Terms & Conditions

Exhibit A 

These Terms and Conditions shall apply to any and all agreements between Davis Property Care, LLC dba Davis Landscaping & Construction (“Contractor”) and Owner, to any goods, materials or fixtures procured by Contractor for Owner, any goods, materials or fixtures installed by Contractor on Owner’s behalf, or any services provided to Owner by Contractor. 

1. RIGHT TO REPAIR\REMEDY. Contractor shall strive to provide services to Owner in a professional and workmanlike manner. Owner shall provide Contractor with written notice of defects in any goods installed or services performed, regardless of the cause or source, promptly upon Owner’s discovery of them. Owner shall also provide Contractor with reasonable access during Contractor’s regular working hours to permit investigation, testing, examination, and repair of defect claims. 

2. RIGHT TO CURE. If applicable, Contractor and Owner agree to comply with Wisconsin Right to Cure Laws, Wisconsin Statute Section §895.07, including requirements of notice and providing Contractor with a right to repair before Owner commences dispute resolution proceedings as provided in these Terms and Conditions, under any other agreement between the Parties, or at law. Owner hereby agrees that it has obtained a copy of the Wisconsin Right to Cure Brochure found on https://dsps.wi.gov/Documents/Programs/UDC/RightToCureLaw.pdf. 

3. CHANGES TO SCOPE OF WORK & PAYMENT. Any alteration or deviation from the above specifications, will be accomplished only upon a written change orders and will become an extra charge over and above the estimate. At Contractor's option, the contract shall be subject to price increases if construction is commenced after the scheduled erection date or more than sixty days after date of this contract or if a substantial increase of the cost of materials occur. Owner will receive written notification of such increase before material is delivered. Contract amount is based on level site. 

If extra materials and/or labor are required because of a sloping construction site, Owner will pay for the same upon request of Contractor. The price of such materials will be Contractor's usual and customary price. If because of buried objects (concrete, rocks, etc.) or because extra hole depth is required beyond 5 feet 6 inches and Contractor is unable to proceed with normal digging procedures, then the extra expense resulting from such condition(s) will be the obligation of the Owner and shall be paid to Contractor upon request. 

All amounts which are past due shall be subject to an interest charge of 1.5% per month, (18% per annum) accruing from the date the payment was due. Invoices are payable to Contractor at 8431 S. 44th Street, Franklin, Wisconsin 53132 All Contractor’s costs of collection and/or enforcement of this Agreement, including actual attorney fees incurred, shall be paid by Owner. 

4. SECURITY AGREEMENT. Owner hereby grants Contractor a security interest in all goods, materials and fixtures installed or procured by Contractor to secure payment of all sums due to Contractor from Owner. Furthermore, Owner agrees to execute any documents reasonably required by Contractor for perfection of this security interest. Owner shall not sell, dispose of, attempt to convey, or remove the goods or fixtures from the county where originally delivered until all amounts due to Contractor are paid in full. 

5. LIEN NOTICE. Owner acknowledges Contractor has certain Lien rights, under applicable law, against the owner of real property, which are outlined below. Owner agrees to indemnify and hold harmless Contractor for any loss of Contractor’s lien rights caused by Owner’s breach of this section. 

A. Notice required by Wisconsin Law:
AS REQUIRED BY THE WISCONSIN CONSTRUCTION LIEN LAW, CLAIMANT HEREBY NOTIFIES OWNER THAT PERSONS OR COMPANIES PERFORMING, FURNISHING OR PROCURING LABOR, SERVICES, MATERIALS, PLANS, OR SPECIFICATION FOR THE CONSTRUCTION ON OWNER'S LAND MAY HAVE LIEN RIGHTS ON OWNER'S LAND AND BUILDINGS IF NOT PAID. THOSE ENTITLED TO LIEN RIGHTS, IN ADDITION TO THE UNDERSIGNED CLAIMANT, ARE THOSE WHO CONTRACT DIRECTLY WITH THE OWNER OR THOSE WHO GIVE THE OWNER NOTICE WITHIN 60 DAYS AFTER THEY FIRST PERFORM, FURNISH OR PROCURE LABOR, SERVICES, MATERIALS, PLANS OR SPECIFICATIONS FOR THE CONSTRUCTION. ACCORDINGLY, OWNER PROBABLY WILL RECEIVE 

