TERMS AND CONDITIONS

PAYMENTS

As fair and adequate consideration for the completion of the Services, Client shall timely pay to Whitmores the agreed upon amount ("Grand Total") in the written and accepted Proposal in accordance with the terms and conditions herein set forth. Upon acceptance of the Proposal, Client agrees to pay Whitmores the deposit amount of the Grand Total. Upon substantial completion of phases of the Proposal, as determined by Whitmores, Whitmores will invoice the Client, and Client shall promptly pay, the progress payments. When the Proposal has been completed, final payment is due, plus any additional costs and minus any deductions pursuant to any authorized Change Work Orders and Estimates. Client shall pay each invoice upon receipt of the invoice. If payment is not made when due, Whitmores may suspend work on the Premises until such time as all outstanding payments that are due have been paid in full. If payment is not made within 15 days, interest shall accrue on any unpaid balance at a rate of 1.5% per 30 days (18% APR) and will likewise be due and owed by Client. Client agrees to pay all costs incurred by Whitmores for the cost of collecting any remaining balances, including reasonable attorney’s fees. No warranties will be issued until the final payment, plus additional costs and interest if applicable, has been received in full. Notwithstanding the foregoing, the Client will be ineligible for any warranties or guarantees offered by Whitmores if any payment that becomes due is not paid in full within 30 (thirty) days from the date of the invoice. Whitmores accepts payment on all major credit cards, check, wire transfer, and cash. Credit card transactions are subject to a 3% convenience fee.


CHANGES

Circumstances may arise beyond the control of Whitmores that may prevent execution of the written and accepted Maintenance Proposal as planned. Whitmores will make reasonable efforts to minimize the impact on the design, construction, use, landscape health and maintenance. Client acknowledges this possibility and accepts the action or inaction Whitmores will take to minimize the potential change. If Client wishes to change any part of the Proposal after this agreement is signed, which results in additional material or labor costs for Whitmores or results in delays in the completion of the Proposal, said costs will be added to the remaining balance of the written and accepted Proposal and billed as part a part thereof. Additional charges may apply.

 

ESTIMATES

All unsigned Proposals expire after 15 days. Whitmores will use industry standard efforts to accurately estimate the cost of materials and labor required to complete the Proposal and will make reasonable efforts to complete the written and accepted Proposal. However, the Client acknowledges that there may be differences between the written and accepted Proposal and the final cost. If the actual cost is less than the estimated Grand Total, that amount will be discounted on the final payment due Whitmores. If the actual cost is more than the estimated Grand Total, that additional amount will be added to the final payment due Whitmores. Such additional amount includes the cost of any overtime labor that accrues in order to complete the Proposal in a timely manner.

 

The Client will promptly pay Whitmores that additional amount. Rates are based on the present cost and availability of fuel, freight, equipment, labor and materials. In the event of cost increases due to reasons beyond the Contractor's control, all pricing and rates set forth in the Agreement are subject to increase. Notwithstanding the foregoing, Client will not be responsible for the cost of any overtime labor or material increases that accrue as a result of a delay caused by Whitmores.

 

ADMINISTRATION AND DESIGN TIME

Time spent performing administrative and design work may be expected as part of Whitmores fulfilling our contract. Based on a Proposal’s scope, Whitmores assumes a reasonable/typical amount of hours spent on these tasks and the costs related to those preset hours are not charged as fees to the Client. On occasion, time exceeding reasonable hours may be necessary to cover change orders, overtime, design changes, logistics, meetings, walk-throughs, or other project needs, the Client is responsible for the cost of these additional hours. A maximum of 30 minutes of administration per week is included in this Proposal. Additional administrative time exceeding these hours will incur additional fees at a rate of $85 per hour. Any design time will be charged at a rate of $165 per hour. Client or client's representative is entitled to 30 minute in-person , phone, or video meeting for the purpose of Project review/status weekly with the assigned Whitmores representative per active working week of Proposal. Any Proposal review/status meeting time spent greater than 30 (thirty) minutes a week may be billed as additional fees.


