• The provisions herein govern the transactions and dealings between Divot Sand and the Customer, whether now or hereinafter occurring, superseding all other communications and agreements between any representative of Divot Sand and Customer, and constitute the entire agreement between Divot Sand and Customer.
• Additional or different terms proposed by Customer and expressed in any form, whether before or after Customer’s receipt of this document, shall not be binding on Divot Sand.
• Divot Sand’s silence shall not constitute consent to any additional or different terms.
• Any changes or additions to this Agreement must be agreed to in writing, signed and dated by authorized representatives of Divot Sand and Customer.

• Payment is due to Divot Sand upon receipt of invoice.
• Customer shall notify Divot Sand in writing within five (5) calendar days of the date of each invoice of any objections.
• Failure of Customer to provide such written notice within the time specified shall result in such services, equipment, and products being deemed accepted, in full accordance with this Agreement, and free of defects, and any objections are deemed waived.
• Should Customer provide such written notice within the time specified, Divot Sand shall, at its sole option, have the right to either:
  
  • attempt to rectify and correct any claimed nonconformity or defect; or
  • cancel this Agreement without further obligation, at which time Customer shall owe Divot Sand for actual costs of labor, materials, equipment, and time incurred on the project.
• Any invoice not paid within thirty (30) days of its due date shall accrue interest at the rate of 1.5% per month.
• Divot Sand shall be entitled to recover from Customer a $500 service charge plus any and all costs and expenses, including but not limited to attorney’s fees at the rate of $350 per hour, court costs, and litigation expenses actually incurred by Divot Sand in enforcing and/or defending its rights under this Agreement.
• The agreed contract price is not subject to reduction based on any error in estimated service area measurements.

Customer acknowledges that newly installed sod, repaired turf areas, divot repairs, seeded areas, patched areas, and treated turf require proper watering, irrigation management, drainage conditions, sunlight exposure, and ongoing maintenance to survive and establish successfully.

Divot Sand does not guarantee the survival, rooting, color, appearance, or long-term health of any sod, repaired turf area, divot repair, seeded area, or treated turf after installation or service completion.

Customer assumes sole responsibility for:

• Proper watering and irrigation;
• Monitoring weather conditions;
• Preventing under-watering or over-watering;
• Ongoing maintenance and care;
• Drainage conditions;
• Soil conditions;
• Insect, fungus, disease, pet, or wildlife damage; and
• Damage caused by traffic, equipment, vehicles, or persons after service completion.

Divot Sand shall not be liable for turf loss, sod failure, discoloration, shrinkage, seam separation, washout, settling, erosion, drought stress, fungus, disease, improper irrigation, acts of nature, or failure of turf to establish after completion of services.

Customer acknowledges that Divot Sand cannot control weather conditions, irrigation practices, soil conditions, shade conditions, drainage, or other environmental factors affecting turf establishment and survival.

Customer acknowledges that settling, shifting, minor imperfections, drainage changes, and turf variations may occur naturally after Subturf Leveling, top dressing, grading, soil modification, or turf repair services.

Because soil conditions, moisture content, drainage, weather, root structure, underground conditions, and turf response are variable and outside Divot Sand’s control, Divot Sand does not guarantee perfectly level surfaces or permanent results.

Customer further acknowledges that natural turf is a living surface subject to:

• Seasonal movement;
• Settling;
• Shrinkage;
• Expansion;
• Rutting;
• Erosion; and
• Wear.

Customer acknowledges that underground conditions may exist which are not visible or known to Divot Sand, including but not limited to:

• Irrigation lines;
• Invisible fencing;
• Drainage systems;
• Shallow utilities;
• Roots;
• Buried debris;
• Construction materials;
• Septic components;
• Cables;
• Landscape lighting; and
• Other underground obstructions.

Divot Sand shall not be responsible for damage to underground items not properly marked, disclosed, or located prior to commencement of work.

