Terms and Conditions

TERMS AND CONDITIONS OF WEBSITE USE 

This website is operated by SSS Down to Earth Opco, LLC (”Down to Earth”). By using this website, you agree that your use of this website is subject to these terms and conditions, as well as all applicable laws, as governed and interpreted pursuant to the laws of the State of Ohio, United States of America.

Down to Earth may revise these terms and conditions at any time by updating this posting.

DISCLAIMERS

All materials at this website are provided “AS IS” without warranties of any kind including warranties of merchantability, fitness for a particular purpose, or non-infringement of intellectual property. The information and materials on this website are provided for general informational purposes only, and are intended only for your personal, non-commercial use. Down to Earth tries to ensure that these materials are useful, accurate, and current.

LIMITATION OF LIABILITY

In no event will Down to Earth, or its employees, directors, officers, agents, vendors or suppliers be liable for any direct or indirect losses or damages arising out of or in connection with the use or inability to use this website, including, without limitation, those resulting from lost profits, lost data or business interruption, and whether based on warranty, contract, tort or any other legal theory, and whether or not Down to Earth has been advised of the possibility of such losses or damages.

LINKS TO THIRD-PARTY WEBSITES

Down to Earth does not endorse or make any representations about links on this website to third-party websites, or any information, software or other products or materials found there, or any results that may be obtained from using them.

These terms and conditions apply in all cases except where a specific, written agreement is reached between Seasons Service Select LLC, dba Down to Earth (“Company”) and a Client (“Customer”). When in any doubt (lack of written agreement, conflicting agreements, uncertainty around which terms apply), these terms and conditions supersede any other terms.

