation hereunder and such breach or default has not been cured within thirty (30) days after receipt of written notice of such default by Contractor (or such additional cure period as the non-defaulting party may approve), this Agreement may be terminated by Owner as its sole and exclusive remedy.

 

10. Governing Law; Jurisdiction. This Agreement shall be governed and construed by the laws of the State of New Jersey. Each party hereby irrevocably submits to the exclusive subject matter and in personam jurisdiction of the applicable New Jersey state courts for the purposes of interpreting the provisions of this Agreement or resolving any dispute arising from the terms, or alleged breach of, this Agreement. If the Contractor is required to engage in collection activity or is required to defended any action relating to this Agreement, then if successful, Owner shall reimburse and indemnify Contractor for all attorney’s fees, costs of suit and reasonable expenses, inclusive of third party judgments.

 

11. Agency. If the entity or individual signing this Agreement is not the “Owner” of the property that will be maintained under this Agreement, then the individual executing this agreement warrants that they have the authority and executes same in his/her individual capacity and for the entity they represent.

 

12. Water & Electrical Power. Owner shall be responsible for providing Contractor with water and sufficient external electrical power so as to enable Contractor to utilize power equipment in the performance of this Contract.

 

13. Duty. The Owner is fully responsible for promptly and timely notifying the Contractor of any condition that warrants the Contractor’s immediate attention. The Owner agrees to promptly execute any change orders that may be required. Furthermore, the Owner acknowledges no additional work will be performed unless a signed change order has been executed by all parties. In the event that the Owner is not available to execute a change order, Owner irrevocably appoints a spouse as their Power of Attorney authorized to execute and/or negotiate the terms of any charge order in the Owner’s absence. If the Owner or his/her POA fails to timely execute and change order than the Contractor may terminate its obligations under this contract and Ownershall be responsible to pay for liquidated damages based upon thirty percent (30%) of the unpaid balance.

 

14. Entire Agreement. This Agreement, in addition to the General Terms attached hereto constitutes the entire agreement of the parties pertaining to the subject matter hereof and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. Any and all other written or oral agreements existing between the parties hereto regarding such transactions are expressly canceled. In the event of any conflict between this Agreement and any attachment hereto, the terms of this Agreement shall govern.

 

15. Amendment. This Agreement shall not be modified or amended except by a further written document signed by all the parties.

 

16. Waiver. No provisions hereof may be waived except by an agreement in writing signed by the parties. A waiver of any term or provision hereof shall not be construed as a waiver of any other term or provision hereof.

 

17. Binding Effect. This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors, heirs and permitted assigns.

 

18. Assignment. This Agreement is a personal service contract and may not be assigned by any party without the prior written consent of the other party. Notwithstanding the foregoing, Contractormay engage subcontractors to perform all or any part of the Services so long as Contractor oversees the performance of such Services.

 

19. Notice. Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes when presented personally to such party or sent by certified mail, return receipt requested, or sent by a nationally recognized overnight delivery service, to such party at its address set forth above.

 

20. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining provisions (including any remaining provisions within the same numbered paragraph), unless the absence of such invalid or unenforceable provision materially and adversely affects the right or obligations of either party hereto.

 

21. Change Orders. Frequently, the work that is to be performed and/or the materials require a modification due to the unavailability of material, municipal ordinances or underground utilities or easements. When a change in the scope of the work, the material required and/or delays requiring a change in the completion date, the Contractor shall provide written notice to the Owner. The Owner shall acknowledge receipt of the change order with one (1) business day after receipt. If not acknowledged by the third (3) business day after receipt, the Owner irrevocably consents to the Contractor executing the change order by a limited Power of Attorney provided the overall cost for the project does not increase beyond ten percent (10%) nor does the time for completion exceed the original completion date by more than thirty (30) days.

 

22. Architect/Engineer. The Owner acknowledges that the Contractor is neither an architect nor engineer. Patios and/or wall block may change how groundwater is directed or absorbed by the soil surrounding your home and/or your neighbors’ property. The Contractor cannot warrant or guarantee that the groundwater may not become a problem. The overall plans and direction of the size of any structure built by Contractor at the Owner’s direction shall be completed in a workman like fashion but without any liability related to the direction of water and/or the absorption of water which may result in ponding, entering into basements or areas where water may freeze creating a slippery surface during the winter months. The Owner assumes all responsibility for any of these conditions and if concerned, shall retain the services of a licenses professional, an architect and/or engineer.

