Terms & Conditions

1. General.
a) These terms and conditions (these “Terms”) set forth the terms and conditions that govern the supply of Services (as defined herein) by Cohen & Master Tree and Shrub Services Ltd. (“Cohen & Master”, “we”, “us” and “our” herein) to you. You have the right to accept or decline this Agreement and to correct any errors immediately before accepting and entering into this Agreement.
b) These Terms, together with the Purchase Order and Invoice, comprise the entire agreement between the Customer and Cohen & Master in respect of the Services, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of the event of a conflict between any term or condition of the Purchase Order or any Invoice or Report and these Terms, these Terms shall apply.
c) Customer consents to receiving electronic records related to its transactions with Cohen & Master, which may be provided via a Web browser or e-mail application. Individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting us. Customer acknowledges and agrees that electronic signatures or electronic acceptance of a Quotation and these Terms (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.
d) Capitalized terms used herein are defined in Section 21 of these Terms or elsewhere herein.

2. Ordering Process; Commencement Date
a) Any quotation for Services provided by Cohen & Master to Customer (each, a “Quotation”) are valid for a period of sixty (60) days (the “Acceptance Period”), after which time, such Quotation shall no longer be open for acceptance by Customer.
b) Customer may place an order for Services by accepting a Quotation within the Acceptance Period (the “Purchase Order”). Services shall be performed at the Customer’s Location and Customer shall provide Cohen & Master with access to the Customer’s Location required for performance of the Services in accordance with the terms of this Agreement. The date for commencement of performance of the Services (the “Commencement Date”) is set forth in the Purchase Order.
c) By submitting a Purchase Order, Customer irrevocably agrees to and accepts these Terms.

3. Changes and Cancellations.
a) All Purchase Orders are final and binding on Customer once submitted.
b) Requests for changes or cancellations to a Purchase Order must be submitted in writing to Cohen & Master and are subject to approval by Cohen & Master, in its sole discretion. Cohen & Master may, in its sole discretion, cancel any Purchase Order upon notice to Customer and, in such event, will return any amounts received from Customer for Services not performed.

4. Payment Terms.
a) Customer agrees to pay the total purchase price for the Services as set out in the Purchase Order in accordance with each Invoice. Invoices shall be issued and shall be due and payable upon the terms set out in the Purchase Order. Customer will pay any applicable sales, use, goods and services, transaction, excise or similar taxes and any federal, provincial, sales tax or other charges (including, but not limited to, environmental or similar fees), imposed on, in respect of or otherwise associated with all of the Services.
b) Customer will pay interest on all late payments at the rate of 2% per month (24% per annum), calculated monthly. Customer will reimburse Cohen & Master for all costs incurred in collecting any late payments, including, without limitation, legal fees. In addition to all other remedies available under these Terms or at law (which Cohen & Master does not waive by the exercise of any rights hereunder), Cohen & Master will be entitled to suspend the delivery of any Services if Customer fails to pay any amounts when due hereunder.
c) Customer will not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Cohen & Master, whether relating to Cohen & Master’s breach, bankruptcy or otherwise.

5. Limited Warranty; Report Limitations
a) Cohen & Master warrants to Customer that the Services will be performed in a professional manner in accordance with generally recognized industry standards for arboriculture methods and techniques (the “Services Warranty”). Customer’s sole and exclusive remedy and Cohen & Master’s entire liability with respect to this warranty will be, at the sole option of Cohen & Master, to either (i) use its reasonable commercial efforts to reperform or cause to be reperformed any Services not in substantial compliance with the Services Warranty or (ii) refund amounts paid by Customer related to the portion of the Services not in substantial compliance with the Services Warranty, subject to the limitations of liability set out below. The Services Warranty shall only be applicable if Customer notifies Cohen & Master in writing within five (5) Business Days after performance of the applicable Services that the Services provided were not in substantial compliance with the Services Warranty.
b) Any reports or other deliverables prepared by Cohen & Master or its employees or other authorized personnel as part of the Services, including, without limitation, any opinions expressed by email or otherwise, whether delivered before or after the date of this Agreement (each, a “Report”) shall be subject to the following qualifications and conditions:
(i) no guarantees are offered or implied that the trees or part(s) of any trees examined in any Report will remain intact;

(ii) trees should be re-assessed periodically. The assessment presented in any Report is valid at the time of inspection only;

(iii) all Reports shall constitute the property of Cohen & Master;

(iv) Reports may only be used by the Customer for the specific purposes set out in the Report or the Purchase Order relating to such Report, as applicable (the “Permitted Purpose”); provided that, unless otherwise agreed to by Cohen & Master in writing, no Report may be used by the Customer until payment of all Invoices relating to Services performed (including, for certainty, Services relating to delivery of the Report) have been paid in full; and

(v) Cohen & Master reserves the right to withdraw any Report and its recommendations provided therein if the Customer breaches any of its obligations under this Agreement.

6. Work Product. It is acknowledged and agreed that Cohen & Master retains ownership of all work product, materials, documentations, and other deliverables to be provided or created (individually or jointly) in connection with the Services, including but not limited to, all Reports, all inventions, discoveries, methods, processes, formulae, ideas, concepts, techniques, know-how, data, designs, drawings, photographs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights) or discovered in the course of performance of this Agreement that are embodied in such work or materials (“Work Product”), together with all intellectual property rights therein. Subject to Section 5b)(iv)-(v), Cohen & Master grants to Customer a limited, non-exclusive, non-transferable, perpetual, royalty free, worldwide license to use each Report solely for the Permitted Purpose.