PROPERTY ACCESS 

The Client acknowledges and agrees that all services provided under this Proposal are contingent upon unrestricted access to the property as scheduled or outlined in the maintenance proposal. The Client shall ensure that all necessary permissions, access points, and clearances are provided for the Contractor to perform the agreed-upon services.

The Client understands that certain factors beyond the Contractor’s control, including but not limited to client use of the property, the presence of other contractors /tradesmen/service providers, adverse weather conditions, safety concerns, or unforeseen circumstances, may limit, delay, or prevent the Contractor from performing services in a timely manner, or at all. In such cases, the Contractor shall not be held liable for any failure or delay in service performance due to restricted access or other external factors.

If access to the property or specific areas is denied or otherwise unavailable, the Contractor will make reasonable efforts to reschedule the service at a mutually agreed-upon time. However, repeated inability to access the property may result in service delays, modifications to the service schedule, or potential cancellation of specific services without refund or penalty to the Contractor.

The Client agrees to communicate any anticipated access restrictions as soon as possible to minimize disruptions and allow for necessary scheduling adjustments.

PREMISES

Client must provide adequate/reasonable on-site parking and loading/unloading areas for Whitmores’ vehicles, equipment, material, and storage space for Proposal material including landscape construction products. With appropriate notice, Whitmores may ask for, and the client must provide, storage space for living plants, which Whitmores will care for on site. Whitmores is not responsible for the safety or security of any materials left on a Premises during non-work days or hours. Client must provide adequate and unimpeded site access to premises areas in order to facilitate the efficient delivery, use, and installation of equipment and materials. The cost of any necessary parking permits or other parking accommodations will be the responsibility of the Client.


Limitation of Liability for Existing Landscape Items

The Client acknowledges and agrees that any artwork, hardscape, furniture, fountains, or other decorative or functional items left in the landscape during scheduled maintenance may be subject to incidental contact or environmental exposure as part of normal maintenance activities. The Contractor shall exercise reasonable care when performing services; however, the Contractor shall not be held liable for any damage, movement, discoloration, or deterioration of such items resulting from:

  1. Routine maintenance operations, including but not limited to mowing, edging, trimming, pruning, debris removal, pressure washing, or irrigation adjustments.

  2. Contact with maintenance equipment, tools, or materials used in the performance of contracted services.

  3. Natural weathering, wear and tear, or deterioration due to outdoor exposure.

  4. Improper securing, placement, or maintenance of such items by the Client.

It is the Client’s responsibility to remove, secure, or protect any items of value prior to scheduled maintenance services. In the event that an item requires special handling, the Client must provide written notice to the Contractor in advance, and additional charges may apply for any accommodations made outside of standard maintenance procedures.

Landscape Maintenance and Installation Liability Clause

The Contractor shall take reasonable care when installing and maintaining plant pots, gardens, or planted areas that require access to interior spaces, decks, patios, or other areas on the property. However, the Client acknowledges that such activities may require the use of staff, plant materials, tools, equipment, and machinery that could inadvertently cause minor damage, wear, or other impacts to these areas.

To the extent permitted by law, the Contractor shall not be held liable for:

  1. Pre-existing Conditions: Damage, deterioration, or wear to interior spaces, decks, patios, railings, or other access areas.

  2. Incidental Damage: Minor scratches, scuffs, soil stains, or other incidental impacts caused by the normal performance of work, provided the Contractor has exercised reasonable care.

  3. Structural or Surface Impact: Impacts to structural integrity or surface conditions (e.g., settling, cracking, or wear) caused by the weight or movement of equipment, plant materials, or staff, unless due to gross negligence by the Contractor.

  4. Unforeseen Conditions: Damage or complications resulting from conditions beyond the Contractor’s control, including but not limited to weather, unstable surfaces, or access constraints.

The Contractor shall inform the Client of any potential risks to access areas prior to commencing work and will take reasonable steps to minimize disruptions or impacts, including the use of protective materials when practical.