 

23. Cancellation. You may cancel this contract at any time before midnight of the Third Business Day after receiving a copy of this contract. If you wish to cancel this contract, you must either: a. Send a signed and dated written notice of cancellation by registered or certified mail, return receipt requested; or b. Personally deliver a signed and dated written notice of cancellation to: Fieldscaping, LLC 525 Lehigh Avenue Union, New Jersey 07083

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24. Owner Acknowledgement. The Owner acknowledges receiving a copy of Contractor’s Certificate of Commercial General Liability Insurance from the Contractor’s Agent/Broker. INTENDING TO BE BOUND, the parties hereto have caused this Agreement to be signed by their respective officers on the date and year first written above.

 

GENERAL TERMS.

 

1. LIMITATION OF COMPANY’S LIABILITY. If the company and/or its related parties is found to be liable for any loss or damage due to breach of contract, breach of warranty, any degree of negligence, negligent misrepresentation, strict product liability, subrogation, indemnification or contribution, or any other theory of liability arising from the design, location, positioning, coverages, type of material, material selection or recommendation, installation, repairing, servicing, in any respect at all, the maximum liability will be limited to ten percent (10%) of the Contract collectively for company and its related parties, and this liability shall be exclusive. The company will assume a greater liability, but only for an additional charge to be agreed upon by the Customer and the company. If the company does so, a proposal will be attached to this Agreement. The company and/or its related parties expressly deny all liability for any loss or damage above the limitation of liability which may occur before or after signing this agreement. This includes liability based on contract, tort, warranty (including merchantability and fitness for a particular purpose) and any other theory of liability. This limitation of liability specifically covers liability for, among other things, lost profits; lost or damaged property; loss of use of property or the premises; government fines and charges; personal injuries; crossclaims and other claims for indemnity and contribution; and the claims of third parties. Also covered by this limitation are the following types of damages: direct, indirect, special, incidental, and consequential (damages that result from an act, but do not directly relate to the act) and punitive (damages used to make an example of someone). The company’s related parties are defined in this agreement to include the company’s employees, agents, and other subcontractors. This limitation does not apply to gross negligence or intentional torts.

 

2. INSURANCE WAIVER OF SUBROGATION. The Customer understands that the company is not an insurer. The Customer is responsible for obtaining all insurance the Customer thinks is necessary, including coverage for personal injury and property damage. The payments the Customer makes under this agreement are not related to the value of the premises or the Customer’s possessions, but rather are based on the services provided and the material required. The Customer and the Customer on behalf of Customer’s insurance company releases the company and its related parties from any liability for any loss, event or condition covered by the Customer’s insurance. This is also known as, and intended to be, a waiver of subrogation provision.

 

3. LIMITED WARRANTY. (a) for 12 months from the date of this agreement any driveway or patio or walkway of pavers installed by Contractor, excluding retaining walls shall be subject to this warranty. The company warrants that if any driveway or patio or walkway actually sold and installed by company does not perform satisfactorily because of a defect or because of ordinary wear and tear, the company will repair or replace that part at no charge to the Customer, except for the material. This limited warranty does not apply if the pavers have been damaged by the Customer, accidents, misuse, vandalism, lack of proper maintenance, unauthorized changes or acts of god (such as fires, earthquakes, floods, tornadoes, etc.). (b) this limited warranty is the only warranty the company makes, is made only if the company did the entire installation and takes the place of all other warranties whether express or implied. No express or implied warranties extend beyond the face of this agreement. The company makes no implied warranty of merchantability or fitness for a particular purpose, any and all such warranties being expressly waived under this agreement. (c) the Customer understands and agrees that company will provide no limited warranty service unless the Customer first notifies the company of a problem or need of repair or service. The Customer further understands and agrees that, once notified, company will service, weather permitted, the system as soon as it reasonably can during normal business hours (8:00 a.m. to 5:00 p.m.), excluding Saturday, Sunday and holidays. Company makes no promise that there will be access to an area being repaired or in need of repair or that replacement pavers will match the color of the pavers that previously failed.

 

4. CUSTOMER ’S PROTECTION OF COMPANY. This agreement is intended only for the Customer’s benefit. Therefore, the Customer shall protect, indemnify, defend, release and hold harmless the company and its related parties from liability against all third party claims or losses (including reasonable attorneys’ fees) brought against the company which relate to the system or the services the company provides. This protection/indemnity covers claims brought against the company by the Customer’s insurance company. It also includes claims against the company and/or its related parties arising under contract, warranty, company’s or its related parties’ own negligence (of any degree), negligent misrepresentation, strict product liability, cross-claims or other claims for indemnification or contribution, or any other theory of liability.

