Terms and Conditions of All Turf, LLC’s Services
In consideration of the services to be provided to you by All Turf, LLC (“All Turf”), you agree as follows:
1. Access to Property; Indemnity. You authorize All Turf and its agents and representatives to access your Property and to provide the services described in your customer account access portal which expressly incorporates these Terms and Conditions (“Services”), which is available at www.lawngateway.com, at the property identified in the portal (the “Property”). You will provide All Turf with reasonable and safe access to the Property in order for All Turf to provide the services. You warrant and represent to All Turf that you are the owner of the Property, or in the event that you are not the owner of the Property, you warrant and represent that you have the legal authority to execute the Services and adhere to these Terms and Conditions and bind the Property and owner to them and to pay for the Services. You will be individually responsible and liable for the service fees charged by All Turf for the Services that are identified in your customer account access portal. You are also responsible for informing All Turf of your Property lines and any Property conditions, latent or patent, that you know of that may hinder or adversely affect All Turf’s ability to provide the Services or adhere to these Terms and Conditions. You will indemnify, defend All Turf against, and hold it forever harmless from any claim by any abutting or nearby property owner that All Turf trespassed on, created a nuisance, or damaged that property owner’s property or interference with another property owner’s rights while providing Services to you at the Property.
2. Price Increases.
a. Adjustments Based on Expansion or Addition of Property. Because the size of your Property is a significant factor in determining the cost of All Turf’s services, All Turf may increase the specified charges proportionally based on any expansion of your Property.
b. Fuel, Material, and Labor Cost Increases. Because the product, labor, and fuel costs constitute a significant portion of All Turf Services, All Turf may increase the price of your Services on account of an increase in its product, labor, or fuel costs. Similarly, All Turf may experience cost increases as a result of other unforeseen circumstances including, but not limited to, changes in government regulations. If All Turf increases the cost of your Services, then you
will receive at least 30 days advance notice of the same. You have the right to terminate your Services within the 30-day period by giving notice in writing to All Turf. If you do not terminate Services, then the price adjustment will become automatically effective, and the Services will continue at the increased price.
c. Other Price Increases. All Turf may, in its discretion, increase the price of your Services for other reasons. If All Turf increases the cost of your Services, then you will receive at least 30 days advance notice of the same. You have the right to terminate the Services within the 30-day period by giving written notice to All Turf. If you do not terminate Services, then the price adjustment will become automatically effective, and the Services will continue at the increased price.
With the exception of the potential increases described in subparagraphs (a) and (b), All Turf will not increase its prices on an elective basis more than once per year. Once any price increase becomes effective, by not terminating you have given your consent and voluntary agreement to such price increases.
3. Payment Terms. Payments for Services are due within 30 days of the services being provided. If you fail to timely pay for Services, then All Turf reserves the right to suspend or terminate your Services; additionally, any amounts due but not timely paid will be assessed a one-time administrative late fee of greater than 5% of the amount due or $ .50 [KH1] which is intended to defray administrative costs and to review the status of the account and to initiate collections if necessary. A service charge of $25.00 will be charged for any returned check. You may pay your invoice by credit card. If All Turf has to engage counsel to collect any amounts due from you to All Turf, then you will pay all costs of collection, including but not limited to the reasonable attorneys’ fees that All Turf incurs with respect to such collection.
4. Authorization for Recurring Payments. For your convenience, you may place a credit card on file with All Turf for payment of the Services that All Turf provides you. By placing a credit card on file, you authorize All Turf to charge the credit card for the Services and any additional late fees or charges imposed on your account as identified in your customer account access portal as such Services are provided, and you represent and warrant to All Turf that you are an authorized user of the credit card and will not dispute the payment with your credit card company, provided the amounts charged for the Services and late fees and charges are consistent with those identified in your customer account access portal. Your authorization to charge the credit card on file will continue until you provide All Turf with a written revocation of the authorization, which revocation must be provided at least 15 days before your next scheduled Services. You also shall be responsible for paying any merchant credit charges incurred by All Turf for credit card processing which shall be included on your next billing statement.
5. Termination. Notwithstanding termination for price increases as set forth previously herein, you have the option to terminate the Services that All Turf provides you at any time for any reason or no reason, provided that you notify All Turf of the termination in writing or by telephone prior to the conclusion of any billing period and before Services are rendered. You will remain responsible for all amounts due to All Turf for Services provided before termination. Similarly, All Turf may terminate the Services that it provides you at any time for any reason or no reason, and in such event, you will remain responsible for all amounts due to All Turf on account of Services and other late fees and charges that it provided to you or that you incurred before termination. Any termination under this Paragraph applies to the Property only identified in your portal and shall not apply to other properties at which All Turf may provide Services to you unless you specifically include such other properties in your written termination notice.