  1. Term.
    Company shall furnish all labor, materials, and necessary equipment to maintain the grounds at a property. The Agreement shall automatically renew for additional one (1) year periods (“each a “Renewal Term”) unless sooner terminated as provided in Section 9 herein, or if terminated by either party ninety (90) days prior to the expiration of the Initial Term or any Renewal Term. Price provided in any agreement is good for 30 days.
  2. Scope of Work.
    Company shall use its best efforts to perform the Service. Except as specifically designated in the agreement, Company will perform industry standard services and performance. Invasive species of grass or insects may be addressed at an additional cost to the Client.
    • Late Payments.
      Any unpaid balance will bear interest at a rate of 1.5% per month (18% per year). The unpaid balance shall be determined by taking the beginning balance of the account for each month, adding any new charges and subtracting any payments made to the account. In the event payment remains past due for a period in excess of ten (10) days, Company’s obligations under this Agreement will be suspended until payment is made in full. Customer shall reimburse Company for all costs and expenses reasonably incurred by Company in collecting past due amounts, including attorneys’ fees and court costs.
    • Price Increases.
      The Monthly Fee shall increase every twelve (12) months (the “Anniversary Date”) by the greater of i) 4% or ii) a percentage equal to the percentage change in the Consumer Price Index statistics published by the United States Bureau of Labor. Comparisons shall be made using the index entitled, “Selected Areas/All Items and Major Group Figures for all Urban Consumers for Tampa-St. Petersburg-Clearwater, FL” or the nearest comparable data on changes in the cost of living, if such index is no longer published. The change shall be determined by comparison of the figure for the date twelve (12) months earlier, with that of the Anniversary Date, and shall be rounded to the nearest ten (10) dollars. Company reserves the right to increase the Monthly Fee at contract renewal or due to Force Majeure events with thirty (30) days prior written notice to Customer.
    • Fuel Surcharge.
      Six months after the start of the Agreement, Customer agrees to pay Company a monthly fuel surcharge to the extent the fuel price exceeds $3.25 per gallon, as reported at Florida Regular Conventional Retail Gasoline Prices.  Each $0.50 incremental rise in fuel price will result in a 1% fuel surcharge (Example: If fuel price is $3.55 per gallon, the fuel surcharge will be 1% of the total amount invoiced). If the fuel price drops below $2.75 per gallon, Customer will receive a 1% reduction in the total amount invoiced for each $0.50 incremental reduction in fuel price. Adjustments will be applied to invoices each month, as applicable.
  3. Price and Payment Terms.
    Customer shall pay Company the agreed upon amounts (the “Monthly Fee”). On approximately the first (first) day of each month, Company shall tender to Customer an invoice for services rendered during the current month, which shall be paid by Customer within 30 days of the date of the invoice (Net 30 terms). Customer shall not be entitled to reduce or offset any payments owed to Company hereunder for any reason. A processing fee of 2.75% will be added to all credit card transactions and a fee of $25 per invoice added if additional administrative work is required beyond sending an invoice (payment applications, releases, etc.)
  4. Indemnification.
    Company shall indemnify and hold harmless Customer from any and all injuries, damages, causes of action or claims to the extent they are caused by negligent or intentional acts or omissions on the part of Company, its agents, subcontractor, employees, or others acting on behalf of Company, in the performance of its obligations under this Agreement. Customer is required to notify Company within 30 days of the date Customer is notified or discovers any potential claim, cause of action, or damages potentially caused by Company.
  5. Insurance.
    Company    , for itself, its subcontractors, agents, and employees, shall maintain the following insurance coverage throughout the duration of this Agreement:
    • Commercial general liability insurance with a minimum combined single limit of liability of $1,000,000 per occurrence and $2,000,000 aggregate for bodily injury and/or death and/or property damage and/or personal injury.
    •   Pollution liability insurance with a limit of liability of $1,000,000 per each incident and $2,000,000 aggregate; and
    • Workers’ compensation insurance on behalf of each of its employees or laborers working on the property in accordance with all applicable laws. Company shall deliver to Customer an insurance certificate evidencing such insurance prior to the signing of this Agreement.
  6. Standard of Performance.
    Company     shall use due care, skill, and diligence in the performance of its obligations under this Agreement and shall perform all its obligations in its best workmanlike manner and in accordance with the accepted standards for professional landscape contractors in the state of Florida. All materials used in performing any obligation under this Agreement shall be of first quality and shall be used strictly in accordance with the manufacturer’s specifications.
  7. Time.
    Time is of the essence in performing the obligations under this Agreement. In the event that performance by Company shall be interrupted or delayed by any occurrences outside Company’s commercially reasonable control, including but not limited to acts of God, inability to secure labor and/or products, and rules, regulations or restrictions imposed by any government or governmental agency, Company shall be excused from such performance for such a period of time as is reasonably necessary after such occurrence to remedy the effects thereof.
  8. Independent Contractor Relationship.
    All work performed by Company under this Agreement shall be as an independent contractor, and in no way shall Company be considered an employee of the Customer.
  9. Termination.Given the nature of the work contemplated by this Agreement, the parties acknowledge that conditions change due to the natural growing cycle, weather patterns, wear and tear of the grounds, and other causes, both foreseen and unforeseen.  Company may terminate this Agreement immediately if Customer fails to cure a payment default within fifteen (15) days of receipt of notice of such from Company. Either party may terminate without cause with sixty (60) days’ prior written notice. If Customer terminates this Agreement without cause prior to end of the current term, Customer will pay to Company at time of termination notice (i) all amounts owed to date for services performed, (ii) reimbursement of any provided incentives, and (iii) an amount equal to the Fees remaining through the end of the current term. For all notices, Customer must notify Company in writing via certified mail and via e-mail to the address in section 10 Notices. In the event of any termination, all outstanding amounts through the end of the term are immediately due and Company has the obligation to perform through the end of the remaining period.
  10. Notices.
    Any notice required to be sent to the Customer or Company under this Agreement shall be sent to the parties at the following address unless otherwise specified:
    DTE: Down to Earth
    [email protected]

