MOON VALLEY NURSERIES' TERMS AND CONDITIONS

Owner(s) agrees and acknowledges that the following terms and conditions apply to Owner(s) purchase and/or order with Moon Valley Nursery Intermediate Holdings, LLC, including its parent, subsidiary, and affiliated companies (collectively, “MVN”), and that different specialized terms, as listed below, may apply to Owner(s)’ purchase and/or order. Owner(s) agrees and acknowledges that Owner(s) has been provided sufficient opportunity to read and understand the terms set forth below, and otherwise agrees as set forth herein.

NOTICE TO OWNERS OF PURCHASES, DEPOSITS, AND LAYAWAYS

All sales are final at the time of tagging and/or purchase and ownership transfers to Owner(s) immediately. Any returned checks for insufficient funds are subject to a $30.00 fee. Unless otherwise stated herein, any deposit is forfeited by the Owner(s) upon default of breach of this agreement, including any failure to pay when due, and failure to comply with any other term or condition set forth herein, and/or any attempt to cancel or repudiate this agreement after the time to do so has expired. Any payments made by the Owner(s) for will call, layaway, and/or pick up orders will be forfeited if Owner(s) fails to complete such order within 12 months of the initial payment date. Unless otherwise stated on the applicable invoice, Owner(s) declines double staking and extended warranty. Owner(s) agrees and acknowledges that any changes to the order and/or invoice must be made within 2 days prior to the panting or installation date.

CANCELLATIONS & REFUNDS

Any cancelled residential purchase and/or order (including any orders including deposits or layaways), are subject to a 15% cancellation/restocking fee, without exception. Any cancelled commercial/wholesalepurchase and/or orders that are tagged, purchased and/or ordered, and subsequently rejected are subject to a mandatory 25% restocking fee, without exception. Turf, artificial turf, rock, sod, gravel, and/or any other hardscape order or purchase are non-refundable or returnable under any circumstances. Upon installation of any product ordered by Owner(s), there are no refunds available and the transaction is final. Any and all portions of an approved refund for un-installed product will be credited back to the original form of payment, except for cash payments, which will be processed via check. All store credits expire 12 months from the date of issuance. Gift card and gift certificates cannot be replaced without both the original card / certificate number and purchase receipt, and cannot be redeemed for cash unless otherwise required by law.

MOON VALLEY NURSERIES' RESPONSIBILITY & WARRANTY

Owner(s) agrees and acknowledges that MVN’s obligations are set forth and expressly limited to the following:

• MVN will provide for normal digging and/or planting of trees on Owner(s) property, but if MVN encounters any underground pipes, pool pipes, irrigation lines, other utilities, rock(s), stump(s), trees, debris, non-organic material, unstable material, water, or any other obstacles or obstructions while digging or planting, Owner(s) agrees and acknowledges that the removal of any such items prior to digging and/or planting is Owner(s)’ sole responsibility as this agreement presumes the project or planting area is free of such items;
  
• MVN will exercise due care in the performance of its work but will not be and is not responsible for delays in delivery, as delivery dates, times, and windows are estimates only and not guarantees;

• MVN will exercise due care but will not be and is not responsible for any damage caused by or related to any digging, planting, the usual process of delivering, digging, or planting, including ingress and egress to the project location, and MVN is in no way responsible or liable for grading, re-seeding, repairing, replacement or movement of any materials, or landscaping after MVN’s planting and/or digging is complete;

• MVN warrants that:

• The materials used in completing the digging or planting process will be of high quality and that all work performed on the planting area will be done in a competent and workmanlike manner;

• There is a 3-month transplant warranty, which begins as of the original planting date and is subject to MVN’s then-current delivery charge, and is limited only to product installed by MVN and limited to 1 replacement item for each one purchased;

• Replacement plants of 5 gallons or less must be picked up by the original Owner(s) with the original purchase receipt;

• Owner(s) agrees and acknowledges that an extended warranty is available for purchase, subject to additional terms and conditions, and applies only if and when selected and paid for by Owner(s);

• Owner(s) agrees and acknowledges that MVN’s warranty does not cover or extend to:

• Any shifting or settling of earth in the planting area for any reason whatsoever;

• Any removal of raised earth;

• Any defect due to Owner(s)’ negligence, including Owner(s)’ failure to provide sufficient water to any tree or plant after installation and/or failure to follow care instructions;

• The expected growth rate, fruit production, or location of the planted tree or plant, or any other perceived or anticipated feature of the tree and/or plant variety;

• Any damage or issue caused by any insect, pest, rodent, pets, animal (domestic or wild), weather (including wind, hail, extreme temperatures, frost, freezing, heavy rain, etc.), or any other natural act of any kind, and Owner(s) agrees and acknowledges that any double staking does not provide any additional warranty or protection against any weather damage;

• Sod, multi-trunk tress or to individual branches or trunks of trees;

• Owner(s) further agrees and acknowledges that any warranty on all artificial turf and related products is subject to the manufacturer’s guarantee or warranty, and no claim for such will be filed against MVN, who will be held harmless by Owner(s);

• Owner(s) further agrees and acknowledges that the removal of raised earth wells voids any and all warranty provided by MVN;

• Any clearance, sale, or “Blue” tagged items, whether MVN installs the item or otherwise; and

• Any extended warranty unless expressly purchased and paid for by Owner(s) and indicated on the applicable invoice.

• Owner(s) further agrees and acknowledges that MVN is not and will not be responsible for:

• Any damage to trees, plants, landscape, lawns, shrubs, flowers, driveways, walkways, paths, sidewalks, curbs, patios, decks, septic systems, pool pipes, irrigation lines, underground lines of any kind, pools and pool decks, pets (restrained or otherwise) neighboring properties, and wells caused by or related to any MVN activity at the planting area and/or property, including but not limited to:

• Any damage due to any underground, surface, or drainage water, or any drainage conditions that may arise at the site;

• MVN’s work in installing, digging, planting, or obtaining ingress or egress to the planting site and/or property, including any movement of people, equipment, or materials;

• Removal, pruning, or fertilizing of trees, plants, flowers, shrubs, or any other form of plant or vegetation;

• Owner(s) agrees and acknowledges that it is solely responsible for any such damage or issue, including for any restoration or repair cost, and that Owner(s) hereby holds MVN harmless for any and all such damage, loss, cost, and/or issue.

• Any services not included on the applicable invoice, including but not limited to any removal or haul away of trees, vegetation, plants, stumps, dirt, rocks, boulders, or any other debris, and adding any irrigation lines or emitters;

• Any damage resulting from the delivery of rock, gravel, pavers, or other landscape materials;

• Crane fees – if MVN determines, in its sole discretion, that access to the planting area is unworkable or unsafe for any reason, Owner(s) agrees and acknowledges that the fees for a crane and labor will be at its sole expense;

• Acceptance or rejection of any MVN product or material by any homeowner’s association, or any governmental agency. Owner(s) agrees and acknowledge that Owner(s) has the sole responsibility of determining any such restrictions and information MVN of such restrictions prior to purchase;

• Lack of access to the planting area on the day of delivery, any ambiguity or lack of clarity in the location of the planting area, any obstacles or impediments to planting or digging on the day of delivery (including any pets or animals), and Owner(s) agree and acknowledge that any delays may lead to additional job costs and/or damage to the purchased materials, which are the sole responsibility of Owner(s) and Owner(s) hold MVN harmless for any related damages or issues;

• The identification of, removal of, or any damage to any historical or environmentally protected trees, plants, landscape, structures, or any other item, and Owner(s) agree and acknowledge that Owner(s) is solely responsible for informing MVN of any such items prior to installation, and that Owner(s) shall hold MVN harmless for any damage to such items;

• Any delay caused by weather or any other act, event, or condition outside the reasonable control of MVN;

• Any damage to any neighboring trees, plants, structures, vegetation, improvements, or other items, including those that may extend or hang over onto, into, or above Owner(s) property;

• Any improper or inaccurate measurements of the planting area, including but not limited to those provided by Owner(s) when ordering sod, artificial turf, rock, irrigation, or any other items.

