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The Performance Lawn and Landscape website currently located at www.performancelawncare.com and the online services offered herein (the “Performance Lawn and Landscape Site”, “Site(s) or “Website(s)” and collectively “Performance Lawn and Landscape Service(s)” are provided by Performance Lawn and Landscape (“Performance Lawn and Landscape” or “we”, “us” or “our”) to you (“you” or “user”, the “partner” or “buyer”) subject to the following terms and conditions set forth in this User Agreement (the “Agreement”).

AGREEMENT TERMS

Acceptance of Terms.

Before you attempt begin participating in or using the Site, Performance Lawn and Landscape requires that you read and accept the following Agreement. These policies also govern your visit to Performance Lawn and Landscape.

BY CREATING AND ACCOUNT, LOGGING IN, AND USING THIS SITE, YOU HEREBY REPRESENT THAT YOU HAVE READ, UNDERSTOOD AND ACCEPTED THE TERMS AND CONDITIONS OF THIS USER AGREEMENT AND ALL AGREEMENTS INCORPORATED BY REFERENCE.

If you choose not to accept this Agreement, you may not access or otherwise use the Site. Inquiries regarding this Agreement may be addressed to Performance Lawn and Landscape Customer Service.

Entire Agreement.

This Agreement together will all other agreements, terms and policies incorporated herein by reference set out the entire understanding between Performance Lawn and Landscape and customers and users, with respect to the use of this Site. This Agreement together will all other agreements, terms and policies incorporated by reference herein comprises the entire agreement between you and Us and supersedes all prior agreements between the parties, regarding the subject matter contained herein.

We and our users, “the Parties”, expressly agree that all performance under this Agreement and the resolution of disputes shall be conducted in the English language. If a translation of this Agreement into any other language is required by law, the English version will prevail to the extent that there is any conflict or discrepancy in meaning between the English version and any translation thereof. If this Agreement is provided to you in a language other than English, Performance Lawn and Landscape does so solely as a convenience for you.

Amendment.

Performance Lawn and Landscape reserves sole discretion in that from time to time and at any time we may choose to, change, modify, and/or add or remove any portion of this Agreement, in whole or in part, with or without notice, by posting such changes on the Site(s). Continued use of the Site(s) and the Service(s) after the posting of such changes, constitute user agreement to such modified Agreement, and bind the user to these new Terms and Conditions in whole.

Termination.

This Agreement constitutes a legally binding agreement between you and Us until terminated by you or Us, which Performance Lawn and Landscape may do at any time, without notice, at Our sole discretion. If you become dissatisfied with the Service(s) or the Site(s), in any way, your only recourse is to immediately discontinue use of such and pay any Performance Lawn and Landscape required fee(s), if applicable.

Jurisdiction.

The laws of the State of North Carolina shall govern this Agreement, as outlined in the Arbitration Section Below.

Survival.

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect. The failure by either you or Us to exercise or enforce any rights or provisions of this Agreement shall not constitute a waiver of such right or provision. You agree that any cause of action arising out of or related to the Services or this Agreement must commence within six (6) months after the cause of action arose; otherwise, such cause of action is permanently barred. All provisions in this Agreement regarding representations and warranties, indemnification, disclaimers and limitations on liability, and payment obligations for fees and penalties incurred in relation to the Services prior to the termination date shall survive any termination of this Agreement.

Indemnity.

You agree to defend, indemnify and hold harmless Performance Lawn and Landscape, its members, officers, directors, agents, subsidiaries and employees from claims, demands and damages, actual and consequential, of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, to the extent arising out of or in any way connected with any breach or violation by you of this Agreement, any use by you of the Site or other Services, and any disputes or damages caused by or arising out of your use of or contracts formed with you through this Site or other Services, including without limitation any personal injury, death or property damage caused by or arising out of the subsequent use of any items sold or purchased from or through this Site.

Release.

In the event that disputation arises with one or more users of Performance Lawn and Landscape’s Services, you release Performance Lawn and Landscape (and our officers, directors, agents, subsidiaries and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. California resident users on Performance Lawn and Landscape, expressly waive any rights you may have under California Civil Code §1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

Information Control.

Please use caution and common sense when using the Performance Lawn and Landscape Site(s) and Service(s). While users may find other users’ information offensive, harmful, inaccurate or deceptive, We cannot control the information or other user Content provided by users, which is made available through Our Site(s) and Service(s).

SITE TERMS

Modification and Availability.