If the Client has specific concerns regarding high-value or delicate surfaces, fixtures, or structures, it is their responsibility to notify the Contractor in advance and arrange additional precautions or accommodations, which may incur additional charges.

The Contractor’s liability for damages, if any, shall be limited to the cost of repair or replacement, at the Contractor’s discretion, and shall not exceed the total value of the specific service performed. 


PLANT MATERIAL PRICE CHANGES

All plant pricing and availability are subject to change. In the event of a change in supplied materials from the original agreement in quantity, description or cancellation by the Client or their appointed representative, Whitmores requires payment for the original plants if already deposited or secured by Whitmores, in addition to the cost of the new plants. 

PLANT MATERIAL WARRANTIES

Whitmores strives to provide the highest quality plant material available to meet the Proposal prices and will offer a one-time-only replacement of any full-priced tree, shrub, evergreen, or woody vine sold and installed by Whitmores that has died within one (1) year from the date of installation, provided the plant has been cared for as instructed, and not misused.

 

Whitmores will not replace plants killed by animals, rodents, insects, disease/blights, mechanical damage, neglect, natural disasters, or other reasons over which Whitmores has no control. Whitmores will not replace plants that skip a flowering cycle or have suffered in appearance but are capable of recovering. Whitmores will not replace transplanted plants, plants installed by others, or plants purchased at a discount, promotion, or sale.

 

This warranty does not cover annuals, small perennials, ground covers, grasses, hydrangeas, buddleia, wildflowers, seeds, bulbs, and non-winter hardy plants. This warranty excludes any plant materials requested by the Client and procured from vendors other than the Company. Whitmores is not liable for plants infected with “boxwood blight” or “beech leaf disease”. An additional labor charge for plant removal and reinstallation will apply. Replacement plants are not warrantied. Care and watering of all plant material become the responsibility of the client after the installation.

 

Any repairs/replacements made to any installation after the expiration of any warranty offered by Whitmores in accordance with this Proposal will be made at Client’s expense. Any repairs made to any installation by any party at any time other than Whitmores voids any warranties

ROSES & PERENNIALS

Whitmores will make reasonable commercial efforts to provide the type (genus, species, variety) and quantity of roses and perennials specified on the plan by the delivery date, provided that starter plants are available in the US nursery trade. Whitmores will not be held responsible if by delivery date, roses and perennials become unavailable or suffer from crop failure, disease, or acts of God. Whitmores will grow roses and perennials with the goal of providing the healthiest plant for transplant and establishment. 

IRRIGATION 

 Rotary sprinkler heads, pop-up sprinkler heads, controllers, valves, underground pipes, and fittings purchased and installed by Whitmores have a warranty of 100% of the wholesale purchase price for one (1) year from the date of installation, not including labor. A labor fee will be charged for any products replaced due to manufacturer’s defects. No labor fee will be charged for warranty issues caused by faulty workmanship. Warranty does not cover (1) vandalism, (2) Acts of God (flood, wind, snow, etc.), (2) damage caused by construction, (3) damage or malfunction caused to an existing irrigation system as a result of the installation; (4) dry patches on lawn due to plant growth, or (5) modifications or repairs done by anyone other than a Whitmores employee.

Irrigation Monitoring 

The Client understands that any adjustments, repairs, or replacements identified during the monitoring process are not included in the standard monitoring service and will be billed separately at the Contractor’s prevailing time and materials rates. Any necessary repairs or modifications will be communicated to the Client prior to execution, except in cases where immediate action is required to prevent further damage or system failure.

The Contractor shall not be held responsible for any damages or landscape deterioration resulting from irrigation system failures, malfunctions, or delays in obtaining Client approval for necessary repairs.

PLANT HEALTH CARE “PHC”

PHC treatments are intended to improve plant health; however, results may vary based on environmental conditions, plant species, and external stress factors. Pest and disease control treatments are designed to manage but may not completely eliminate infestations. Treatments outlined in Proposals and Estimates are recommended at the time of observation but treatment plans may change at the time of service based on current conditions. Service appointments are scheduled in advance. Any rescheduling must be requested at least 48 hours in advance. Cancellations with less than 48 hours’ notice may be subject to a cancellation fee. In the event of inclement weather, services may be postponed and rescheduled at no additional chargers. Services are performed based on the Proposal schedule and plant care plan tailored to the Client's landscape.

