Service Agreement

LANDSCAPING SERVICES AGREEMENT

THIS LANSCAPING SERVICES AGREEMENT is made as of this _____ day of ________________, 20____ between Sandhills Native Plants, L.L.C., 378 Mills Place, Biscoe, North Carolina 27209, (“SNP”) and __________________________________________________________________, with an address of _______________________________________________, (“Owner”) and incorporates the Standard Terms and Conditions and other exhibits attached hereto.

Work. The “Work” to be performed and specifications therefor are the services described on Exhibit A attached hereto and incorporated herein.

Fees.

Owner shall pay the Fees to SNP in current funds for performance of the Work by SNP of this Agreement. The “Fees” shall be set forth on the Estimate described on Exhibit A.

Owner shall pay the “Deposit” in the amount of forty percent (40%) of the Fees set forth on the Estimate SNP in current funds upon execution of this Agreement.

Rates. Billing rates shall be as follows and shall be subject to change upon thirty (30) days notice by SNP to Owner:

Rates for Drafted Landscape Designs: $125/hour

Expert plant selection and layout fee: $275, applied to all projects

Design consults: $125/hour

Plant sales: Plants acquired by SNP are subject to a 20% markup of the total cost of plant procurement

Manual labor rate: $75/hour per laborer

Documents. “Documents” shall mean this Agreement, the Terms and Conditions, the Estimate, the Proposal, Exhibit A, and any other exhibit attached hereto, and any change order executed by the parties.

Owner understands that the Estimate is purely an estimate of fees owed and that Owner shall be liable and responsible for any additional funds owed to SNP, if any, pursuant to the final invoice which shall be submitted to Owner once the Work is completed.

Exhibits. All exhibits, including, but not limited to, the Standard Terms and Conditions and Exhibit A attached hereto, shall be incorporated into this Agreement.

Sandhills Native Plants OWNER

Sandhills Native Plants LLC ___________________________ (entity name, if any)

__________________________ ___________________________

By: Mikaela Murphy By: ____________________ (print name)

Its: Manager Its: ____________________ (title if signing for an entity)

The following terms and conditions (the “Terms and Conditions”) apply to and are incorporated into the estimates unless expressly modified or excluded in writing by Sandhills Native Plants L.L.C., (“SNP”).

Landscaping Services Agreement.

The Landscaping Services Agreement (the “Agreement”) consists of this Agreement between Owner and SNP and its attached Exhibits and Contract Documents, including these Terms and Conditions. The Agreement represents the entire and integrated agreement between Owner and SNP and supersedes prior negotiations, representations or agreements, either written or oral.

The Agreement may be amended or modified only by a written amendment, signed by SNP and Owner, to the Landscaping Services Agreement.

Creative Works. The works, drawings, documents, designs, specifications, graphics, works of authorship, creative works, ideas, content and other tangible and intangible materials, in whatever form and whether existing singularly or in combination with other materials, which were authored, created or developed, solely or collaboratively with others, by SNP (the “Creative Work”) constitute the intellectual property of SNP and are not “works made for hire” under the United States Copyright Act of 1976 pursuant to which SNP reserves and shall retain, except for the License (as hereinafter defined) and subject to the terms and conditions thereof, all right, title, and interest in and to the Creative Work. Upon payment in full for the Work pursuant to this Agreement, SNP shall grant a single non-exclusive license to Owner to use the Creative Work as set forth in this Agreement (the “License”). In the event SNP creates Creative Work but Owner terminates this Agreement prior to any ground-related work is performed on the site, SNP may, in its sole and exclusive discretion, choose to grant the License to Owner for a fee of three thousand five hundred dollars ($3,500), which shall be in addition to the hourly work to create such Creative Work.

Work of the Landscaping Services Agreement.

SNP shall fully execute the Work described in the Agreement.

The “Cost of the Work” means all costs incurred in the Work including, without limitation, wages paid for labor in the performance of the Work (including, without limitation, the straight time and overtime pay and costs of associated employee benefits including, without limitation, unemployment compensation, Social Security, compensated absences, and other mandatory and customary contributions), the cost of all materials, supplies, and equipment used or incorporated in the Work, sales, use, gross receipt, or similar taxes related to the Work imposed by any governmental authority and for which SNP is liable, cost of removal and disposal of all debris (including clean-up and trash removal), measurements and layout work reasonably required for the execution of the Work or the requirements of the Agreement, costs to SNP of utilities required for the performance of the Work or required for the protection of the Work from weather damage, costs of preparation of drawings, plans, photographs and costs for reproduction of documents, and all other actual out-of-pocket costs directly incurred in the performance of the Work.