Performance Lawn and Landscape may, at any time, delete, modify or supplement the content of its Site(s) without prior notice. We reserves the right, for any reason, at our sole discretion, to terminate, change, suspend or discontinue any aspect of Our Site(s) or Service(s), including, but not limited to, content, features or hours of availability. Performance Lawn and Landscape may also impose limits on certain features of the Service(s) or restrict your access to part or all of its Site(s) or Service(s) without notice or penalty.

Monitoring.

You agree that Performance Lawn and Landscape has the right, but not the obligation, to monitor at any time, for any reason at its sole discretion, all material and content on or within its Site(s) and Service(s). Performance Lawn and Landscape reserves the right at all times to edit, disclose or refuse to post any material or information or request removal of or remove any material or information from its Site(s).

Service Availability.

Performance Lawn and Landscape makes reasonable commercial efforts to make its Site(s) and Service(s) available. However, We are not responsible for any service interruptions, including, but not limited to, interruptions that may affect the receipt, processing and acceptance of offers or other aspects of a transaction or sale.

Copyright and Trademarks.

The trademarks, trade names, designs and all material contained on Performance Lawn and Landscape Site(s) or through other Service(s), including all portions of the website, content, site design, text, graphics, and all intellectual property rights thereto are the sole and exclusive property of Performance Lawn and Landscape or its licensors. The use of any such property for any other reason, on any other website, or the modification, distribution or republication of this material without the prior written permission from Performance Lawn and Landscape is strictly prohibited.

Third Party Links.

Performance Lawn and Landscape may contain links to third-party websites, advertisers, or services that are not owned or controlled by Us. Where We provide such third-party links, no representations or endorsements are made in connection with such sites. We have no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites or services. If you access a third-party website from the Our Site(s), you do so at your own risk, and you understand that this Agreement and Performance Lawn and Landscape’s Privacy Statement, do not apply to your use of such sites. You expressly relieve Performance Lawn and Landscape from any and all liability arising from your use of any third-party website or services or third-party owned content. Additionally, your dealings with or participation in promotions of advertisers found on Performance Lawn and Landscape Site(s), including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that We shall not be responsible for any loss or damage of any sort relating to you dealings with such advertisers. We encourage you to be aware of when you leave the Performance Lawn and Landscape Site(s), and to read the terms and conditions and privacy policy of any third-party website or service that you visit.

Security.

We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

Privacy.

Performance Lawn and Landscape’s Privacy Statement is hereby incorporated by reference. By using the Services, you are consenting to have your personal data transferred to and processed in the United States.

USER TERMS

General Provisions Eligibility.

Only Registered Users are eligible to participate in Performance Lawn and Landscape Services. All prices are listed according to their value in U.S. dollars.

Capacity to Contract.

Performance Lawn and Landscape Services are solely available to individuals or entities capable to form legally binding contracts. Without limiting the foregoing, neither minors in any jurisdiction nor individuals who have been suspended from the Service(s) may participate in the Performance Lawn and Landscape Service(s).

Registration.

Participation on Performance Lawn and Landscape requires that users must establish an account with Us, by completing the registration process provided on the Site(s). Completion of the registration form will require that the user provide accurately specified information to Performance Lawn and Landscape.

Upon approval, users shall be notified of their status as an Performance Lawn and Landscape “Registered User”. Registered Users include both customers and content contributors. You as a registrant and approved user represent and warrant that (i) all information provided by you during registration is complete and accurate, and (ii) you will punctually update and maintain the accuracy and completeness of such user information so that it is kept current, at all times. At its sole discretion, We reserves the right to disapprove, suspend or terminate user accounts at any time and for any reason, likewise prohibiting you from participating in Services offered on any or all Performance Lawn and Landscape Sites.

Login ID, Password and Security.

In adherence to the requirements set forth by Performance Lawn and Landscape in the registration process, you will provide an exclusive email address and password that will be used as your unique login ID. As a registered Performance Lawn and Landscape User, you are solely responsible for all respects of the use of and for protecting the confidentiality of your login ID and password. You will without exception notify Us immediately of any unauthorized use of any login ID and password or any other known breach of use and/or security regarding the Services.

User Responsibilities.

You agree at all times to cooperate with all associated regulatory agencies and to comply with all applicable State, Federal, and Jurisdictional laws related to your use of the Services and your sale or purchase of items performed via the Performance Lawn and Landscape Site(s) and Service(s).