    500 Winderley Place
    Suite 222
    Maitland, FL 32751
    Phone: 321-263-2700
    Fax: 352-385-7229
    www.dtelandscape.com
  11. Governing Law and Binding Effect; Venue.
    This Agreement and the interpretation and enforcement of the same will be governed by and construed in accordance with the laws of the State of Florida and will be binding upon, inure to the benefit of, and be enforceable by the parties hereto as well as their respective heirs, personal representatives, successors, and assigns. The venue for all actions arising from this agreement shall be located within the applicable Florida county of the property address.
  12. Integrated Agreement, Waiver and Modification.
    This Agreement represents the complete and entire understanding and agreement between the parties hereto with regard to all matters involved in this transaction and supersedes any and all prior or contemporaneous agreements, whether written or oral. No agreements or provisions, unless incorporated herein, will be binding on either party hereto. Notwithstanding the foregoing, these terms and conditions are subject to change, and the terms and conditions in effect at the time of each new order or delivery shall be those on this website at the time of such order or delivery.
  13. Litigation and Attorneys’ Fees.
    In the event that it is necessary for either party to this Agreement to bring suit to enforce any provision hereof or for damages on account of any breach of this Agreement or of any warranty, covenant, condition, requirement or obligation contained herein, the prevailing party in any such litigation, including appeals, will be entitled to recover from the other party, in addition to any damages or other relief granted as a result of such litigation, all costs and expenses of such litigation and reasonable attorneys’ fees.
  14. Severability.
    Each provision of this Agreement is severable from any and all other provisions of this Agreement. Should any provision of this Agreement be for any reason unenforceable, the balance shall nonetheless remain in full force and effect, but without giving effect to such provision.
  15. No Third-Party Beneficiaries.
    The parties hereto intend that this Agreement shall not benefit or create any right or cause of action in or on behalf of any person other than the parties hereto. No future or present employee or customer of either of the parties nor their affiliates, successors or assigns or other person shall be treated as a third-party beneficiary in or under this Agreement.
  1. Price and Payment Terms.
    Seasons Service Select, DBA as Down to Earth Landscape and Irrigation (“DTE”), reserves the right, by giving prior written notice to Customer, to increase the Price to reflect any material increase in the cost of labor to DTE due to schedule changes beyond DTE’s reasonable control. A processing fee of 2.75% will be added to all credit transactions.  Payment due date is described on the invoice, generally non-recurring work is due on completion (invoice date), and recurring work reflects customer terms by default 30 days.
    • Late Payments.
      Any unpaid balance will bear interest at a rate of 1.5% per month (18% per year). The unpaid balance shall be determined by taking the beginning balance of the account for each month, adding any new charges and subtracting any payments made to the account. In the event payment remains past due for a period in excess of ten (10) days, DTE’s obligations under this Agreement will be suspended until payment is made in full. Customer shall reimburse DTE for all costs and expenses reasonably incurred by DTE in collecting past due amounts, including attorneys’ fees and court costs.
    • Fuel Surcharge.
      Customer agrees to pay DTE a monthly fuel surcharge to the extent the fuel price exceeds $3.25 per gallon, as reported at Florida Regular Conventional Retail Gasoline Prices.  An adjustment to the fuel surcharge will be made based on a monthly review (the “Review Period”) of the fuel price. The fuel surcharge shall be based on the average fuel price from the preceding three (3) month period) (the “Indexed Fuel Price”), and implemented at the beginning of the next calendar month. Adjustments will be applied or removed as of each Review Period. Each $0.50 incremental rise in the fuel price will result in a 1% fuel surcharge (Example: If Indexed Fuel Price is $3.26-$3.75 per gallon, the fuel surcharge will be 1% of the total amount invoiced.  If Indexed Fuel Price is $3.76-$4.25 per gallon, the fuel surcharge will be 2% of the total amount invoiced).
  2. Inspection and Notice.
    Upon notification of completion by DTE, Customer will have fourteen (14) business days to inspect and evaluate the Work to determine that the Work has been performed in a workmanlike manner and pursuant to the terms and conditions of this Agreement. Within this period, Customer shall notify DTE of any defects in the Work, and DTE shall have fourteen (14) business days to cure any such defects. Payment is due per terms, independent of any defects and cure required.
  3. Force Majeure.
    If a party is unable to perform or is delayed in the performance of its obligations due to acts of God, natural weather disasters, fire, explosion, flood, war, civil disturbance, terrorism, or any other cause beyond that party’s control (each a “Force Majeure”), such nonperformance shall not be an event of default under this Agreement. In the event of a Force Majeure, the non-performing party shall give the other party prompt written notice describing the particulars of the Force Majeure and the potential duration of the interruption of performance; the excuse of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure; and the non-performing party shall use all reasonable efforts to remedy its inability to perform and the performance shall be resumed at the earliest practicable time after cessation of such interruption.
  4. Warranties.