LAWN INSTALLATION

Whitmores installs seeded and sodded lawns according to common industry practices. Whitmores guarantees its sodded lawn against problems arising from fungus and/or other diseases for a period of fourteen (14) days from the date of installation. Whitmores guarantees its seeded lawn against problems arising from fungus and/or other diseases for a period of three (3) months from the date of installation if a standard lawn care program is in place within fourteen (14) days from the date of installation and is executed by a New York State Licensed Applicator. Upon request, Whitmores will advise on the correct seasonal/calendar period or weather conditions for planting seed or sod. Any planting conducted outside of the stated time periods will not be protected by a guarantee. Whitmores makes no other guarantee to Client about seeded and/or sodded lawns. Upon installation, Whitmores will set the irrigation clock and agrees to oversee watering the lawn for a period of fourteen (14) days, thereafter, watering the lawn will be the sole obligation of the Client. Notwithstanding the foregoing, Whitmores will not guarantee a lawn if the irrigation clock is manually turned off, or there is a power failure or other irregularity which interrupts the ability of the irrigation system to fully function. Repairs done on a seeding or sod project are done at the expense of Client. Whitmores does not accept responsibility for settling due to new construction, utility lines or any other excavations not performed by or supervised by Whitmores.

Overseeding and Variable Service Costs 

The Client acknowledges that overseeding is an estimated service, and actual seed rates and treated areas may vary based on site conditions at the time of service, property use, and other unforeseen factors. The estimated costs provided reflect the Contractor’s best assessment of typical seed rates and coverage areas at the time of the proposal.

In the event that more or less seed is required, or if the area to be overseeded is expanded or reduced, the final invoice will be adjusted accordingly to reflect the actual materials used and the area treated. The Client agrees to these potential cost adjustments and understands that the final billing will be based on actual work performed rather than initial estimates.

If additional overseeding or sod installation becomes necessary due to unexpected use of the property, environmental conditions, or other external factors beyond the Contractor’s control, such additional services will be billed separately.

TREE CARE

Tree Support Systems including cabling, bracing, and props: Cabling, bracing and props are supplemental support systems intended to mitigate, but not eliminate, the risk of limb or tree failure due to structural defects. These support systems do not permanently correct structural weaknesses and are not guaranteed to prevent breakage or tree failure. Regular inspection and maintenance are required to ensure continued effectiveness, and the Client is responsible for scheduling periodic inspections.

Recreational Features: Whitmores does not recommend recreational features be added to trees as such features may not be manufactured or suited for the intended use and unpredictable forces created on the tree. Whitmores assumes no responsibility for consequences. 

Tree Removals & Tree Pruning: Work to be performed is to meet the present goals of the Client in accordance with current industry standards. Trees and shrub material may need follow-up care to maintain expectations. 

Stump Grinding: Prior to work Whitmores will schedule a utility markout with the cost to be incurred by the Client. Work to take place will be ground level and the Client understands stump grinding presents a tripping hazard if left unattended.  Whitmores is not required to remove grinding material debris in excess below grade or to fill the stump ground hole with top soil unless specified with the Client. Foreseen and Unforeseen foreign objects found while stump grinding may incur additional costs. Examples may include but not limited to electrical wire, man-made grates, tree lighting, irrigation lines. Whitmores is not required to reinstall correctly after the stump removal process unless specified with the client. 

Tree Risk Assessments: Client and Whitmores agree to provide a level I or II tree risk assessment in accordance with industry standards. Level III tree risk assessment to be performed by additional consulting arborist. Client understands that any ratings or recommendations for mitigating risk are based on known and detectable defects, conditions, and factors, at the time of assessment. Risk ratings are intended to assist Client with understanding the potential for a tree part failure, and are not meant to declare a tree or tree part safe. Client assumes the responsibility for continuous inspection. Prepared consulting reports prepared for Client are not to be reused or distributed in any manner other than that of the receiving client without written permission of Whitmores. Recommendations in reporting are in Whitmores’ best regard. 