Agreeing to these Terms and Conditions binds you at all times while using the Performance Lawn and Landscape Site(s) and Service(s) to refrain from engaging in any of the following prohibited activities: including and without limitation (i) copying, distributing, or disclosing any part of the Services in any form or medium by the use of any automated or non-automated screen, web or data “scraping” techniques; (ii) using “robots”, “spiders”, “offline readers”, or any other automated system(s), to access the Services in a manner that conducts greater demand to Performance Lawn and Landscape’s servers than is humanly possible at any given time through the reasonable use of a conventional online web browser; (iii) attempting interference with, or compromising system integrity or security or deciphering any communications to or from Our servers providing and processing the Services; (iv) imposing actions that at our sole discretion may execute an unreasonably sizeable load to our infrastructure; (v) uploading through the Site(s), invalid data, or other compromising software agents such as viruses and/or worms; (vi) harvesting or collecting from the Services any personal or corporately identifiable information, including and without limitation account ID’s and/or passwords, as well as any other personal and/or corporate financial information; (vii) utilization of the Services for any private or commercial solicitation purposes abnormal, at our discretion, to the Service(s) provided by the Performance Lawn and Landscape Site(s); (viii) impersonation of other persons or parties or otherwise misrepresentation of your affiliation with a person or entity, conducting fraud, attempting to or concealing your identity; (ix) bypassing measures we may exercise towards restriction and access to the Performance Lawn and Landscape Site(s) and/or Service(s).

User Content.

With respect to any and all content provided by users to Performance Lawn and Landscape, including any text, documents, maintenance records, graphics, pictures, and/or audio or video content used, you grant to Us a non-exclusive, universal, perpetual, irrevocable, royalty-free, and sub licensable right to exercise all relevant and relative intellectual property rights that users own, posses, and/or retain in the content and in any content relevant media, known presently or in the future.

Users agree not to post any Content that: (i) may result in a risk of harm, loss, emotional distress, physical or mental illness to themselves, to any other person, or to any animal, physical or mental injury, disability, disfigurement, or death; (ii) may result in a risk of any other loss or damage to any person or property; (iii) contains any information or content that is illegal (including and without limitation, the disclosure of another party’s trade secrets, or insider information as ruled under securities law); (iv) contains any information or content that you do not have a legal right to make available in any law or contractual or fiduciary relationship; (v) contains any information or content at our discretion that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) may constitute or contribute to a crime or tort; (vii) contains any information or content that is not correct, accurate and current. Performance Lawn and Landscape reserves the right, but is not obligated, to reject and/or remove any user Content that We believe, in our sole discretion, violates these provisions.

 

DISCLAIMER.

THE EQUIPMENT, SITE AND OTHER SERVICES, INCLUDING ALL CONTENT, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE OR OTHER SERVICES, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PERFORMANCE LAWN AND LANDSCAPE DOES NOT WARRANT THAT THE ITEMS, SERVICE(S) OR THE FUNCTIONS, FEATURES OR CONTENT INCLUDING REPORTS, CONTAINED THEREIN OR IN THE SITE WILL BE FUNCTIONAL, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. IF YOU ARE DISSATISFIED WITH THE SITE OR ANY OTHER SERVICES ON THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE AND OTHER SERVICES. PERFORMANCE LAWN AND LANDSCAPE AND SELLER MAKE NO WARRANTY REGARDING ANY ITEMS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PERFORMANCE LAWN AND LANDSCAPE OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CERTAIN USERS. PERFORMANCE LAWN AND LANDSCAPE EXPRESSLY DISCLAIM ANY ENDORSEMENT OR WARRANTY OF ANY ITEMS SOLD ON OR THROUGH THE SERVICES, AND ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES OF THE AGREEMENT OF ANY KIND COMMITTED BY ANY OTHER USER.

LIMITATION OF LIABILITY.

IN NO EVENT SHALL PERFORMANCE LAWN AND LANDSCAPE OR SUPPLIERS BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM (A) ANY INJURY TO ANY PERSON OR PROPERTY CAUSED BY (A) THE ITEMS OR (B) DEFECTS IN SUCH ITEMS ON ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY) OR OTHERWISE. IN ADDITION, IN NO EVENT SHALL PERFORMANCE LAWN AND LANDSCAPE BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICES, THE SITE OR ITS CONTENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, EVEN IF PERFORMANCE LAWN AND LANDSCAPE OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL THE TOTAL LIABILITY OF PERFORMANCE LAWN AND LANDSCAPE TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) ARISING FROM THIS AGREEMENT OR YOUR USE OF THE SITE AND OTHER SERVICES EXCEED, IN THE AGGREGATE, $100.00.

ARBITRATION.

