These Terms and Conditions (the “Terms and Conditions”), are effective as of the date Client signs the applicable Quote (the “Effective Date”), and are entered into by and between Clozzits Inc., a Delaware corporation (“Clozzits”) and the client listed on the applicable Quote (“Client”). Clozzits and Client may be referred to individually as a “Party” or collectively as the “Parties”.
SIGNING THE QUOTE, OR OTHERWISE USING THE SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND CONDITIONS; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; (C) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY BY WHICH YOU ARE SIGNING ON BEHALF OF; AND (D) ACCEPT THESE TERMS AND CONDITIONS AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE CLOZZITS SERVICES.
A. Clozzits has the capability and capacity to provide certain design, manufacturing, and installation services related to Clozzits’s Designs provided to Client as further described in and approved through the applicable Quote; and
B. Client desires to retain Clozzits to provide the said services, and Clozzits is willing to perform such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Clozzits and Client agree as follows:
1. Services. Clozzits shall provide to Client the services (including the Design Services as defined below, the “Services”) set out in one or more quotes to implement the design(s) created for Client (each a “Design”) for the spaces located at the Location set forth on the applicable quote (each a “Quote”), which must be approved and signed by Client and Clozzits in each case. Quotes may include but shall not be limited to, the location for the Service (“Location”), items for purchase, related shipping costs, price discounts or offers, itemized pricing, or project schedules.
(a) Design Services. As part of a Quote or as otherwise agreed to between the Parties, before commencing additional Services to execute any given Design, Client may seek design services from Clozzits to create Designs for a particular Location (“Design Services”). Such Design Services are provided in light of a potential implementation, installation, product manufacturing and service relationship between the Parties for Clozzits to implement the Designs into a Client Location and subject to a potential Quote. In order to provide Design Services, Clozzits may request information from Client, including but not limited to Client’s name, email, address, space/closet dimensions, and other Design requirements of Clozzits. Clozzits shall not be liable or responsible for Client’s failure or delay in cooperating with Clozzits in its provision of any Services. Design Services may be subject to a separate Quote or other document subject to these Terms and Conditions before additional Services are contracted to implement the Designs at an applicable Location in a separate Quote. Such Quote or documentation process shall be a Clozzits’ sole and absolute discretion. As part of the Design Services, Client will provide the relevant space information upon Clozzit’s request. All Designs are provided, in part, using information, including dimensions and other key space details, provided by Client about the space for the applicable Design and its Location. Clozzits makes no representation or warranty as to the accuracy of the provided Design(s), particularly as it relates to the information about the space Client provided. Client shall not use any Designs created by Clozzits for any other purpose outside of using the Designs to be implemented at a Location by Clozzits and subject to an applicable Quote.
(b) Acceptance of Deliverables. Within twelve (12) hours of the completion of Services outlined in the Quote, Client shall provide Clozzits with written notice of any failure of any Deliverable (as defined below) to materially conform to the functional specifications set forth in the applicable Quote. Clozzits and Client shall review the objections, and Clozzits will use commercially reasonable efforts to correct any material non-conformity with the functional specifications and provide Client with a revised deliverable within fifteen (15) calendar days thereafter. Client shall have deemed to have accepted the deliverable if Clozzits does not receive written notice of Client's objections within said twelve (12) hour period. This Section is Client’s sole and exclusive remedy with respect to non-conformity of a Deliverable, provided that some Deliverables may also be subject to the Product Warranty (defined below).
(c) Changes. Client may request changes in the Designs, Services or Deliverables for Clozzits’s review and acceptance. Clozzits will review such requests and accept them at Clozzits’s sole discretion. If Clozzits accepts and such changes, Clozzits will submit a change order to the existing Quote (each a “Change Order”) for Client’s review and acceptance. Client hereby agrees that no Change Order terms shall apply until after Client accepts the Change Order terms applicable to the Quote subject to such Change Order, and that additions or changes may impact the pricing, timeline, or other terms of the existing Quote. Clozzits shall not be responsible for any delays or changes to Designs, Services or Deliverables upon a Change Order request or due to Client’s delay in accepting or rejecting Change Order terms. Client agrees that when additional work is added or changes are made to the Quote through a Change Order, the duration of the Service may be extended accordingly at Clozzits’s reasonable discretion.
(d) Location Conditions. When providing Services at any Location:
(i) Clozzits will take reasonable caution to protect floors, walls, ceilings, furniture, and adjoining rooms during the Services by the use of paper, cardboard, and/or plastic secured (when applicable) by painter’s tape. Client understands that, unless specifically stated in the approved estimate, cleaning of your home or condo is not included. Clozzits will broom sweep the workspace upon completion. Any additional cleaning needed will be the Client’s responsibility. Once Client occupies the Location, future cleaning will be at the Client's expense. Client understands that damage to the finish of wood, tile, glass, walls, furniture, or any surface as a result of tape adhesive is possible. Clozzits shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders of public authorities bearing on performance of the Services; provided, however, that Company shall not be responsible for cost of obtaining approvals or certifications from any engineer or architect (unless the need for such approvals is directly a result of defective Services by Clozzits).
(ii) Client agrees that Clozzits is not responsible for slab or subfloor conditions which are unknown as of the Effective Date. Any floating, sealant, or carpentry needed due to cracks or uneven areas on the floors will be billed at the standard rates of Clozzits and shall be set forth in an applicable Change Order if necessary. Installation of baseboards, shoe molding, thresholds, and door jams are not included in the Service unless specifically stated in the Quote.