Maintenance Pruning Programs: Inspections conducted during on-going work are for the purpose of evaluating tree & shrub growth  and determining appropriate practices. These are not safety inspections or tree risk assessments. Whitmores does not assume the liability of inspecting, identifying, or correcting hazards/safety issues on or near Client’s property. Tree risk assessments are not included during the course of any ongoing maintenance pruning program unless specific communication with the client about specific tree and/or shrubs. 

Trees in Poor Health or Severe Decline: The Client understands that if a tree is in poor health or severe decline that Whitmores cannot predict how the tree will respond to recommended services. Whitmores is not able to prevent the tree from getting worse. 

Tree Lighting Installation and Maintenance: Whitmores may be hired to install tree lighting as per a plan set forth by a lighting or electrical contractor or designer. Whitmores accepts no responsibility of outcome, aesthetics or adverse impact on the plant resulting from the implementation of the lighting system. Whitmores may maintain the lighting system to commercial industry standards or according to the care plan provided by the lighting or electrical contractor. 

Plant/Tree/Stump Identification & Liability: The Client is responsible for accurately identifying any plant, tree, or stump that is to be serviced. If a plant, tree, or stump is mistakenly identified by the Client as belonging to the Client, whether knowingly or unknowingly, the Client agrees to indemnify and hold Whitmores harmless from any liability, damages, or costs incurred due to alteration or removal of such plant, tree, or stump.

Nature of Trees & Plants – No Warranty: Trees and plants are living organisms subject to environmental factors beyond human control, including but not limited to weather, disease, pest infestation, and soil conditions. Accordingly, Whitmores makes no express or implied warranties or guarantees regarding the health, longevity, safety, or condition of any tree, plant, or landscape.

Treatment Disclaimer: Whitmores does not guarantee the effectiveness or success of any tree or plant treatment. Any treatment recommended is based on the condition of the tree or plant at the time of evaluation and is provided as a best practice for potential improvement. The Client acknowledges that results may vary, and no warranties, expressed or implied, are given.

Potential Property Damage from Machinery & Equipment: Certain services, including tree removal, stump grinding, or other tasks requiring heavy machinery, may result in unintended damage to lawns, garden beds, hardscapes, driveways, or other surfaces. While Whitmores will take all reasonable precautions to minimize damage, the Client acknowledges and accepts the inherent risk of such work and releases Whitmores from liability for incidental damage.


PERMITS & INSPECTIONS 

The Client is responsible for securing all necessary jurisdictional approvals and permits. At the Client’s request, Whitmores may assist in securing jurisdictional approvals and permits. Unless specified in writing, Whitmores is not responsible for remediating code violation(s) created at Client's request or previously existing. The Client is responsible for all fees required to secure jurisdictional approvals and permits for the project.

 

Whitmores has no obligation hereunder to be on site during any inspections conducted by a municipality or private entity.


BOUNDARY LINES

Whitmores is not charged with notice of the location of a Premises’ boundary lines. Client is responsible for properly defining and staking the boundary lines. In Whitmores' sole discretion, and at Client's expense, client may be required to retain a licensed land surveyor to properly define the boundary lines of the Premises. The cost to relocate any product, materials, structure(s) or otherwise that is installed on a neighbor's property by Whitmores shall be at the expense of the Client. At Whitmores' discretion and at Client's sole cost, a professional mark-out of all underground utilities will be performed. Whitmores is not responsible for damage to underground utilities, including sprinkler systems, gas, or electric.

 

DELAYS

Whitmores is not responsible for delays caused by weather, acts of God, permitting, delays caused by other companies, or other unforeseeable causes. Delays at the Premises may cause the Project to be rescheduled and additional charges, including the cost of any overtime incurred by Whitmores' employees, may be made in certain circumstances. If installation occurs past the estimated maintenance schedule, season or Premises’ schedule, Client will be responsible for any material or labor rate increases, and material may not be warrantied. 