    1.  Nursery Stock

      All plant life, annuals excluded, is warranted to be of the variety and type described and to be alive and remain alive for a period of:

      Perennials, plants, and shrubs, 1 gallon and larger: 180 days from date of installation if maintained by DTE.

      Trees and palms, 30 gallons and under: 1 year from date of installation if maintained by DTE. 30 gallons and larger: 1 year from the date of installation if maintained by DTE.

      Anything owner maintained is warrantied for 30 days only if all the plant material and trees are maintained (including watering, fertilizing, and pest and disease control) by Owner in accordance with acceptable maintenance practices. This warranty applies only to nursery stock planted by DTE and properly maintained by Owner, including using an operational timed automatic irrigation system supplying proper pH fresh water to installed plants.

    2. Irrigation:

      An irrigation system installed by DTE pursuant to the Agreement is guaranteed for parts and labor for a period of 1 year from the date of substantial completion if the system is being monitored and maintained by DTE. If this is owner maintained, a 30-day warranty applies.  The Manufacturer’s warranty applies for all electrical/electronic parts.

    3. Sod:

      DTE has option to inspect and/or reject sod at delivery before installation. There is no warranty for sod after installation.

      DTE is not responsible for damage to nursery stock, irrigation system, or new or existing sod caused by outside parties, including but not limited to, homeowners and subcontractors not hired by DTE.  Any loss or damage from theft, tampering, vandalism, drainage, soil conditions, salt, frost, wildlife, pests, disease, lack of proper maintenance, acts of God, or failure by Customer to mark anything underground (often marked by “No Cuts”), are excluded from this warranty. This warranty is limited to a “one time” replacement of plant materials, parts and labor of similar or equal stock.

      Stated warranties are only effective upon the customer’s payment in full of total contract price, including any change orders. Warranties are effective from the date of installation. DTE hereby disclaims any and all other warranties, whether expressed or implied, including fitness for any particular purpose or merchantability. Customer waives all incidental or consequential damages and agrees that the liability of DTE for any and all claims, whether breach of contract, breach of warranty, negligence or otherwise, is limited to the purchase price of the defective work or material.

      In the event Work is completed and under warranty with DTE and the project is not under a maintenance contract by DTE, the project will need to be properly maintained by another maintenance crew for warranties to apply.  If the project is not properly maintained and watered, DTE will not be responsible for damaged or dead materials.

      Return policy and claims not arising under warranty: ALL SALES ARE FINAL. To the extent that there is any conflict between the performance standards set forth in the Agreement, or any Exhibits or incorporated documents thereto, these Additional Terms shall be applicable.

      In case of an inconsistency between these Required Construction Terms and any other contract documents between the parties, these Required Construction Terms shall prevail.

  5. Enhancement Terms.
    Estimates require a 50% deposit to order and schedule any approved work. The remaining invoice balance is due upon receipt.  Pricing on this proposal is good for 30 days from the date created.   Any loss or damage from theft, tampering, vandalism, drainage, soil conditions, salt, frost, wildlife, pests, disease, lack of proper maintenance, or acts of God are excluded from this warranty.  Additionally, anything underground that cannot be marked by “No Cuts”, if damaged, is not covered in the above proposal.  Unless specifically quoted, this job only includes an irrigation check. If irrigation services are required, an additional bid will be submitted. If the additional bid is not accepted, DTE is not responsible for loss of materials installed. This proposal is subject to our Terms & Conditions at dtelandscape.com/terms-and-conditions.
  1. Scope of this Agreement
    • 1.1 Each Purchase Order placed by SSS Down to Earth Opco, LLC., an Ohio limited liability company, and its affiliates (“DTE”) for goods and/or services is subject to these standard Purchase Order Terms and Conditions and the terms of the applicable Purchase Order (together, the “Agreement”), and is conditional upon Supplier’s agreement to such terms. Supplier shall be deemed to have agreed to be bound by such terms by accepting the Purchase Order, delivering the goods, and/or performing the services (the “Effective Date”).
  2. Relationship of the Parties
    • 2.1 The Parties shall each be “independent contractors” in relation to one another hereunder, and neither Party’s employees, nor other agents, shall be deemed an “employee,” “agent,” “servant,” or “joint employee” of the other Party hereto.
  3. Orders
    • 3.1 Purchase Orders.
      DTE shall submit all orders for products to Supplier in writing (each a “Purchase Order”) and include in each Purchase Order each Product it is ordering, the amount of each Product it is ordering, the unit price of each Product it is ordering, the location for delivery, and the delivery date (the “Delivery Date”).
    • 3.2 Accepting, Modifying, and Rejecting Purchase Orders. 
      By Notice.  Within three (3) business days’ of receiving a Purchase Order from DTE, Supplier shall accept, reject, or propose a modification to the Purchase Order by sending DTE written notice of its acceptance, rejection, or proposed modification.