NOTICES FROM THOSE WHO PERFORM, FURNISH OR PROCURE LABOR, SERVICES, MATERIALS, PLANS OR SPECIFICATIONS FOR THE CONSTRUCTION AND SHOULD GIVE A COPY OF EACH NOTICE RECEIVED TO THE MORTGAGE LENDER, IF ANY. CLAIMANT AGREES TO COOPERATE WITH THE OWNER AND THE OWNER'S LENDER, IF ANY, TO SEE THAT ALL POTENTIAL LIEN CLAIMANTS ARE DULY PAID. 

6. ACCEPTABLE DELAYS. Any delay by Contractor in performing its duties, which is caused by any of the following circumstances, shall not be considered a default or breach of these Terms and Conditions or Contractor duties under any agreement between the Parties: 

1. Acts or omissions of governmental authorities; 
2. Inclement weather or other acts of God; 
3. Unforeseen material or labor shortages not caused by the sole gross negligence of Contractor; 
4. Unforeseen material delivery delays not caused by the sole gross negligence of Contractor; 
5. Changes to the original scope of work requested by Owner or other delay caused, in whole or in part, by Owner; 
6. Strikes, riots and insurrection; or 
7. Any other factor outside of Contractor’s control. 

7. TERMINATION. Owner has seventy-two (72) hours to cancel the contract after the date of execution. In the event Owner terminates this Contract after seventy-two (72) hours, Contractor shall be entitled to its costs/expenses incurred and profit for work performed, as well as overhead and lost profit of ten (10%) percent of unfinished work. 

8. INDEMNIFICATION & LIABILITY. Owner shall indemnify, defend, and hold harmless, Contractor, its assigns, successors, directors, owners, shareholders and employees, from and against those liabilities, damages and costs, including reasonable attorney fees, arising out of any third-party claim, to the extent caused by the willful misconduct, intentional act, negligent act, error or omission of Owner or anyone under Owner’s control. Owner’s duty shall include, but not be limited to indemnification of Contractor for digging into or through any unmarked, underground utilities, which is the Owner’s sole responsibility to mark such utilities prior to commencement date. 

In no event shall Contractor be liable to Owner for any general, incidental or consequential damages of any kind, including without limitation, any damages for personal injury/death, loss of use, loss of profits, or damage to property, for Contractor’s breach of contract, breach of warranty or other fault. Contractor’s maximum liability and Owner’s sole remedy under this Contract is expressly limited to either 1) Refunds of the sums paid to Contractor, or 2) Repair of the alleged Defect, at the option of Contractor. 

In addition, Contractor shall not be liable for damage to buildings occasioned by soil conditions including water table conditions, nor the inability of the building site to bear the weight of the building or structure. Furthermore, Contractor is not liable for any shrinkage cracks that occur in any concrete flatwork, poured walls, blocks/pavers and/or curbs. Contractor shall not be responsible for damage to property of Owner if incurred while Contractor accesses site. 

9. ACCESS. Owner shall provide access to the site for delivery of material and construction of this contract by Contractor. Owner shall be responsible for any costs associated with snow removal from the building site, if applicable. 

10. PERMITS AND LICENSES. Owner shall timely obtain, at Owner's cost, all necessary and required permits and licenses for the construction contemplated by the Agreement, unless otherwise agreed to in writing among the parties. 

11. INSURANCE. In connection with Contractor’s performance under this Agreement, Contractor shall maintain, for so long as it is providing goods, materials or services, a general comprehensive commercial liability policy with coverage of at least $1,000,000 per occurrence and a $2,000,000 aggregate. Contractor further carries workman’s compensation insurance with statutory limits of $500,000 and automobile liability with a $1,000,000 combined single limit. Each party hereto waives any rights of subrogation their respective insurers might have as against the other party to the extent permissible and only if such waiver does not adversely affect insurance coverage. It is agreed to among the parties that before any claim against Contractor’s insurance will be made, Owner must submit full payment to Contractor for services performed, before Contractor makes any claim to its insurer for alleged loss, damage, or otherwise. 