7. Photographs. Customer consents to us photographing the trees and shrubs, as applicable, at Customer’s Location before, during, and after commencement of the Services. These photographs may be used for our portfolio, website, social media, advertising and marketing efforts but will remain anonymous. We will never share any personally identifiable information relating to these photographs without prior written approval from you.

8. Disclaimer; Limitation of Liability
a) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 5(a), TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, COHEN & MASTER MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, AND HEREBY EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES, INCLUDING ANY (A) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (B) CONDITION OR WARRANTY OF MERCHANTABILITY; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
b) IN NO EVENT WILL COHEN & MASTER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT OR DELIVERY OF THE SERVICES.
c) IN NO EVENT WILL COHEN & MASTER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE PURCHASE AND SALE OF THE SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED 50% OF THE TOTAL AMOUNT PAID TO COHEN & MASTER FOR THE SERVICES PURSUANT TO THE APPLICABLE PURCHASE ORDER.
d) The foregoing limitations, exclusions and disclaimers shall apply to any and all claims, regardless of whether the alleged or actual damages were foreseeable or a claim for such damages is based in contract, warranty, strict liability, negligence, tort or otherwise. Insofar as applicable law prohibits any limitation on liability herein, the Parties agree that such limitation will be automatically modified, but only to the extent so as to make the limitation compliant with applicable law. The Parties agree that the limitations on liabilities set forth herein are agreed and bargained-for allocations of risk and Cohen & Master’s compensation for the Services reflects such allocations. Such limitations will apply notwithstanding the failure of the essential purpose of this Agreement or any remedy contained herein and even if a Party has been advised of the possibility of any such failure or liability.

9. Compliance with Law. Customer will comply with all applicable laws and regulations and maintain in effect all the licenses, authorizations and permits that it needs to carry out its obligations under this Agreement and to allow us to perform the Services.

10. Termination. In addition to any remedies that may be provided under these Terms, Cohen & Master may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due in connection with the delivery of any of the Services and such failure continues for 5 days after Customer’s receipt of written notice of non-payment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. The Parties may, at any time, terminate this Agreement upon mutual written agreement. Upon termination, all rights and obligations of the Parties under this Agreement will automatically terminate in respect of the Services except for any right of action occurring prior to termination, payment obligations and obligations that expressly or by implication are intended to survive termination (including, but not limited to Sections 5b), 6, 7, 8, 12 and 17 hereof and this survival provision). Notwithstanding any provision to the contrary herein, Customer shall be responsible for all costs and expenses incurred by Cohen & Master in performing the Services prior to the effective date of termination.

11. Amendment; Waiver. No provision of this Agreement will be deemed waived, amended or modified by either Party unless such waiver, amendment or modification is in writing and signed by both Parties. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

12. Confidential Information. All non-public, confidential or proprietary information of Cohen & Master, including but not limited to, Work Product, samples, documents, data, pricing and price lists, discounts or rebates, disclosed by Cohen & Master to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with the Agreement and the purchase of Services from Cohen & Master is confidential, solely for the use of performing the Agreement and may not be disclosed or copied unless authorized in advance by Cohen & Master in writing. Upon Cohen & Master’s request, Customer will promptly return all documents and other materials received from Cohen & Master. Cohen & Master will be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (i) in the public domain; (ii) known to Customer at the time of disclosure; or (iii) rightfully obtained by Customer on a non-confidential basis from a third party.

13. Force Majeure. Cohen & Master will not be liable or responsible to Customer, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms, when and to the extent such failure or delay is caused by or results from acts beyond Cohen & Master’s reasonable control.

14. Assignment. Customer will not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Cohen & Master. Any purported assignment or delegation in violation of this Section is null and void. We may assign or subcontract all or any portion of our rights or obligations with respect to the sale of Services or assign the right to receive payments, without Customer’s consent.

15. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in the Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever.

16. No Third-Party Beneficiaries. The Agreement is for the sole benefit of the Parties and their respective heirs, executors, administrators, personal representatives, successors and permitted assigns, as applicable, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

17. Governing Law. All matters arising out of or relating to the Agreement and the purchase of the Services by Customer are governed by and construed in accordance with the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule.

18. Notices. Each Party will deliver all notices and other communications under the Agreement (each, a “Notice”) in writing and addressed to the other Party at the address set forth on the face of the Purchase Order (or to such other address that may be designated by a Party from time to time in accordance with this Section). Notices sent in accordance with this Section will be conclusively deemed validly and effectively given: (i) on the date of receipt, if delivered by personal delivery, or if delivered by pre-paid courier; or (ii) on the day of the transmittal of the communication if it is before 5:00 p.m. (EST) on a Business Day and, if after 5:00 p.m. (EST) or not on a Business Day, on the next day which is a Business Day, if given by electronic mail.

19. Severability. If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

20. Errors and Omissions. All Purchase Orders and Invoices are subject to corrections for any errors or omissions by Cohen & Master.

21. Definitions. In addition to the terms defined elsewhere in these Terms or in the Purchase Order or Invoice, the following terms have the meanings ascribed to them as follows: “Agreement” means, collectively, the Purchase Order, the Invoice, and these Terms, as same may be amended, restated or supplemented from time to time; “Business Day” means any day other than a Saturday, Sunday or statutory holiday in the Province of Ontario; “Customer”, “you”, “your” means the Customer identified in the Purchase Order; “Customer Location” means the location at which the Services are to be performed, as specified in the Purchase Order; “Invoice” means the invoice(s) issued to Customer by Cohen & Master from time to time in respect of the Services; “Parties” means Cohen & Master and Customer and “Party” means either one of them; and “Services” means the Services described in the Purchase Order.