• In addition to those set forth elsewhere herein, Owner(s) further agrees and acknowledges that Owner(s) is solely responsible for, and will hold MVN harmless for any damage, loss or issue arising from or relating to:

• Obtaining or furnishing any required or applicable permit;

• Compliance with any applicable codes, ordinances, regulations, or requirements, including but not limited to any homeowner association rules;

• Cutting open any fronds tied up for planted palm trees no sooner than 2 weeks and no later than 10 weeks after the initial planting date to ensure transplant survival;

• Final location of the plant or tree at the planting site;

• Providing sufficient ingress and egress to the planting site for all crew and equipment;

• All rock, dirt, and gravel choices, and Owner(s) agrees and acknowledges that the color, shape, texture, and other characteristics of such products varies widely, and will in all likelihood be different that that originally selected, that MVN in no way guarantees that it can match rock and/or gravel types, and Owner(s) further hold MVN harmless and any and all such variance;

• Marking any and all underground lines prior to delivery; and

• Grading, re-seeding, repairing, restoring, and otherwise landscaping the planting area and location after planting and digging is complete.

DAMAGES

Owner hereby acknowledges that once tagged, any plant or tree then belongs to Owner(s), as MVN is then prohibited from marketing or selling any such item to any other customer. In the event Owner(s) fails to comply with the terms of this agreement, Owner(s) hereby agrees and acknowledges to damages as follows: 1) all amounts MVN becomes obligated to pay for purposes of the invoice; 2) an additional 30% of the invoice value, which MVN and Owner(s) agree is a fair, reasonable, and undisputed manner to calculate MVN’s lost profit; and 3) all costs (including attorneys’ fees) incurred by MVN to collect any amounts owed by Owner(s).

ARBITRATION AND ADDITIONAL TERMS

In the event of a dispute between the parties over this agreement, including the execution thereof, the parties hereby waive their respective rights to litigate such issues in court, and instead agree to resolve any dispute through private, binding arbitration in the state and county where this agreement was executed. The parties agree to enter arbitration through the American Arbitration Association (“AAA”) and abide by its Commercial Arbitration Rules. Any such proceedings shall be completed within 120 days from when an arbitrator is appointed, as may be extended by the arbitrator or the parties’ mutual express agreement. The arbitration shall be conducted by one arbitrator, who shall be mutually selected by the parties, or, if the parties cannot agree, shall be selected by the AAA. The laws of the state where the purchase was made will apply to the arbitration proceedings, with regard to conflict of law principles. The parties agree to abide by any award issued by the arbitrator, and the judgment (if any) may be entered into any court of competent jurisdiction. The costs of the arbitration shall be equally split by the parties unless otherwise ordered by the arbitrator, who may award any fees or costs, including reasonable attorneys’ fees, to the prevailing party, subject to the laws of the applicable jurisdiction.

It is agreed and understood that this agreement is the full agreement between the parties, and that no other terms, conditions, statements, warranties, representations, or understandings, written or verbal, expressed or implied, are part of this agreement, that if any part of this agreement is declared illegal, void, or unenforceable, the remaining terms shall stand and remain in full force and effect, and by digitally signing, checking any box or field indicating agreement or acknowledgment, or otherwise signing these terms in any way, shape, or form, including any and all digital and electronic formats, Owner(s) agree to these terms and conditions.

ADDITIONAL TERMS FOR ROCK & GRAVEL ORDERS

In the event Owner(s) has ordered or purchased rock, gravel, pavers, or other landscaping items from MVN, Owner(s) agrees to and acknowledges the additional following terms and conditions:

• Any and all such materials will be delivered to the street curb of the property location, unless otherwise indicated on the applicable invoice;

• Any and all such materials will vary widely, and may include at least 20% - 20% fines upon delivery;

ADDITIONAL TERMS FOR TREE RENTALS

• Tree Rental Customer is responsible for the care and livelihood of all rented trees for the entirety of the rental period as presented on the Tree Rental Invoice, including but not limited to providing ample water, sunlight, and any and all other care as instructed by MVN’s Tree Rental Representative where applicable.

• If a tree is considered unusable by MVN’s Tree Rental Representative after returning the product, in his/her sole discretion, Tree Rental Customer is responsible for the full retail value of the tree. Any amount received towards the tree rental will be applied to the new invoice when applicable.

