116 



TRANSACTIONS OF THE AMERICAN SOCIETY 



SUGGESTED FORM OF AGREEMENT BETWEEN NURSERY AND CLIENT. 



TO BE USED BY LANDSCAPE ARCHITECT WHEN PLACING NURSERY 



ORDERS FOR CLIENTS 



AGREEMENT BETWEEN 

 AND 



IN CONSIDERATION of the sum of 



and of the statements contained in the schedule 

 hereinafter set forth, , 



hereinafter called the Nursery, hereby agrees 

 to furnish and deliver as directed all of the 

 plants specified in the appended list, and re- 

 place, free of charge, any or all of the plants 

 furnished which are dead, dying, or seriously 

 defective in vitality, on demand of the owner 

 or of the Landscape Architect representing 

 him, hereinafter called his agent, upon the 

 following conditions; 



1st. That the total contract price of the 

 plants be paid thirty days after the acceptance 

 of said plants by the owner or his agents, as 

 per Condition 4. 



2nd. That the replacement be made with 

 plants of the same variety, size and quality, 

 and under the same terms, conditions and 

 specifications set forth in the list herewith ap- 

 pended. 



3rd. That no plant shall be replaced more 

 than once. 



4th. That this agreement shall be valid for 



a period of calendar months from the 



date of acceptance by the owner or his agent 

 of the plants contracted for. A copy of said 

 letter of acceptance shall be appended to and 

 made part of this agreement. 



5th. That the acceptance of the plants con- 

 tracted for shall not be delayed by the owner 

 or his agent beyond thirty days after the re- 

 ceipt of the plants. 



6th. That the owner or his agent shall 

 promptly and diligently endeavor to ascertain 

 whether damage to the plants has been done 

 on account of delays or actual injury in trans- 

 portation and, in case of such damage, shall 

 make claims upon the responsible common 

 carriers and assign said claims to the Nursery. 



7th. By the acceptance of this agreement, 

 the Nursery waives all claims to refuse re- 

 placement of plants on account of their unfit- 

 ness to stand climatic, soil or exposure con- 

 ditions of the locality where transplanted; or 

 on account of alleged negligence of the owner 



or his agent in properly caring for and pro- 

 tecting the plants, provided however, that the 

 Nursery shall not be held liable to replace 

 plants which may be damaged or killed by fire, 

 inundation or earthquake, or as a result of 

 actionable damages by a third party. 



8th. The Nursery shall have a right to as- 

 certain whether the plants sold receive, during 

 the period of this agreement, the care which 

 is indispensible for their growth. To this pur- 

 pose the Nursery may notify the owner or his 

 agent in writing of the conditions found and 

 of the proper remedy. 



9th. In case of controversy between the 

 Owner and the Nursery over matters pertain- 

 ing to this agreement, the Owner and the 

 Nursery shall request the Landscape Architect 

 to render a decision within a reasonable time. 

 If the Landscape .Architect fails to render a 

 decision, or if his decision is not acceptable to 

 both the Owner and the Nursery, or to either 

 of them, then an appeal to arbitration shall be 

 taken. The parties may agree upon one ar- 

 bitrator; otherwise there shall be three, 

 one named in writing by each party, and the 

 third chosen by these two arbitrators or, if 

 they fail to select a third within ten days, he 

 shall be chosen by the presiding officer of the 

 nearest Bar Association. Should the party de- 

 manding arbitration fail to name an arbitrator 

 within ten days of his demand, his right to 

 arbitration shall lapse. Should the other party 

 fail to choose an arbitrator within such ten 

 days, the Landscape Architect shall appoint 

 such arbitrator. Should either party refuse or 

 neglect to supply the arbitrators with any 

 papers or information demanded in writing, 

 the arbitrators are empowered by both parties 

 to take ex parte proceedings. The arbitrators 

 shall act with promptness. The decision of 

 the arbitrators upon any question subject to 

 arbitration under this contract shall be a con- 

 dition precedent to any right of legal action. 

 The arbitrators, if they deem that the case 

 demands it, are authorized to award to the 

 party whose contention is sustained such sums 

 as they shall deem proper for the time, ex- 

 pense and trouble incident to the appeal, and 

 if tlie appeal was taken without reasonable 

 cause, damages for delay. The arbitrators 

 shall fix their own compensation unless other- 

 wise provided by agreement and shall assess 



