TERMS AND CONDITIONS

The following Terms and Conditions are incorporated into the Agreement between Company and Customer and shall be binding on the parties without any further acknowledgement necessary.  

1. 1. Sourcing. Except as otherwise set forth in the Agreement, Company reserves the right to select its sources of raw materials, suppliers or producers for any services provided pursuant to the terms of the Agreement (the “Services”).
   2. Pricing; Payment Terms. Customer shall pay Company the amount set forth in the Agreement for Services provided (the “Fee”). The Fee shall be payable in lawful money of the United States, without notice, demand, deduction or setoff. All unpaid Fee(s) not paid to the Company within five (5) days of the applicable due date shall be subject to a two percent (2%) service fee each month until paid in full. 
   3. Responsibilities of the Parties. The Company will have the installation area marked by Ohio Utilities Protection Service (OUPS) for utility lines and acquire necessary permits.  Lines not marked by OUPS (which may include, but not be limited to, swimming pool lines, electric service to a garage, sprinkler systems, septic and leach lines and non-marked utility or drain lines) are the Customer’s responsibility.  Customer is further responsible for verifying property boundaries, having any privately installed lines marked and ensuring there is unobstructed access to the fence line. 
   4. Obstructions.  Customer acknowledges and agrees that Company may be unable to perform Services on the Property due to the presence of landscaping, vehicles, obstacles, or equipment thereon. Customer shall be responsible, at its sole expense, for the removal or relocation of any such landscaping, vehicles, obstacles, or equipment from the Property during Company’s performance of the Services. 
   5. Changes to Project Plans. Any changes to approved drawings, specifications, or project plans must be submitted via email and approved by the Company no later than Five business days prior to the scheduled installation date. Changes requested within this timeframe or after approval may result in delays, additional charges, or both. The Company reserves the right to invoice for any additional labor, materials, or administrative costs incurred due to these changes. 
   6. Customer Approval. Customers are required to review and confirm the final project drawings and specifications with a Company representative on the day of installation, before work begins. This confirmation ensures mutual understanding of the project scope and location. Any discrepancies identified during this review must be addressed immediately. Failure to confirm drawings on the day of installation may result in delays and an additional charge of Five Hundred Dollars ($500.00). 
   7. Warranty; Assumption of Risk. The materials used for the fencing may be covered by a manufacturer’s warranty, which, if applicable, the Customer may utilize directly in the event of any defects or issues. In such event, Company will provide the Customer with the necessary information to make a warranty claim with the manufacturer. The Company provides a one-year labor warranty, effective from the completion date of the installation. This warranty covers defects in workmanship only. Notwithstanding the foregoing, the warranties do not cover damage caused by misuse, neglect, accidents, natural disasters, unauthorized modifications, or normal wear and tear. EXCEPT AS OTHERWISE SET FORTH IN THE AGREEMENT AND THE FOREGOING SENTENCE, COMPANY MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY WHATSOEVER WITH RESPECT TO ANY PRODUCT OR SERVICES COVERED BY THE AGREEMENT OR OTHERWISE DELIVERED BY COMPANY. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES ARISING FROM ANY DEFECTS OR DAMAGES FROM ANY PRODUCT OR SERVICES, OR NONCONFORMITY IN COMPANY’S PERFORMANCE OF ITS OBLIGATIONS UNDER THE AGREEMENT. COMPANY SHALL HAVE NO LIABILITY FOR LOSS OCCASIONED BY INJURY OR DAMAGE TO PERSONS OR PROPERTY ARISING OUT OF THE LOCATION, USE, HANDLING, OR POSSESSION OF ANY PRODUCT OR SERVICES PROVIDED BY IT. CUSTOMER HEREBY ASSUMES ALL RISK ASSOCIATED WITH THE LOCATION, USE, HANDLING, AND POSSESSION OF ANY PRODUCT OR SERVICES. 
   8. Disclaimer of Liability
      1. 1. No Guarantee of Results. The Company does not guarantee any specific results or outcomes from the Services. The Customer acknowledges that certain factors, such as soil conditions, weather, or unforeseen circumstances, may impact the durability or performance of the fence.
         2. No Responsibility for Pre-Existing Conditions. The Company is not responsible for damage or defects caused by pre-existing conditions on the Customer’s property, including but not limited to (a) subsurface obstructions or hazards, (b) soil instability or erosion, or (c) utility line interference not marked by OUPS.
         3. Third-Party Products and Services. If the Services involve the use of materials or products supplied by third parties, the Company disclaims all liability for defects or failures in such materials or products. The Customer must address any issues related to third-party products directly with the manufacturer or supplier.
         4. Weather and Acts of God. The Company shall not be liable for delays, damages, or failures resulting from weather conditions, natural disasters, or other events beyond its control.
         5. Exclusion of Certain Damages. To the fullest extent permitted by law, the Company shall not be liable for: (a) loss of use, business interruption, or loss of profits, or (b) damage to plants, landscaping, or underground utilities unless directly caused by the Company’s gross negligence.
   9. Limit of Liability. Notwithstanding anything to the contrary contained herein, to the fullest extent permitted by law, the total liability of the Company, including its officers, employees, agents, and subcontractors, for any claims, damages, losses, or expenses arising out of or related to the Agreement or the performance of Services, whether in contract, tort, or otherwise, shall not exceed fifty percent (50%) of the total amount paid by the Customer to the Company under the Agreement.  The parties hereby agree that any claim Customer may have against Company shall be commenced within one hundred eighty (180) days after the date that Customer had knowledge of, or should have had knowledge of, the cause of action relating to such claim. Any claim made after such date shall be deemed waived. 