YOU AGREE TO MEDIATE AND ARBITRATE ANY DISPUTE OR CLAIM BETWEEN OR AMONG YOU AND ANY OTHER REGISTERED USER OF PERFORMANCE LAWN AND LANDSCAPE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER AGREEMENTS BETWEEN AND AMONG YOU, PERFORMANCE LAWN AND LANDSCAPE AND ANY OTHER REGISTERED USER OR ANY OTHER TRANSACTION CONTEMPLATED BY SUCH AGREEMENTS INCLUDING, BUT NOT LIMITED TO, ALL CONTRACT AND TORTCLAIMS, STATUTORY CLAIMS, CLAIMS FOR RELIEF WHETHER EQUITABLE OR LEGAL, ISSUES OF ARBITRABILITY, AND DISPUTES ABOUT THE SCOPE OF THIS CLAUSE. DISPUTE RESOLUTION SHALL BE CONDUCTED PURSUANT TO THE FOLLOWING PROCEDURES. BEFORE INITIATING ANY ARBITRATION, THE PARTIES SHALL ENGAGE IN MEDIATION, WHICH IS A PROCESS IN WHICH PARTIES ATTEMPT TO CONFIDENTIALLY RESOLVE ANY DISPUTE BY SUBMITTING IT TO AN IMPARTIAL, NEUTRAL MEDIATOR WHO IS AUTHORIZED TO FACILITATE THE RESOLUTION OF THE DISPUTE BUT WHO IS NOT EMPOWERED TO IMPOSE A SETTLEMENT. MEDIATION SHALL BE CONDUCTED IN CHARLOTTE, NORTH CAROLINA, BY A MEDIATOR AGREED TO BY THE PARTIES. SHOULD MEDIATION PROVE UNSUCCESSFUL TO RESOLVE THE DISPUTE, AND WITHIN ONE YEAR OF THE DISPUTE ARISING, A PARTY SHALL MAKE A DEMAND FOR ARBITRATION. THE PARTIES SHALL RESOLVE THE DISPUTE THROUGH FINAL AND BINDING ARBITRATION. ARBITRATION SHALL BE CONDUCTED IN CHARLOTTE, NORTH CAROLINA. THE PROCEDURAL AND SUBSTANTIVE LAW TO BE APPLIED TO AND IN THE ARBITRATION SHALL BE THE LAW OF THE STATE OF NORTH CAROLINA, EXCEPT FOR ITS CONFLICT OF LAW PRINCIPLES. THE PARTIES SHALL AGREE ON A SINGLE NEUTRAL ARBITRATOR. THE ARBITRATOR SHALL BE BOUND TO APPLY THE LAW, INCLUDING THE RULES OF EVIDENCE, AND SHALL BE EMPOWERED TO HEAR AND DETERMINE DISPOSITIVE MOTIONS INCLUDING MOTIONS TO DISMISS AND MOTIONS FOR SUMMARY JUDGMENT. THE PARTIES SHALL HAVE THE RIGHT TO CONDUCT TWO DEPOSITIONS OF EACH OPPOSING PARTY. THE ARBITRATOR SHALL HAVE THE RIGHT TO ISSUE INJUNCTIONS AND ATTACHMENTS AND OTHER EQUITABLE REMEDIES AND AWARD COMPENSATORY DAMAGES. THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CONSEQUENTIAL, PUNITIVE OR TREBLE DAMAGES, OR ANY OTHER MANNER OF ENHANCED DAMAGES. THE PREVAILING PARTY IN ANY ARBITRATION SHALL HAVE THE RIGHT TO AN AWARD OF ATTORNEYS’ FEES AND COSTS. THE AWARD OF THE ARBITRATOR SHALL BE FINAL AND BINDING AND ANY PARTY TO THE DISPUTE MAY SEEK TO CONFIRM THE AWARD OF THE ARBITRATOR IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN CHARLOTTE, NORTH CAROLINA AND ENFORCE THE AWARD AS A JUDGMENT. EXCEPT FOR THE FILING OF A JUDICIAL ACTION TO CONFIRM, MODIFY, VACATE, OR ENFORCE AN ARBITRATOR’S AWARD, INCLUDING THE AWARD OF AN INJUNCTION OR ATTACHMENT, WHICH FILING IS PERMISSIBLE, ANY PARTY WHO INITIATES LITIGATION, OR WHO INITIATES ARBITRATION WITHOUT FIRST MEDIATING A DISPUTE, SHALL FORFEIT ANY AND ALL RIGHT TO ATTORNEYS’ FEES AND COSTS AS A PREVAILING PARTY, AND SHALL REIMBURSE ANY OTHER PARTY TO THE LITIGATION FOR THEIR COSTS OF LITIGATION INCLUDING ATTORNEYS’ FEES AND COSTS.