  

Contractor shall not be liable for any failure, hinderance, or delay in performing any obligation under this contract that is due to the following causes, without limitation: acts of God, accidents, riots, war, terrorist acts, epidemics, pandemics, quarantine, governmental order, acts or omissions, changes in laws or regulations, civil commotion, natural catastrophe, strikes, generalized lack of availability of labor, raw materials or energy, changes in market prices or conditions, any cause whatsoever that is beyond the control of Contractor. Furthermore, where there is a delay outside the control of the parties due to unavailability of goods, delay in delivery, or other unforeseen or remote contingencies, the parties agree such a delay is not considered a breach of the Agreement. The parties agree to use commercially reasonable efforts to perform the contract under the deadlines allowable by the market.

 

Contractor’s performance will be excused, and the Contractor will not be liable for any failure to perform under this Contract, when Contractor is unable, despite diligent efforts to do so, to obtain raw materials and supplies on terms Contractor deems commercially acceptable.

 

PHOTOGRAPHY 

Whitmores shall be permitted to photograph the Premises and to use the photographs for any professional purpose of Whitmores. Whitmores shall not disclose the name and/or identity of the Client or the street address of the Premises as related to the photographs of the Premises without the express written consent of the Client.

 

NOTICE OF LIEN RIGHTS

Any contractor, subcontractor, or materialman who provides home improvement goods or services pursuant to your home improvement contract and who is not paid may have a valid legal claim against your property known as a mechanic's lien. Any mechanic's lien filed against your property may be discharged. Payment of the agreed-upon price under the home improvement contract prior to filing of a mechanic's lien may invalidate such lien. The owner may contact an attorney to determine his rights to discharge a mechanic's lien.

 

WAIVER

The failure of either party to enforce any right accruing under this Agreement shall not be construed as a continuing waiver of a subsequent right of such party to enforce the same or any other right, term or condition.

 General Liability & Indemnification

 The Client agrees to indemnify, defend, and hold harmless the Company and its employees, agents, and subcontractors from any claims, liabilities, damages, or expenses arising out of or relating to the services provided, except in cases of gross negligence or willful misconduct by the Company.

VENUE

This Agreement shall be construed, governed, interpreted and enforced in accordance with the laws of the state of New York. Any suit or proceeding hereunder shall be brought exclusively in any state or federal court located in the County of Suffolk, State of New York, having jurisdiction. Each party consents to the personal jurisdiction of said state and federal courts and waives any objection that such courts are an inconvenient forum. 


ATTORNEY'S FEES AND DISBURSEMENTS

Client agrees to pay all costs and expenses incurred by Whitmores to enforce the terms of this Agreement, including reasonable attorney's fees, costs and disbursements.

 

PERSONAL GUARANTEE

The Client’s obligations for payments and other terms of Client’s performance under this contract are personally guaranteed, without limitation, by the individual signatory below.


Confidentiality and Non-Disclosure Clause

The Client agrees that this Agreement, including all terms, conditions, and any related documents, is strictly confidential. The Client shall not disclose, distribute, or share any part of this Agreement, including its contents, terms, or any related proprietary or sensitive information, with any third party, except:

  1. As required by law or legal process, provided that the Client gives prior written notice to the other party and takes reasonable steps to protect the confidentiality of the disclosed information.

  2. To the Client’s employees, agents, or subcontractors who have a legitimate need to know such information for the purpose of executing this Agreement, provided that they are bound by confidentiality obligations at least as restrictive as those set forth herein.

The Client further agrees to take all reasonable precautions to prevent unauthorized disclosure, reproduction, or use of the Agreement and its contents. Any unauthorized disclosure or breach of this provision shall constitute a material breach of this Agreement and may result in legal action, including but not limited to injunctive relief and damages.

This confidentiality obligation shall survive the termination or expiration of this Agreement for a period of (1) one year or 365 days.