   10. Indemnity. Customer shall indemnify and hold the Company Parties harmless from and against any and all liability, losses, causes of action, claims, demands, costs, and expenses (including reasonable attorneys’ fees) arising out of, in connection with, or incident to: (i) any act or omission by any of the Customer Parties relative to any product, Services, or Customer’s obligations under the Agreement, or (ii) any location, use, handling, or possession or any product of Services provided by Company. For the avoidance of doubt, all reasonable costs, including attorney fees, incurred by Company in connection with the Agreement or enforcing the terms thereof shall be payable by Customer upon demand notwithstanding anything contained in the Agreement or these Terms and Conditions to the contrary. For purposes of this paragraph, “Company Parties” shall the Company or any of Company’s members, managers, officers, employees, agents, representatives, affiliates, contractors, vendors, or suppliers.
   11. Termination. Customer may terminate this Agreement only in the event of a material breach of terms by Company not cured within five (5) business days of receipt of Notice by Company detailing such breach. Company may terminate this Agreement with immediate effect in the event of a default by Customer hereunder, including failure to pay any amount due under this Agreement on or before the applicable due date. In the event this Agreement is terminated, the parties shall be released from their respective obligations, except Customer shall remain liable for all accrued Fees and other costs arising hereunder through the date of termination.
   12. No Joint Venture. Nothing in the Agreement shall create a partnership, joint venture, or any joint enterprise between Company and Customer.  No party or a party’s employees, agents, or servants, are to be considered the employees, agents, or servants of the other party, under any circumstances, or for any purpose. Each party shall be solely responsible for the payment of its taxes, employees’ salaries, unemployment insurance, liability insurance, health and welfare costs including worker’s compensation, employee benefits and other employment-related costs, charges and deductions. 
   13. Force Majeure. For the purposes of the Agreement, Company shall not be required to perform any of its obligations hereunder, nor be liable for loss or damage for failure to do so, nor shall Customer be released from any of its obligations under this Agreement because of Company’s failure to perform, where such failure arises from or through acts of God, strikes, lockouts, labor difficulties, shortages of equipment, delays in issuance of governmental permits or approvals, explosions, sabotage, accidents, strikes, riots, civil commotions, acts of war, results of any warfare or warlike conditions in this or any foreign country, fire and casualty, epidemic, pandemic, and government orders or regulations, or other causes beyond the reasonable control of Company (in each instance a “Force Majeure Event”). If Company is so delayed or prevented from performing any of its obligations under the Agreement, the period of such delay or such prevention shall be deemed added to the time herein provided for the performance of any such obligation.
   14. Assignment. Customer shall not assign the Agreement or any of its rights or obligations thereunder to any person or entity without the prior written consent of Company, which consent may be withheld in Company’s sole discretion. 
   15. Governing Law; Dispute Resolution. The Agreement between Company and Customer, including these Terms and Conditions, shall be governed by and construed in accordance with the laws of the State of Ohio. Notwithstanding anything contained herein to the contrary, any dispute arising between Seller and Buyer shall first be submitted, within thirty (30) days of the date the dispute arises, to mediation in Cleveland, OH pursuant to procedures of the American Arbitration Association (“AAA”). Any agreement regarding settlement reached at the mediation shall be reduced to writing and signed by the parties, no later than five (5) days after the conclusion of the mediation. If the mediation is unsuccessful, then the dispute shall be submitted, no later than thirty (30) days after the mediation, to arbitration conducted pursuant to procedures of the AAA. Arbitration shall occur no later than ninety (90) days after submitting the matter to be arbitrated. The parties shall share equally the fees of the mediator and, if applicable, the fees of the arbitrator. The award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Without limiting the generality of the foregoing, no party shall be required to resort to mediation or arbitration as a prerequisite to seeking and/or obtaining the remedies of specific performance or injunction, and any action or suit seeking either of such remedies may be filed directly in any court of competent jurisdiction with jurisdiction in Cuyahoga County, OH, and the parties hereby waive any objection to such venue.
   16. Miscellaneous. The Agreement sets forth the entire agreement between Company and Customer respect to the subject matter thereof and supersedes any and all prior agreements or understandings between the parties with respect to any such matters. The Agreement shall inure to the benefit of and shall be binding upon and enforceable against the respective heirs, legal representatives, successors and permitted assigns of Company and Customer. If any provision, paragraph, or subparagraph of the Agreement is adjudged by any court to be void or unenforceable in whole or in part, this adjudication shall not affect the validity of the remainder of the Agreement, including any other provision, paragraph, or subparagraph.  Each provision, paragraph, or subparagraph of the Agreement is severable from every other provision, paragraph, or subparagraph, and constitutes a separate and distinct covenant. In the event of any conflict between the Agreement and these Terms and Conditions, the Agreement shall control.

[End of Terms and Conditions]