12. MATERIALS. Any and all materials delivered to the Construction site but not used in actual construction remain the property of the Contractor with the exception of such materials deemed by Contractor as scrap. 

13. USE OF BUILDING. Any use of the building or structure by Owner represents acceptance and approval by Owner. 

14. DEFAULT. In the event of a breach or default by Owner, Owner shall be responsible for and pay Contractor all costs and expenses incurred by Contactor in collecting the sums due hereunder, including recovery of actual attorney's fees and disbursements. This right shall be in addition to any other remedy allowed by law. 

15. LOCATION. It shall be the responsibility of the Owner to determine the location of the building or structure to be constructed pursuant to the Agreement and Owner shall be responsible to determine that the location of the building or structure is in compliance with the applicable setback requirements and zoning requirements. Contractor assumes no liability for incorrect placement of building or structure. 

16. DISPUTE RESOLUTION. Unless otherwise stated herein, any dispute between the Parties, arising under this Contract, shall be determined by arbitration commenced in accordance with Wis. Stat. Ch. 788 and the American Arbitration Association (AAA) office in the State of Wisconsin, in effect on the date hereof. All statutes of limitations, which would otherwise be applicable, shall apply to the arbitration proceedings. There shall be one arbitrator agreed upon by the parties or selected by the administrator of the American Arbitration Association (AAA) office in the state of Wisconsin. The arbitrator shall be an attorney with at least 10 years’ experience in commercial law in the Waukesha County, Wisconsin area, which shall be the venue of arbitration. Any issue about whether a claim is subject to arbitration shall be determined by the arbitrator. Notwithstanding the above, Contractor may, but shall not be required to submit to arbitration any claim in which the principal relief sought by contractor is recovery of the purchase price of the goods, monies owed to Contractor by Owner and/or lien claims Contractor has against Owner. Contractor may commence legal action against the purchaser/Owner on any such lien in a court of competent jurisdiction, but may elect, prior to judgment on such claim, to arbitration without having waived such right by commencing suit. 

The arbitrator shall not be bound by the rules of evidence or civil procedure. The arbitrator shall hold a private hearing within 120 days of the arbitration demand; conclude the hearing within three days; and render a written decision within 14 calendar days of the hearing. These time limits are not jurisdictional. In making the decision and award, the arbitrator shall apply applicable substantive law and shall make a brief statement of the claims determined and the award made on each claim. absent fraud, collusion or willful misconduct by the arbitrator, the award shall be final, and judgment may be entered in any court having jurisdiction thereof. The arbitrator shall award actual attorneys' fees incurred and costs to Contractor, should Contractor be the prevailing party, however, the arbitrator shall not have the power to award punitive or exemplary damages to either party. 

17. EXCLUSIVE WARRANTY. If Owner makes all required payments when due, Contractor hereby warrants the following: 

A. CONTRACTOR warranty includes:

1. All labor performed by Contractor to the Original Retail Purchaser to be free from defects in workmanship for a period of one (1) year from the date of sale.
2. Shrubs and trees shall have a 9 month warranty from date of sale, however, is the clients job to water and maintain the trees after the job is finished. 