6. Recorded Telephone Calls. You consent to All Turf’s monitoring and recording of telephone calls between you and its employees for quality control, training, and customer service purposes. You further agree that any data collected, other than personal identifying information such as social security numbers and dates of birth if any are provided and credit card information, through the portal is the property of All Turf and may used by All Turf for any purpose whatsoever.
7. Limitation of Liability. Neither you nor All Turf, in any event, will be liable to the other for indirect damages, general damages, consequential damages, punitive damages, exemplary damages, nominal damages, specific intent damages, lost profits, lost income, or costs and expenses related to the performance of the Services and/or procurement of substitute Services, whether arising in contract, tort, or under any other theory of law, contract or in equity. You agree that All Turf’s total liability for any and all claims, damages, injuries, and expenses that you incur or allegedly incur that arise out of or relate to the Services provided to you by All Turf whether your claim is resolved in court, arbitration, mediation, or informally through negotiation or settlement, shall not exceed $1,000. This provision is intended to be a liquidated damages clause under Georgia law, and All Turf and you agree that damages for the Services are not capable of finite calculation and the injury caused by any alleged breach would be difficult or impossible to accurately estimate. You and All Turf agree that this provision is intended to provide for damages rather than for a penalty; and the sum stipulated is a reasonable pre-estimate of any probable loss arising from the Services, performance of the Services, materials used during the Services, and/or the contractual relationship with All Turf.
8. Duty to Inspect. You have a duty to inspect the Property within 7 days after All Turf’s Services have been provided. If you believe that All Turf provided deficient Services, then you must notify All Turf in writing within 10 days of the date on which the Services were provided. If you do not, then the Services will be deemed to have been provided in full compliance with all applicable requirements, and that you are satisfied with the Services, and you shall be deemed to have waived any actual or potential claim that you may possess based on any alleged inadequacy of or deficiency in the Services provided for any particular performance of Services rendered to you.
9. Notice to Tenants, Employees, and Invitees. To the extent necessary, you will notify all tenants, employees, visitors, or any other invitee at the Property of scheduled Services before the date of such scheduled Services.
10. No Warranties. All Turf makes no warranty or representation of any kind, expressed or implied including without limitation those contemplated under O.C.G.A. 11-2-34 et seq., concerning either the products used or the Services performed which are provided on an as-is, where-is basis, including no implied warranty of merchantability, usage of trade, or fitness of the products or Services used for any particular purpose, and no such warranty will be implied by law, usage of trade, course of performance, course of dealing, or on any other basis. By accepting the Services, you further expressly waive any express or implied warranties.
11. No Assignment. You may not assign your agreement with or Services provided by All Turf to any other person or entity without All Turf’s advance, written permission, which may be given or withheld at All Turf’s sole discretion.
12. Your Services Program. Specific products, rates of application, and methods of application will vary with the season, weather conditions, and the needs of your lawn as determined by All Turf. Your regularly scheduled programs may be modified depending on the weather and the condition of your lawn. You understand, acknowledge, and agree that due to climate, weather conditions, and other forces outside the control of All Turf may impact or affect the results or delay the results of All Turf’s Services. You expressly agree to allow All Turf to modify its surfaces as may be necessary from time to time to attempt to overcome such obstacles.
13. Class Action Waiver. Any claim, dispute, or controversy (“Claim”), regarding any contract, tort, statute, or otherwise arising out or relating to these Terms and Conditions, the Services that All Turf provides you, or any other matter between you and All Turf must be pursued in your individual capacity and not as a plaintiff or class member in any purported class, collective, representative, multi-plaintiff, or similar proceeding (“Class Action”). You expressly waive any ability to maintain any Class Action in any forum. You expressly admit and acknowledge that every Service is unique to each Property and as such cannot be subject to a class action.
14. Arbitration. Any Claim between you, your heirs, successors, and permitted assigns, and All Turf, or against the other’s employees, agents, or assigns, shall be resolved solely and finally by neutral, mandatory binding arbitration conducted by a mutually agreeable arbitrator and/or forum located in the State of Georgia. The Arbitrator shall determine what arbitrator rules shall apply to the Arbitration. Before submitting a Claim to arbitration and as an express condition precedent, you or All Turf must provide written notice to the other party of the Claim and allow at least 30 days for informal resolution through a registered neutral in mediation with the Georgia Office of Dispute Resolution. Any remaining disputes after mediation shall be submitted to Arbitration under the Georgia Arbitration Code. Any demand for arbitration must be made within thirty (30) days which shall be deemed a reasonable time after the dispute has arisen, and it may not, in any event, be made more than one (1) year after the complaining party knew or should have known of the Claim or the facts that form the basis of the Claim. If a party fails to adhere to these time limitations, the claim shall be deemed waived and all recovery shall be barred. You will be responsible for paying your own attorneys’ fees, costs, and expenses no matter what time of dispute resolution is used, and All Turf will be responsible for paying its own attorneys’ fees, costs, and expenses. The arbitration fees and the fees paid to the arbitrator will be paid in accordance with the rules selected by the Arbitrator or as the Arbitrator awards. Any arbitration hearing at which the parties must appear personally will take place in Winder, Georgia. To the fullest extent allowed by law, the arbitrator will not have the power to award special, consequential, punitive, exemplary, or indirect damages against any party. The arbitrator’s power to conduct any arbitration proceeding will also be limited as follows: any arbitration proceeding under this agreement will not be consolidated or joined with any arbitration proceeding under any other agreement, or involving any other property or premises, and will not proceed as a consolidated, class action, or multi-plaintiff action. The foregoing prohibition is an essential and integral part of this arbitration agreement and is not severable. The arbitrator’s decision will be final and binding, and judgment upon the arbitrator’s award may be entered in any court having competent jurisdiction. Neither party will dispute the enforcement of this arbitration agreement, arbitrability of any claims or disputes other than those exempt from arbitration under Georgia law, or the arbitrator’s award other than for the limited reasons set forth in the Georgia Arbitration Code. The Arbitrator shall have total authority to interpret and enforce this provision and the agreement amongst the parties hereto. If either party unsuccessfully disputes the enforcement of this agreement or the arbitrator’s award, then that party shall pay the attorney’s fees and costs actually incurred by the other party.
YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, BUT YOU HAVE CHOSEN VOLUNTARILY AND WITHOUT ANY DURESS, UNDUE INFLUENCE OR COERCION TO HAVE ANY DISPUTES DECIDED THROUGH ARBITRATION. YOUR AGREEMENT TO ARBITRATE WILL SURVIVE THE TERMINATION OF THIS OR ANY OTHER AGREEMENT BETWEEN YOU AND ALL TURF. YOU AGREE THAT YOU HAVE HAD THE OPPORTUNITY TO SEEK INDEPENDENT LEGAL COUNSEL PRIOR TO AGREEING TO THE SERVICES AND THESE TERMS AND CONDITIONS.
Notwithstanding the foregoing requirement for arbitration, any Claim that only seeks money damages of less than $500.00 will be submitted to the Magistrate Court of Barrow County, Georgia, for resolution in lieu of resolution by mandatory arbitration. However, the condition precedent of mediation shall still be applicable prior to the institution of any court case. You irrevocably submit to the personal jurisdiction of the Magistrate Court of Barrow County for such claims and consent to, and will not contest or challenge, the exclusive venue of that court, including without limitation under the theory of forum non coveniens. If the Claim is transferred or appealed from the Magistrate Court of Barrow County, then either party may unilaterally elect to remove the Claim from the judicial process and submit it to mandatory arbitration in accordance with the paragraph above as the parties intend that no dispute shall be litigated in either State, Superior or Federal Courts in the State of Georgia..
15. Entire Agreement. These Terms and Conditions and the information available to you in your customer account access portal, which may be amended from time to time (the “Contract Documents”) set forth the entire understanding and agreement between you and All Turf regarding each party’s respective rights and obligations. The Contract Documents supersede any previous negotiations between the parties, draft documents, or prior agreements, whether oral or written, related to the same subject matter as the Contract Documents. To the extent that any terms set forth in an invoice should conflict with the terms set forth in the Contract Documents, then the Contract Documents will control. No subsequent agreements or understandings, oral or written, that purport to modify the Contract Documents will be binding on the parties unless in writing and signed by you and All Turf. All Turf service representatives shall have no legal authority to alter the Contract Documents or the legal obligations between the parties hereto.
16. Applicable Law. This Agreement will be governed by the laws of the State of Georgia and will be construed and interpreted with its laws, notwithstanding any conflicts of laws principles, or any other rule, regulation, or principle that would result in the application of any other state’s law.
17. Headings. Any headings of paragraphs of this Agreement have been included only for convenience and must not be deemed in any manner to modify or limit any of the provisions of this Agreement or be used in any manner in interpreting this Agreement.
18. Severability. If any term, covenant, or agreement in these Terms and Conditions are held by a court of competent jurisdiction or Arbitrator to be invalid, illegal, or unenforceable, then the validity and enforceability of the remaining terms, provisions, covenants, or agreements will not be affected.
19. Electronic Signatures. You may sign these Terms and Conditions electronically and such electronic signature shall be enforceable to legally bind you to the Contract Documents. You agree and acknowledge that your electronic signature is the legal equivalent of your having signed these Terms and Conditions by hand. To the fullest extent allowed by law, the use of electronic signatures and electronic records, including, without limitation, any contract or other document created, generated, sent, communicated, received, or stored by electronic means, shall have the same legal effect, validity, and enforceability as manually executed signatures or paper-based record-keeping systems. The Contract Documents may be signed in counterparts, and no preference or presumption shall be given to any party based on drafting alone, which the Contract Documents shall be deemed mutually negotiated and drafted. Any ambiguity or inconsistency in the Contract Documents shall be resolved by the plain language interpretation or according to the industry terms applicable to the Services as determined in the sole discretion of All Turf.