 

5. THE CUSTOMER ’S AGREEMENTS. The Customer affirmatively warrants and represents that Customer has the authority to sign this agreement and in doing so will not violate any other agreement. The Customer agrees that the company and its related parties may record and use all communications with the Customer, or any one contacting the company in the normal course of business. It is the sole responsibility of the Customer to visually inspect the work at least weekly, and whenever changes are made at the premises, and immediately notify the company of any problem or need of any warranty service or repair. To the extent the applicable Municipality requires a construction permit or any other permit for any of the installation or other services contracted-for under this agreement, the Customer authorizes the company to apply for said permits as its agent. The company does not guaranty that the area is installed so that it will prevent personal injury, property damages, or unauthorized entrances into the premises. The Customer understands and agrees that any suppliers or subcontractor retained by company to provide any of the services under this agreement are independent contractors and independent operating companies. There is no partnership, joint venture, employer/employee, master/servant, or other similar relationship between the company and its subcontractors or suppliers. The Customer agrees to pay the company its then prevailing rates as shown on this agreement and materials for (i) any service to the system not covered by any warranty service or otherwise requested on an emergency basis; and (ii) time spent by the company waiting at the premises for the local authority having jurisdiction or applicable Municipal inspector to inspect and/or approve any installation of other services contracted for under this agreement. All of Customer’s duties and obligations under this agreement continue even if the Customer sells or leaves the premises.

 

6. THE CUSTOMER ’S DEFAULT/COMPANY’S RIGHT TO TERMINATE. If the Customer fails to perform its obligations under this agreement, the company will give the Customer written notice of default. If the Customer does not cure the default within 10 days of the date of the notice, the company can terminate this agreement and the Customer must pay the company, to the fullest extent permitted by applicable law: (a) all amounts then due; (b) the company’s reasonable collection costs, including attorney’ s fees and costs and anticipated profit. If this agreement is terminated, the company and its subcontractors do not have to provide any further service. If the company waives any default by the Customer that does not mean the company waives later defaults. Any waiver by the company must be in writing.

 

7. SYSTEM CHARGES. The Customer agrees to obtain all licenses and pay all taxes, fines and other assessments, including sales taxes. All invoices of company are due and owing within 10 days of receipt, unless otherwise stated in writing. If the Customer is more than 30 days late with payment, the company can charge the Customer interest of 1.5% per month (18% per annum), or the maximum amount permitted by applicable law.

 

8. TRANSFERS. The Customer cannot transfer or assign this agreement without the company’s consent. However, the company can transfer and/or subcontract this agreement (in whole or in part) without the Customer’s consent. If the company does so, anyone to whom the company transfers or subcontracts any of its duties or obligations will have the right to enforce, and receive the benefit of, the terms & provisions of this agreement, including, without limitation, the limitation of company’s liability, Customer ’s protection of company, and waiver of subrogation.

 

9. LIMITATION ON LAWSUITS; JURY TRIAL. The Customer must bring any lawsuit against the company within 1 year after the act, omission or event occurred upon which the lawsuit is based. If the Customer does not, the Customer has no right to sue the company and the company has no liability to the Customer for that claim. It is critical that the Customer bring any claim in a timely manner. Time is of the essence. To the full extent permitted by law, the company and the Customer both give up their right to a jury trial.

 

10. PURCHASE ORDERS/ OTHER AGREEMENTS. In the event of any conflict between this agreement and any other agreement, proposal, contract or purchase order, the terms of this agreement shall govern and control.

 

11. MISCELLANEOUS. This agreement contains the entire understanding between the Customer and the company and replaces any earlier discussions or agreements. This agreement cannot be changed except by a writing signed by Customer and company. If any provision of this agreement is found to be invalid, the remaining provisions are still effective. This agreement is governed by the law of the State of New Jersey with the parties agreeing to the Courts in Union County. This agreement is not binding on the company until the earlier of: (i) company, through its authorized representative, signs this agreement; or (ii) services are commenced under this agreement. If the company does not approve this agreement, the company’s only obligation is to refund any payments the Customer has made. Any repairs, additions, service, testing, or equipment which the company provides to the Customer in the future are subject to the terms of this agreement, including without limitation, the limitation of liability, Customer ’s protection of company, and waiver of subrogation.

 

12. The Customer acknowledges that because of color dye and natural raw material inconsistencies, pavers and products will have color, shade, and texture variations. Pavers, natural shells or aggregates are embedded at different distances from the surface of the material and a small percentage of the natural shells or aggregates are expected to come loose which may diminish over a short span of time. The Customer can expect variations in color and some chipping and non-perfect edges may occur. These details enhance the appearance of pavers. Pavers should be installed from several pallets at a time to maintain the best color consistency over a wide selection. Regrettably, by having several pallets, additional quantities may remain at the completion of the job. In any event, due to the diversity in the natural aggregates used to make pavers from any manufacturer, the differences of aggregates in each plant and other elements are beyond the control of the company so that the colors seen in samples may not exactly match the sample shown.