Customer is solely responsible for identifying and marking all underground utilities, sprinkler heads, drainage systems, pet containment systems, wires, and related items prior to commencement of work.

Customer shall indemnify and hold Divot Sand harmless from and against any and all claims, demands, costs, and expenses, including attorney’s fees and litigation expenses, arising from:

• The breach of any representation, warranty, covenant, or duty of Customer under this Agreement;
• Customer’s property conditions;
• Damage sustained to property owned by persons other than Customer;
• Any act or omission of Customer or Customer’s agents, contractors, guests, or invitees; and
• Conditions beyond Divot Sand’s reasonable control.

This indemnification obligation does not apply to claims arising solely because of Divot Sand’s gross negligence or willful misconduct.

• Divot Sand is not a manufacturer of any product or goods supplied during services.
• Any warranties on products or materials are limited solely to warranties offered by the manufacturer.
• Divot Sand assumes no liability or obligation with regard to any manufacturer warranty.
• Divot Sand makes no guaranty or warranty of any kind whatsoever, including but not limited to implied warranties of merchantability or fitness for a particular purpose.
• No person or entity is authorized to make any warranty or guaranty on behalf of Divot Sand unless in writing signed by an authorized representative.
• Customer is responsible for feeding, watering, mowing, irrigation adjustment, and maintaining treated areas after services are completed.

• If there are any defects in goods, products, or services, Customer’s sole remedy shall be limited to replacement or correction of the specific defective service or product at Divot Sand’s sole option.
• In no event shall Divot Sand be liable for:
  
  • Loss of income or profits;
  • Business interruption;
  • Pecuniary losses;
  • Loss of turf or landscaping;
  • Incidental damages;
  • Indirect damages;
  • Special damages;
  • Consequential damages; or
  • Punitive damages.
• Divot Sand shall not be responsible for:
  
  • Acts of nature;
  • Weather;
  • Drought;
  • Excessive rainfall;
  • Soil conditions;
  • Drainage issues;
  • Fungus or disease;
  • Pest damage;
  • Existing turf conditions;
  • Improper irrigation; or
  • Conditions outside Divot Sand’s control.

Customer represents, warrants, and covenants that:

• Customer has authority to enter into and perform obligations under this Agreement;
• All information provided to Divot Sand is true and accurate;
• Property boundaries and underground utilities have been properly disclosed and/or marked;
• Customer understands that turf, sod, and landscaping are living materials affected by environmental conditions beyond Divot Sand’s control.

Customer acknowledges that Divot Sand relies upon the truth, accuracy, and completeness of Customer’s representations.

Each of the following constitutes a Customer default:

• Failure to pay amounts due;
• Breach of any warranty or provision herein;
• Insolvency or cessation of business operations;
• Bankruptcy filing by or against Customer.

Upon default, Divot Sand may:

• Accelerate all unpaid amounts;
• Recover all sums due;
• Suspend services;
• Remove Divot Sand property or equipment; and
• Pursue any other remedies available at law or equity.

Unless Customer provides written notice to the contrary before commencement of services, Customer grants Divot Sand permission to photograph and/or video portions of the project area before, during, and after completion of services for documentation, training, advertising, website, social media, and marketing purposes, provided no personal identifying information or street address is disclosed.

• Notices shall be in writing and sent by certified mail to the addresses provided by the parties.
• Divot Sand shall at all times act as an independent contractor and not as an employee, agent, partner, or joint venturer of Customer.
• Customer may not assign this Agreement without written consent of Divot Sand.
• This Agreement shall be governed by the laws of the State of Georgia.
• Rights and remedies afforded Divot Sand are cumulative and in addition to any rights available under law or equity.
• No waiver of any term shall be effective unless in writing signed by an authorized representative of Divot Sand.
• Customer consents to jurisdiction and venue in Cobb County, Georgia for any dispute arising under this Agreement.
• If any provision of this Agreement is deemed unenforceable, the remaining provisions shall remain in full force and effect.