      Deemed Acceptance. If Supplier fails to notify DTE of its acceptance, rejection, or proposed modification, DTE may deem that Supplier has accepted the Purchase Order.

      Modification of Purchase Order. Supplier may propose a modification to a Purchase Order by including in its notice to DTE a modified Purchase Order for DTE to accept or reject according to the acceptance and rejection procedures hereunder.

      Canceling Purchase Orders. DTE may, at no expense to itself, cancel part or all of a Purchase Order before the Delivery Date.

      Delivery. Supplier shall deliver the Deliverable to Supplier on the date and at the location, using any applicable delivery method detailed in the Purchase Order.

      Inspection and Notice. DTE will have fifteen (15) Business Days to inspect and evaluate the Deliverable on the delivery date before notifying Supplier that it is either accepting or rejecting the Deliverable.

    • 3.3 Pricing.
      The prices for all products shall be set forth in a Price List, to be provided by Supplier.  The Supplier shall provide DTE notice of any price increases no later than one hundred twenty [120] days before such increases go into effect.  Supplier shall invoice DTE within thirty (30) calendar days of delivery of Deliverable. DTE shall be under no obligation to remit payment for invoices submitted after such thirty (30) calendar days. DTE shall pay the purchase price to Supplier in full within thirty (30) days of receipt of the invoice or under other agreed upon terms, DTE will not accept any late charges, finance charges, fuel surcharges, or any other added charges.
  4. Confidential Information
    • 4.1 From time to time, either party (the “Disclosing Party”) may disclose or make available to the other party (the “Receiving Party”), whether orally or in physical form, confidential or proprietary information concerning the disclosing party and/or its business, products or services (together, “Confidential Information”) in connection with this Agreement.  Each party agrees that during the term of this Agreement and thereafter (i) it will use Confidential Information belonging to the Disclosing Party solely for the purpose(s) of this Agreement and (ii) it will take all reasonable precautions to ensure that it does not disclose Confidential Information belonging to the Disclosing Party to any third party (other than the Receiving Party’s employees and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the Disclosing Party’s written consent. The Receiving Party is responsible for any breach of the confidentiality provisions of this Agreement by its employees and/or professional advisors.  Upon request by the Disclosing Party, the Receiving Party will return all copies of any Confidential Information to the Disclosing Party. For Confidential Information that does not constitute “trade secrets” under applicable law, these confidentiality obligations will expire three (3) years after the termination or expiration of this Agreement.
    • 4.2 For purposes hereof, “Confidential Information” will not include any information (i) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (ii) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party; or, (iii) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the Receiving Party).
    • 4.3 These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency, provided that the Receiving Party gives prompt notice to the Disclosing Party of any such order and reasonably cooperates with the Disclosing Party at the Disclosing Party’s request and expense to resist such order or to obtain a protective order.
  5. Indemnification
    • 5.1 Supplier agrees to indemnify, defend, and hold DTE, including its officers, directors, employees, and other agents, harmless from any and all liability (including, without limitation, reasonable attorneys’ fees, costs, and expenses) to the extent resulting from or related to any third party claim, complaint and/or judgment arising in any way out of the negligence or willful misconduct of Supplier and/or its employees, agents and representatives.