Payments.

Owner shall deposit forty percent (40%) of the Fees as set forth on the Estimate with SNP prior to consummation of the Work. This Deposit shall be used to pay items, including, but not limited to, direct out-of-pocket expenses for materials and hourly work performed, and SNP shall provide bi-weekly invoices to Owner setting forth such costs and expenses and the amount of such Deposit as applied, including any additional amounts owed for hourly labor and/or materials.

In the event Owner requests a change pursuant to a fully executed change order, that change order shall be incorporated into the Estimate and the price shall be increased or reduced accordingly. SNP reserves the right, in its sole discretion, to increase the value of the Contract Documents due to changes in design or materials by Owner after execution of the Contract Documents and may result in a change order fee of $125.

Owner understands that the Estimate is purely an estimate of fees owed and that Owner shall be liable and responsible for any additional funds owed to SNP, if any, pursuant to the final invoice, which shall be submitted to Owner once the Work is completed.

Payments are due immediately upon receipt. If, after thirty (30) days from the date of the invoice the invoice remains unpaid, there will be a ten percent (10%) late fee added to the total amount invoiced.

Final payment, constituting the entire unpaid balance of the Fees, shall be made by the Owner to SNP not later than ten (10) days after SNP has fully performed this Agreement except for its responsibility to satisfy any requirement that extends beyond final payment.

If any payment due or owed to SNP is collected by or through an attorney, Owner agrees to pay a reasonable attorneys’ fee to SNP in addition to any payment due or owed to SNP.

Payment can be made by personal check, cash, credit card, or Zelle. In the event of a returned check, SNP shall charge Owner a returned check fee in the amount of thirty five dollars ($35.00). Payment by credit card will be subject to a convenience fee of three and one-half percent (3.5%) or any other applicable rate.

Change Order.

No modification of this Agreement shall be valid unless in writing and agreed upon by both Parties.

An additional estimate will be provided to the Owner for approval of the Change Order prior to the work being performed. An approved estimate from the Owner is required before the additional work can be performed.

Materials.

Any materials delivered to Owner at Owner’s site shall be the responsibility of Owner, and SNP disclaims any responsibility for loss, damage, or care therefore after delivery to Owner’s site.

Any materials delivered to Owner at Owner’s site which are in excess of materials required for the Work shall remain property of SNP and Owner shall not be billed or charged for such materials.

Maintenance after Completion. SNP shall perform the Work, and the proper maintenance of the site shall pass to the Owner upon substantial completion, unless otherwise agreed in writing. Substantial completion is deemed to take place as specified by and in the sole and exclusive discretion of SNP.

Third Party Documents. SNP has no responsibility or liability for structural considerations, appearance of finish features, or overall management of works where an outside third party has provided advice, drawings, or supervision, unless agreed in writing prior to start of contract. It is the responsibility of the third-party to bring the conditions or results thereof to the attention of the Owner.

Warranty. SNP provides, only if Owner hires SNP for regularly scheduled maintenance on Owner’s landscaping at a mutually agreed upon schedule, a limited and non-transferable warranty on landscape labor and materials pursuant to which SNP shall replace, on one occasion without charge, any plant installed by SNP that fails to live for a period of one (1) year after installation (provided that the plant received care by Owner and was not been damaged after installation by SNP or a third party) or hardscape that is determined to be defective within a period of one (1) year after installation, with adequate proof of proper care and no negligent care of any materials or plants by Owner. This warranty specifically excludes coverage for (i) plants or hardscape materials damaged due to Acts of God (including, without limitation, unusual weather conditions, fire, vandalism, theft, animals, lack of or excess moisture or water and (ii) annuals, vegetables, roses, and plants in planter boxes, pots or barrels, sod, grass seed. SNP MAKES NO WARRANTY OTHER THAN THIS EXPRESS LIMITED WARRANTY AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE (INCLUDING, BUT NOT LIMITED TO, AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE), AND OWNER HEREBY WAIVES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Site Conditions.