B. Contractor warranty does not include: 

1. Perennials. Contractor will come back and replant if a perennial does not do well, but it will be at the expense of the client, this includes plants and labor at a rate of 85/hr. 
2. Transportation by Contractor of material to any location other than the construction location. 
3. Freight costs above standard shipping costs for the replacement parts. 
4. Defects in any material supplied directly by Owner or any used material incorporated at Owner's request, including any defects in the building caused, directly or indirectly, by use of such material. 
5. Materials covered by their own non-CONTRACTOR warranties. 
6. Any damage or defects caused by negligence or intentional act of Owner or other third parties not hired by Contractor. 
7. Any damage or defects caused by defective materials not supplied by CONTRACTOR, including any defects in the building caused, directly or indirectly, by use of such material. 
8. Repairs, adjustments or damage caused by: improper use; non-intended use; failure to follow recommended maintenance procedures; failure by Owner or other third parties not hired by Contractor to follow manufacturer's instructions; damage or defects caused by inadequate ventilation; damage or defects caused by criminal acts of others, or negligence of Owner (whether partial or fully) or other third parties not hired by Contractor or other casualties. 
9. Weather damage to lawn, surface damage to concrete or discoloration of concrete. 
10. Liability for incidental or consequential damages of any type, including, but not limited to lost profits or expenses of acquiring replacement equipment or damage to machines to which the attachment is installed. 
11. Repairs, alterations or other work performed by others, without Contractor knowledge and written consent, on work contracted to be performed by Contractor. Contractor cannot warrant any work performed by third parties for which Contractor was contracted to perform. Any such work performed by unauthorized workers, including Owner, voids the entire warranty by Contractor. 

18. ***WARRANTY DISCLAIMER AND LIMITATIONS***. THERE SHALL BE NO IMPLIED WARRANTY OF MERCHANTABILITY AND NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE ON ANY GOODS, MATERIALS, FIXTURES, OR SERVICES PROVIDED BY CONTRACTOR. FURTHERMORE, THERE IS NO OTHER EXPRESS OR IMPLIED WARRANTY, STATUTORY OR OTHERWISE, ON ANY GOODS, FIXTURES, MATERIALS, OR SERVICES PROVIDED BY CONTRACTOR EXCEPT AS EXPRESSLY SET FORTH HEREIN. ORAL STATEMENTS BY EMPLOYEES OF CONTRACTOR OR OTHER PARTIES DO NOT CONSTITUTE WARRANTIES. CONTRACTOR SHALL NOT BE LIABLE FOR ANY GENERAL, CONSEQUENTIAL OR INCIDENTIAL DAMAGES INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOSS OF USE, LOSS OF PROFITS, OR DAMAGE TO OTHER PROPERTY OR EQUIPMENT FOR ANY BREACH OF CONTRACT, BREACH OF WARRANTY OR OTHER FAULT. IT IS UNDERSTOOD AND AGREED THAT THE LIABILITY OF CONTRACTOR AND OWNER’S EXCLUSIVE REMEDY IS EXPRESSLY LIMITED TO REFUNDS OF THE SUMS PAID TO CONTRACTOR, OR REPAIR OF THE ALLEGED DEFECTS, AT THE OPTION OF CONTRACTOR. 

19. ACCEPTANCE. The Parties acknowledge that both have read this Agreement carefully and hereby accept its terms and conditions and agree to be bound by such Agreement. Owner consents to Contractors’ use of photos of the location, building and/or structure for advertisement purposes. 

20. ASSIGNMENT/SUBCONTRACT. The Owner consents and agrees that Contractor may assign or subcontract all or part of this Agreement to third parties, in Contractor’s sole and absolute discretion. Owner shall not assign or subcontract any of its obligations or duties under this Agreement, without the express written consent of Contractor. 

21. GOVERNING LAW; JURISDICTION AND VENUE; ATTORNEY FEES. This Agreement shall be governed by the laws of the State of Wisconsin. In the event of legal action, not mandated to be arbitrated pursuant to Section 16, above, Owner hereby consents to jurisdiction and venue in the Circuit Court of Waukesha County, Wisconsin. In the event of legal action between Contractor and Owner, if commenced in state court, for the recovery of sums owed to Contractor by Owner, and/or for the enforcement of lien rights against Owner, Contractor shall be entitled to recover all costs and expenses, including actual attorney fees. 

22. INTEGRATION & LIMITATION OF OTHER TERMS. The Parties agree that these Terms and Conditions shall be fully integrated into any agreement between Contractor and Owner. In the event of a conflict between the terms of any other written agreement between Contractor and Owner and these Terms and Conditions, these Terms and Conditions shall control. Furthermore, any terms or conditions contained on a purchase order or other writing shall be binding upon the Parties only insofar as they do not conflict or modify these Terms and Conditions and are signed by both parties.