    • 5.2 Although Supplier shall have control of the defense and shall reasonably keep DTE informed of all material information pertaining to the claim, DTE agrees to reasonably cooperate with such defense.
  6. Warranty and Limitation of Liability
    • 6.1 Warranty.
      Supplier warrants that the products will be free from material defects, are made with workmanlike quality, and will conform, within normal commercial tolerances, to the applicable specifications.  Supplier will not object to DTE seeking recourse against product manufacturer under any manufacturer warranty terms that may apply, subject to any limitations or conditions of such warranty.
    • 6.2 Limitation of Liability. 
      Neither Party shall be liable to the other for indirect, incidental, special, punitive or consequential damages, including damages for lost opportunities, lost profits from this Agreement or any other transaction, or lost savings, even if such damages were foreseeable or result from a breach of this Agreement.
  7. Term and Termination
    • 7.1 Term.
      This Agreement will become effective on the Effective Date, and shall continue in effect until terminated as provided in this Agreement.
    • 7.2 Termination for Convenience.
      Either Party may, upon not less than sixty (60) calendar days’ advance written notice to the other Party, terminate this Agreement for any reason at any time.
    • 7.3 Obligations Upon Termination.
      Following receipt of notice of termination of this Agreement, or following termination or expiration of this Agreement for any reason, each of the Parties shall, except as otherwise provided in this Agreement:
      • (a) return, within thirty (30) calendar days of such termination or expiration, any and all property in their possession or control that is owned by any other Party;
      • (b) refrain, except as otherwise mutually agreed in writing by the Parties or required by applicable law, from referencing, for sales or marketing purposes, any prior business relationship(s) with under this Agreement; and
      • (c) timely satisfy all obligations under this Agreement still in effect.
    • 7.4 Payment Obligations.
      Even after termination or expiration of this agreement, each party shall pay any amounts it owes to the other party, including payment obligations for services already rendered, work already performed, goods already delivered, or expenses already incurred, and refund any payments received but not yet earned, including payments for services not rendered, work not performed, or goods not delivered, expenses forwarded.
  8. Dispute Resolution
    • 8.1 The law of the State of Florida shall govern and control this Agreement, all performance, and any disputes arising under this Agreement or otherwise arising out of or relating to this Agreement.
    • 8.2 If any dispute arises between the Parties under this Agreement, the parties shall attempt to resolve the dispute through mediation by the American Arbitration Association (“AAA”).  Any such mediation will be held in Orlando, Florida and each party shall bear its own expenses and an equal share of the expenses of the mediator.
    • 8.3 Subject to Section 8.2 above, if the mediation is unsuccessful, any claims, disputes, or other matters in question between the Parties shall be filed in the Circuit Court in and for Orange County, Florida, and the Parties expressly submit to the exclusive jurisdiction of said Court.
  9. Notices
    • 9.1 All notices to DTE under this Agreement shall be given in writing (including by facsimile) at the address specified below:
    • DTE: SSS Down to Earth Opco, LLCAttn: CFO

      2701 Maitland Center Parkway, Suite 200,

      Maitland, Florida 32751

      All notices to Supplier under this Agreement shall be given in writing (including by facsimile) at the address specified in writing by Supplier to DTE.