Owner shall be liable for all liability, costs and expenses related to or arising from (a) any unusual, atypical or unexpected site conditions (including, but not limited to, rocks, ledges or boulders, subsurface water or groundwater, construction debris, heavily compacted subsoil, tree stumps, roots, utilities and sprinkler systems) or (b) establishment of any reference points on the Work site. In the event a substantial physical modification or deviation from the plan is necessary due to Property conditions (including, but not limited to unusual, atypical or unexpected site conditions, easements or building line restrictions), SNP shall be entitled to terminate this Agreement and shall thereafter refund to Owner any remaining portion of the Deposit after payment to SNP of all accrued Costs of the Work, and the Owner and SNP shall be thereafter relieved of any and all responsibility or obligations hereunder; provided, however, that, in the event that the Deposit is not sufficient to pay all accrued Costs of the Work to SNP, Owner shall promptly remit payment in full thereof to SNP.

Owner is responsible for notifying SNP of any underground utilities, cables, wires, or other underground or non-visible obstructions which SNP would not otherwise be aware and shall hold SNP harmless therefor.

Owner is responsible for obtaining any necessary planning permission for the Work from any municipality or any other governing body and the fulfilling of statutory requirements or other requirements of any other applicable law.

Owner is responsible for marking and identifying all utilities and confirming such location with any public or private utility provider and/or 811.

SNP may need to be on a neighboring property to perform the Work. It is the responsibility of Owner to obtain required permission for any trespass that is required to perform the Work. In the event Owner does not obtain this permission and any neighboring property owner objects, SNP will not be liable for lack of completion of any portion of the Work which cannot be completed but will complete such portion of the Work once permission is obtained. Owner shall not be entitled to any refund in the event permission is not or cannot be obtained.

Limitation of Liability. SNP shall not be liable for any indirect, special, incidental, consequential, exemplary or punitive damages, however caused and under any theory of liability, whether a Party was or should have been aware or advised of the possibility of damages, and notwithstanding the failure of essential purpose of any limited remedy included herein. Owner agrees and acknowledges that this Section 11 represents a reasonable allocation of risk.

Indemnification. Owner agrees to indemnify, defend, hold harmless, and protect SNP from and against all lawsuits and costs of every kind pertaining to the Work, any false or inaccurate information delivered by the Owner pertaining to the site, any breach of any Contract Document, or failure to deliver relevant information by the Owner.

Force Majeure. Any timeline for completion to which SNP agreed shall, notwithstanding any other provision of this Agreement or any other agreement between Owner and SNP, be extended for a reasonable time if SNP is delayed at any time in the progress of the Work by the occurrence of an event or circumstance beyond the reasonable control of SNP including, without limitation, (a) explosions, fires, flood, earthquakes, catastrophic weather conditions, or other elements of nature or acts of God, (b) acts of war (declared or undeclared), acts of terrorism, insurrection, riots, civil disorders, rebellion or sabotage, (c) acts of federal, state, local or foreign governmental authorities or courts, (d) labor disputes, lockouts, strikes or other industrial action, whether direct or indirect and whether lawful or unlawful, and (e) delays caused by Owner’s nonperformance hereunder.

Termination.

Failure of a Party to perform or fulfill any covenant or obligation set forth in these Terms and Conditions or any other Contract Documents and the continuance of the default for a period of ten (10) days after written notice of failure (provided, however, that, if the default cannot be cured within ten (10) days and the Party commences good faith efforts to cure the default within ten (10) days and thereafter diligently and expeditiously proceeds to cure the default, the ten (10) day period shall be extended, but not in excess of thirty (30) days, so long as it shall require the Party to cure the default in the exercise of due diligence) or (ii) the failure of a Party to make any payment due under this Agreement when due shall constitute events of default under this Agreement (individually, an “Event of Default”).

The non-defaulting Party may, upon the occurrence of an Event of Default and expiration of any applicable grace or cure period set forth in this section, deliver written notice of its intention to terminate this Agreement, and, upon the expiration of ten (10) days from the date thereof but subject to Section 14(a) hereof, this Agreement shall terminate. Owner’s remedy shall be the return of his or her deposit; provided, however, in the event the entirety of the Deposit has been used to purchase materials or allocated to Work already performed by SNP, SNP shall retain such payment for Work already performed but shall refund to Owner the cost of any salable materials.

Miscellaneous.

Owner and SNP are referred to in this Agreement, individually, as a “Party” and, collectively, as the “Parties”).

Nothing in this Agreement shall be construed as giving any person or entity, other than the Parties, and their respective successors and permitted assigns, any right, remedy or claim under or in respect to this Agreement or any provision hereof.

This Agreement (i) constitutes the entire and integrated agreement between the Parties related to the subject matter hereof, (ii) supersedes any and all other negotiations, representations or agreements, oral or written, between Owner and SNP related to the subject matter thereof, and (iii) no change, waiver or modification thereof shall be valid unless in writing and duly executed by the Parties.

