SERVICES AGREEMENT REDESIGN UPHOLSTERY
These Terms and Conditions, together with the Statement of Work attached hereto (collectively, the “Agreement”), constitute the agreement between REDESIGN UPHOLSTERY, LLC, a Nevada limited liability company (“Redesign Upholstery”), and the customer identified in the Statement of Work (“Customer”). Redesign Upholstery and Customer are sometimes referred in the Agreement collectively as the “Parties” and individually as a “Party.”
1.Applicability.These Terms and Conditions and the Statement of Work (i) are the only terms and conditions that govern the provision of the Services (as defined below) by Redesign Upholstery to Customer under the Agreement; (ii) comprise the entire agreement between the Parties; and (iii) supersede all prior understandings, agreements, negotiations, bids, estimates, and representations, both written and oral. Upon any conflict between these Terms and Conditions and the Statement of Work, the Statement of Work shall govern. The terms and conditions of the Agreement shall prevail over any request for proposal, proposal, estimate, bid, order, or other oral or written terms and conditions provided by Customer. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions, and does not serve to modify or amend the Agreement.
2.Services. Redesign Upholstery shall provide the services to Customer described in the Statement of Work (the “Services”) in accordance with the terms and conditions of the Agreement.
3.Performance Dates. Redesign Upholstery shall use reasonable efforts to meet any performance dates specified in the Statement of Work, and any such dates shall be estimates only.
4.Customer’s Obligations. Customer shall: (i) cooperate with Redesign Upholstery in all matters relating to Redesign Upholstery’s performance of the Services; and (ii) respond promptly to any request to provide direction, information, or approvals that are necessary for Redesign Upholstery to perform the Services. If Redesign Upholstery’s performance under the Agreement is prevented or delayed by any act or omission of Customer or its agents, contractors, consultants, or employees, Redesign Upholstery shall not be deemed in breach of its obligations under the Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
5.Change Orders.Customer may submit a written request for change in the Services. Redesign Upholstery shall provide a written response to Customer proposing adjustments to the Statement of Work based on the requested change. The Parties shall endeavor to agree upon an amended Statement of Work. Neither Party shall be bound by any request for a change unless a revised Statement of Work is executed by the Parties. Additionally, Redesign Upholstery may modify the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, the fees or costs, or any performance dates set forth in the Statement of Work.
6.Fees and Costs; Payment Terms. In consideration of the performance of the Services by Redesign Upholstery and the rights granted to Customer under the Agreement, Customer shall pay the fees and costs set forth in the Statement of Work. Customer shall pay all invoiced amounts within 20 days from the date of the invoice, or as otherwise provided in the Statement of Work. Customer shall make all payments in U.S. dollars. If any payment is not received by Redesign Upholstery by the due date, Redesign Upholstery may (i) charge a late fee of five percent (5%) of the past due amount; (ii) charge interest on the unpaid amounts at a rate of 1.5% per month, compounded monthly, or, if lower, the maximum amount permitted under applicable law; (iii) suspend performance of Services until payment has been made in full; and/or (iv) exercise any other right or remedy available under the Agreement or under applicable law. Acceptance of third party payments is an accommodation only and does not create any relationship between Redesign Upholstery and the third party.
7.Additional Terms. With respect to items to be re-upholstered, old covers will be removed and will be discarded unless Customer advises Redesign Upholstery in writing to return the old cover. A $50 per month storage fee applies to work not picked up by Customer within 30 days after notice. Rush order are subject to additional fees.
8.Taxes. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer under the Agreement.
9.Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures, inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Customer under the Agreement or prepared by or on behalf of Redesign Upholstery in the course of performing the Services (collectively, the “Deliverables”), shall be owned by Redesign Upholstery. Redesign Upholstery hereby grants Customer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services. Unless otherwise provided in the Statement of Work or in a written notice from Customer to Redesign Upholstery, Customer hereby grants to Redesign Upholstery the right to use pictures, descriptions, and other depictions of the Services and Deliverables for promotional and marketing purposes.
10.Confidential Information. All non-public, confidential, or proprietary information of Redesign Upholstery, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Redesign Upholstery 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 provision of the Services and the Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Redesign Upholstery. Confidential Information does not include 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. Customer shall use any Confidential Information only to the extent necessary to make use of the Services and Deliverables. Redesign Upholstery shall be entitled to injunctive relief for any violation of this Section.
11.Representation and Warranty.
(a)Redesign Upholstery represents and warrants to Customer that it will perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, and shall devote adequate resources to meet its obligations under the Agreement.