  10. Miscellaneous
    • 10.1 Ownership of Works.
      DTE or its assignee, shall, in all events, own and have all right and title in all ideas, concepts, plans, processes (including, but not limited to, sales and marketing processes) creations, trademarks, logos, intellectual property, or work product (collectively, the “Works”) produced by DTE, produced at DTE’s request, or produced by any Party for DTE in fulfillment of such Party’s obligations under this Agreement. All Parties shall cooperate fully with DTE and shall execute such further documentation as DTE may request in order to establish, secure, maintain or protect DTE’s, or its assignee’s, rights with respect to the Works.
    • 10.2 Assignment;
      Change of Ownership or Control. Supplier shall not assign this Agreement, in whole or in part, without the prior written consent of DTE. Any permitted assignment shall be binding upon, and inure to, the benefit of the Parties and their permitted successors and assigns.
    • 10.3 Waiver.
      No provision of this Agreement shall be deemed waived unless such waiver is in writing and signed by the waiving Party. The failure of a Party to exercise any of its rights, remedies, or options under this Agreement, or the failure of a Party to insist upon another Party’s compliance by with any provision under this Agreement, shall not constitute a waiver of any Party’s right to demand compliance. No action or course of dealing of the Parties at variance with the terms and conditions of this Agreement shall constitute any waiver of a Party’s right to demand exact compliance with the terms of this Agreement.
    • 10.4 Severability.
      The invalidity or unenforceability of any provision of this Agreement shall not impair the validity or enforceability of any other provision. The headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
    • 10.5 Survival.
      Upon termination or expiration of this Agreement, all provisions contained herein shall continue in effect as to disputed matters connected with this Agreement until fully resolved as shall all provisions contained herein that are either expressly, or by their nature, meant to survive termination or expiration of this Agreement.
    • 10.6 Other Remedies.
      Except as otherwise expressly limited or specified herein, all rights, privileges, and remedies conferred under this Agreement upon the Parties shall be cumulative and are in addition to any rights, powers, privileges, and remedies available to the Parties by statute or otherwise at law or in equity.
    • 10.7 Amendments. 
      This Agreement may be modified only by a written amendment signed by authorized representatives of Supplier and DTE. Notwithstanding the foregoing, the online terms and conditions are subject to change, and that the terms and conditions in effect at the time of each new order or delivery shall be those on the website at the time of such order or delivery.
    • 10.8 Force Majeure. 
      If a party is unable to perform or is delayed in the performance of its obligations due to acts of God, natural weather disasters, fire, explosion, flood, war, civil disturbance, terrorism, or any other cause beyond that party’s control (each a “Force Majeure”), such nonperformance shall not be an event of default under this Agreement.  In the event of a Force Majeure, the non-performing party shall give the other party prompt written notice describing the particulars of the Force Majeure and the potential duration of the interruption of performance; the excuse of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure; and the non-performing party shall use all reasonable efforts to remedy its inability to perform and the performance shall be resumed at the earliest practicable time after cessation of such interruption.
    • 10.9 Publicity. 
      Neither party will use the other party’s name, logo, or trademarks, or issue any press release or public announcement regarding this agreement, without the other party’s written consent, unless specifically permitted under this agreement or required by law.
    • 10.10 Entire Agreement.
      This Agreement, together with all attachments, exhibits, schedules, or other addenda to this Agreement, constitutes the entire Agreement between or, as applicable, among, the Parties with respect to the subject matter hereof. Any prior negotiations, agreements, or representations that may have been made or relied upon that are not expressly set forth herein as continuing, shall have no force or effect.
    • 10.11 WAIVER OF LIEN RIGHTS.
      TO THE EXTENT NOT PROHIBITED BY LAW, SUPPLIER HEREBY WAIVES AND RELINQUISHES ANY AND ALL STATUTORY OR CONTRACTUAL RIGHTS THAT IT MAY HAVE TO OBTAIN STOP NOTICES OR LIENS, MECHANICS’ OR OTHERWISE AGAINST ANY REAL PROPERTY RELATING TO THE PRODUCT AND AGREES NOT TO FILE ANY SUCH NOTICE OR LIEN AGAINST ANY  PROPERTY OF DTE FOR ANY LABOR, SERVICE, WORK MATERIALS, EQUIPMENT, TOOLS OR OTHER ITEMS FURNISHED TO OR FOR DTE TO THE EXTENT NOT PROHIBITED BY LAW, SUPPLIER AGREES TO LOOK SOLELY TO ITS CONTRACTUAL RIGHTS FOR RECOVERY.
    • 10.12 Review of Counsel; Interpretation.
      The Parties agree that both Parties have had a full and fair opportunity for their respective legal counsel to review this Agreement before executing same.  The Parties further agree that for the purposes of employing the rules of contract construction to this Agreement, neither Party shall be considered the Party that drafted this Agreement.