The section headings throughout this Agreement are for convenience and reference only, and words contained therein shall in no way be held to explain, modify, simplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.

All notices, requests and other communications hereunder shall be in writing and will be deemed to have been duly given and received (i) when personally delivered, (ii) one (1) business day after the day on which the same was properly delivered prepaid for next-day delivery to a national overnight courier service providing evidence of delivery or (iii) five (5) days after the proper deposit thereof in the mail, registered or certified, return receipt requested, postage prepaid, in each case addressed to the Party to whom such notice is to be given at the address hereinafter set forth therefor. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice, request or communication sent. The addresses hereinabove set forth may be changed as to any Party by delivery to the other Parties at least fifteen (15) days prior written notice as to its change of address.

All questions with respect to the construction hereof and the rights and liabilities of the Parties shall be determined in accordance with the applicable provisions of the internal laws of the State of North Carolina; provided, however, that, if any applicable conflict or choice of law rules would choose the law of another State, the Parties hereby waive the effect of such rules and agrees that the substantive, procedural, and constitutional law of the State of North Carolina shall nonetheless govern.

This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall together constitute one and the same agreement (it being understood that all Parties need not sign the same counterpart). This Agreement, to the extent signed and delivered or countersigned and returned by means of a facsimile machine or other or electronic reproductive image of a manual signature, shall be treated in all manner and respects as an original agreement and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.

This Agreement was negotiated by the Parties and is to be deemed to have been prepared jointly by the Parties after arms-length negotiations and constitutes a free bargain between the Parties, and any uncertainty or ambiguity existing herein shall not be interpreted against any Party—and any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any Party shall not apply to any construction or interpretation hereof—but according to the application of the rules of interpretation of contracts. Further, in this Agreement, unless an express contrary intention is herein set forth, (i) the singular number includes the plural number and vice versa, (ii) “hereunder,” “hereof,” “hereto,” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular section or other provision hereof, (iii) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term, (iv) “or” is used in the inclusive sense of “and/or,” (v) references to any Party includes its successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement, and reference to a Party in a particular capacity excludes such Party in any other capacity or individually, and (vi) the recitals hereinabove set forth are incorporated herein by reference.

Owner hereby represents and warrants to SNP that (i) Owner possesses all requisite power and authority to enter into, and perform or otherwise comply with all of its obligations under this Agreement, (ii) is the record owner of the real property upon which the Work shall be performed by SNP, (iii) has taken all action necessary to authorize (A) the execution and delivery of this Agreement and (B) the performance thereby of all of its obligations under this Agreement, (ii) neither the execution and delivery of this Agreement nor the performance by Owner of its obligations hereunder conflicts or will conflict with, or results or will result in a breach of, or constitutes or will constitute a default under any agreement or instrument to which it is a party or by which it is bound, and (iii) this Agreement has been duly executed and delivered on behalf of Owner and is a legal, valid and binding instrument enforceable thereagainst in accordance with its terms.

If this Agreement is executed by more than one person or entity as Owner, all representations, warranties, and obligations of Owner hereunder shall be, and shall be construed as, joint and several between all signatories as Owner hereto.

Wherever possible, each provision hereof shall be interpreted in such a manner as to be effective and valid under applicable laws. In case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision or provisions shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such invalid, illegal or unenforceable provision or provisions or any other provisions hereof unless such a construction would be unreasonable.

Neither the failure nor any delay by SNP in exercising any right, power or privilege under this Agreement or the documents referred to in this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (i) no claim or right arising out of this Agreement or the documents referred to in this Agreement can be discharged by SNP, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by SNP, (ii) no waiver that may be given by SNP will be applicable except in the specific instance for which it is given, and (iii) no notice to or demand on Owner shall be deemed to be a waiver of any obligation of Owner or of the right of SNP to take further action without notice or demand as provided in this Agreement or under applicable law.

The remedies, if any, set forth in this Agreement shall be in addition to any legal or equitable remedies under applicable law or in any other agreement between the Parties and shall not be construed as a limitation upon, an alternative for or in lieu of any other remedies.

Sandhills Native Plants OWNER

Sandhills Native Plants LLC ___________________________ (entity name, if any)

__________________________ __________________________

By: Mikaela Murphy By: ____________________ (print name)

Its: Manager Its: ____________________ (title if signing for an entity)