(b)Upon delivery of the work product to Customer, Customer shall promptly examine the work product, and within 30 days after delivery Customer shall give Redesign Upholstery written notice of any defects or deficiencies in the work product. Redesign Upholstery shall not be liable for a breach of the warranty set forth in Section 11(a) unless Customer gives written notice of the deficiency, reasonably described, to Redesign Upholstery within 30 days after delivery, or if the deficiency is latent and not reasonably discoverable upon inspection, then within 30 days after discovery, but in no event later than 90 days after delivery of the work product.
(c)Subject to Section 11(b), Redesign Upholstery shall, in its sole discretion, either: (i) repair or re-perform such Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate.
(d)THE REMEDY SET FORTH IN SECTION 11(c) ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND REDESIGN UPHOLSTERY’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTY SET FORTH IN SECTION 11(a).
12.Disclaimer of Warranties.
(a)EXCEPT FOR THE WARRANTY IN SECTION 11(A), REDESIGN UPHOLSTERY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) 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)Furthermore, Redesign Upholstery makes no representation or warranty concerning fabrics and other materials incorporated into the work product and will not be responsible for flaws in such materials, normal wear and tear, behavior of any cover fabrics, fading, shrinkage, misuse, or abuse of any work delivered by Redesigned Upholstery. If Customer supplies materials to Redesign Upholstery, it is the Customer’s responsibility to ensure that the materials are suitable for the purpose for which they are intended to be used, and that the same comply with fire and safety regulations.
13.Limitation of Liability.
(a)REDESIGN UPHOLSTERY SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT REDESIGN UPHOLSTERY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b)IN ALL EVENTS, AND WITHOUT LIMITING ANY OTHER PROVISION IN THE AGREEMENT, THE TOTAL LIABILITY OF REDESIGN UPHOLSTERY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED TWO (2) TIMES THE AMOUNTS PAID OR PAYABLE TO REDESIGN UPHOLSTERY UNDER THE AGREEMENT.
(a)In addition to any remedies that may be provided under the Agreement, Redesign Upholstery may terminate the Agreement upon written notice to Customer(i) fails to pay any amount when due under the Agreement and such failure continues for five business days after Customer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of the terms of the Agreement, in whole or in part within five business days after Customer’s receipt of written notice of such non-compliance; 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.
(b)If Customer terminates this Agreement at any time prior to completion for any reason other than the default of Redesign Upholstery, Customer shall be liable for all costs, damages, and losses incurred by Redesign Upholstery arising from or in connection with such termination, including, without limitation, lost profits; provided, however, that if the termination is prior to commencement of production, Customer agrees to pay damages to Redesign Upholstery in the amount of 20% of the total price described in the Statement of Work.
15.Waiver. No waiver by Redesign Upholstery of a provision of the Agreement is effective unless explicitly set forth in writing and signed by Redesign Upholstery. No failure to exercise, or delay in exercising, any rights, remedy, or power arising from the Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, or power precludes any other or further exercise thereof or the exercise of any other right, remedy, or power.
16.Force Majeure. Redesign Upholstery shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Redesign Upholstery including, without limitation, acts of God, natural disaster, governmental actions, war, foreign invasions, terrorist threats or acts, riots or other civil unrest, national emergency, epidemic, strikes or other labor disputes, restraints or delays affecting transportation, inability or delay in obtaining supplies of adequate or suitable materials, telecommunication breakdown, or power outage, provided that, if the event in question continues for a continuous period in excess of 90 days, Customer shall be entitled to give notice in writing to Redesign Upholstery to terminate the Agreement.
17.Assignment. Customer shall not assign its rights or delegate its obligations under the Agreement without the prior written consent of Redesign Upholstery. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of its obligations under the Agreement.
18.Relationship of the Parties. The Parties are independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties.
19.No Third-Party Beneficiaries. The Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature.
20.Governing Law. All matters arising out of or relating to the Agreement are governed by and construed in accordance with the internal laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule (whether of the State of Nevada or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Nevada.
21.Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to the Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Nevada in each case located in Clark County, Nevada, and each Party irrevocably submits to the exclusive jurisdiction of such courts.
22.Notices. All notices and other communications under the Agreement shall be in writing and addressed to the applicable Party at the address set forth in the Statement of Work or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail.
23.Severability. If any provision of the Agreement is invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other provision of the Agreement.
24.Survival. Provisions of the Agreement which by their nature apply beyond the termination of the Agreement, will remain in force after termination or expiration of the Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law, Submission to Jurisdiction, and Survival.
25.Amendment. The Agreement may be amended only by written agreement signed by each Party.