• Tree Rental periods are a minimum of 24 hours. If desired, Tree Rental Customers may return items before the expiration of this time to any MVN location. Delivery & Pick-up of rental items cannot be scheduled within the same calendar day.

• Tree rentals are not covered by any warranties, available for the extended warranty program, or subject to conditions of any other agreement.

• All Tree Rental Invoice must be paid in full before delivery of the order is scheduled.

• Tree Rental Customers must schedule pick-up or deliver all product within 24 hours of the expiration of the designated rental period. Any delivery or pick-up scheduled after 24 hours within the expiration of the designated rental period will result in a rental delay fee of 20% of the total rental price charged directly to the Tree Rental Customer. Any tree rental order kept in Tree Rental Customer’s possession longer than 72 hours will result in a charge of the total retail price of the product rented to the customer.

• Tree Rental Customers must keep a valid credit card on file with Moon Valley Nurseries, and hereby authorize the use thereof for any fees incurred pursuant to this agreement.

• Moon Valley Nurseries will not perform any work that has not been listed on the Tree Rental Invoice as noted by MVN’s Tree Rental Representative, including but not limited to any extra transportation not listed on the invoice, renting supplies not listed on the invoice, any additional manual labor, or any related service item.

• In circumstances where unionized or contracted workers must perform delivery, placement, or any other work at the delivery site, these expenses will be covered and managed solely by the Tree Rental Customer. MVN employees are not authorized to perform any work in such situations, and may only deliver and pick-up tree rentals within designated delivery areas.

• The condition of returned items is at the sole discretion of MVN.

• Any individual or entity (the “Tree Rental Customer”) agrees to fully indemnify and hold MVN harmless for any claim, loss, or damage (“Loss”) of any nature whatsoever, including but not limited to death, personal injury, and / or property damage, regarding, relating to, or in connection with Tree Rental Customer’s rental, placement, and / or installation of trees, plants, and / or any other MVN product, no matter the cause of such Loss.

ADDITIONAL TERMS FOR TREE SERVICE & PRUNING

• Owner(s) agrees and acknowledge that: 1) after pruning, sap may ooze from areas where cuts were made; and 2) after extraction or grinding, soil may recess.

ADDITIONAL TERMS FOR LANDSCAPING SERVICES

• Owner(s) agrees and acknowledge that the color / shading / texture and all other qualities of pavers, gravel, stone, and any / all other landscaping materials ordered by Owner(s) may, and likely will, vary widely from those presented or displayed in sales materials. Owner(s) agrees to accept all such materials as delivered by MVN.

• Owner(s) further agrees and acknowledges that the brands of irrigation and lighting equipment and materials are those presented in MVN materials, that the specifications of such equipment are available to the Owner(s) via the respective manufacturers of such equipment, and that MVN does not represent or warrant the use, condition, or suitability of such equipment for any specific purpose whatsoever. Owner(s) agree and acknowledge that the choice of the equipment to utilize for Owner(s) project is solely that of Owner(s).

• Owner(s) agrees and acknowledges that MVN does not provide any type of warranty for any landscaping equipment ordered or selected by Owner(s), and that any such warranty is provided by the manufacturer of such equipment, if any manufacturer does, in fact, offer such a warranty.

• Owner(s) agree and acknowledge that all other terms of this Agreement apply to MVN’s landscaping services, including all provisions limiting MVN’s liability. In any scenario, subject to the terms set forth therein, Owner(s) agree and acknowledge that MVN’s liability for any landscaping services will not exceed the amount of Owner(s)’ order for landscaping services from MVN, and that Owner(s) agree to indemnify and otherwise hold MVN harmless for any claim from third-party relating to MVN’s landscaping services that seeks any amount in excess of the amount of Owner(s)’s order for landscaping services from MVN.

• Owner(s) further agrees and acknowledges that Owner(s) is solely responsible for ensuring that all necessary utilities and any and all other services are readily available for any landscaping services ordered by Owner(s) from MVN, including but not limited to all electrical, water, and any other services needed.