(iv) Client agrees that Clozzits is not responsible for (A) uneven walls, surfaces, or for measurements provided by Client to Clozzits, or (B) obstructions at the Location, such as electrical panels, cable boxes, routers, security systems, windows, doors, HVAC equipment, hot water heaters or other Location obstructions, which result in the Deliverables not fitting the applicable space for the Design. Any additional Services needed to modify the Deliverables to fit within the space due to the variance will be billed at the standard rates of Clozzits and shall be set forth in the applicable Change Order if necessary.
(v) Client agrees that Clozzits is not responsible for any other Location conditions when implementing the Design outside of the Services, which may result in the Deliverables not fitting the applicable space for the Design or Location damage, including but not limited to punctured water, HVAC, sewer or drain lines located at the Location unbeknownst to Clozzits.
(e) Client Access. Client shall have access to the Location with reasonable notice to ensure no hazardous situation exist that would put either Client or any invitee of Client in risk of bodily harm or death. Client is responsible for following all directions and guidelines supplied by Clozzits for any hazardous, potentially dangerous, or active construction zones that are active during the Service, including but not limited to preventing access to certain areas with caution tape or other signs or notices provided by Clozzits. If Client fails to follow any such instruction of Clozzits which causes damage to the Services performed or delays the Service or delivery of Deliverables in any way, Client hereby accepts to pay for the costs of such damages, the fees for the labor Clozzits must perform, and any delays to the Services resulting therefrom. Client shall take all necessary precautions to prevent children, pets, neighbors or the elderly from entering contracted Service areas and releases Clozzits from any and all liability for injury or damage to such children or pets in the event all necessary precautions are not taken.
(f) Performance and Work Environment. Client agrees to let Clozzits use the techniques of its choosing, in accordance with applicable building code and manufacturers installation specifications, for completing the Services. Client agrees not to threaten, intrude on the personal space of or harass Clozzits's employees, officers, directors, or contractors. Violence, yelling, threats, or intimidation create an unsafe work environment and will not be tolerated and, to ensure the safety of Clozzits and its personnel, and Client and Clozzits agree that if Client violates this Section 1(e), Clozzits may terminate these Terms and Conditions and any Quote by providing twenty-four (24) hours’ advanced written notice to Client with no recourse for such termination against Clozzits.
2. Clozzits Obligations. Clozzits shall:
(a) Appoint representatives to the following positions:
(i) A primary contact to act as its authorized representative with respect to all matters pertaining to these Terms and Conditions (the “Clozzits Contract Manager”);
(ii) A number of employees or contractors that it deems sufficient to perform the Services set out in the applicable Quote, (collectively, with the Clozzits Contract Manager, “Provider Representatives”)
(b) Maintain complete and accurate records relating to the provision of the Services under these Terms and Conditions.
3. Client Obligations. Client shall:
(a) Appoint representatives to the following positions:
(i) Designate one of its employees or agents to serve as its primary contact with respect to these Terms and Conditions and to act as its authorized representative with respect to matters pertaining to these Terms and Conditions (the “Client Contract Manager”), with such designation to remain in force unless and until a successor Client Contract Manager is appointed;
(ii) Require that the Client Contract Manager respond promptly to any reasonable requests from Clozzits for instructions, information, or approvals required by Clozzits to provide the Services;
(iii) Cooperate with Clozzits in its performance of the Services and provide access to Client's premises, employees, contractors, and equipment as required to enable Clozzits to provide the Services; and
(iv) Take all steps necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in Clozzits's provision of the Services.
4. Fees and Expenses.
(a) In consideration of the provision of the Services by the Clozzits and the rights granted to Client under these Terms and Conditions, Client shall pay the fees (“Fees”) set out in the applicable Quote. Payment to Clozzits of such Fees and the reimbursement of expenses pursuant to this Section 0 shall constitute payment in full for the performance of the Services. Unless otherwise provided in the applicable Quote, all Fees will be due and payable upon completion of the Services. All Fees shall be due thirty (30) days from the date of Clozzits’s invoice. Clozzits may require Fees be paid on or through the Clozzits website or by other means as reasonably requested by Clozzits. Clozzits shall have the right to increase or otherwise revise the Fees set forth in any applicable Quote by providing Client thirty (30) days’ written notice.
(b) Client shall reimburse Clozzits for all reasonable expenses incurred in accordance with the applicable Quote within fifteen (15) days of receipt by the Client of an invoice from Clozzits. Clozzits will obtain prior written approval from Client for any expenses over $250.00.
(c) Client 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 Client hereunder; and to the extent Clozzits is required to pay any such sales, use, excise, or other taxes or other duties or charges, Client shall reimburse Clozzits in connection with its payment of fees and expenses as set forth in this Section 0. Notwithstanding the previous sentence, in no event shall Client pay or be responsible for any taxes imposed on, or regarding, Clozzits' income, revenues, gross receipts, personnel, or real or personal property or other assets.
(d) All late payments shall bear interest at the lesser of (a) the rate of 1.5% per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall also reimburse Clozzits for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees, costs, and expenses. In addition to all other remedies available under these Terms and Conditions or at law (which Clozzits does not waive by the exercise of any rights hereunder), Clozzits shall be entitled to suspend the provision of any Services if the Client fails to pay any Fees or other amounts when due hereunder.
(e) Client shall not, and acknowledges that it will have no right, under these Terms and Conditions, any Quote, any other agreement, document or law to, withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Clozzits or any of its affiliates, whether under these Terms and Conditions or otherwise, against any other amount owed (or to become due and owing) to it by Clozzits or its affiliates, whether relating to Clozzits's or its affiliates' breach or non-performance of these Terms and Conditions, any Quote, any other agreement between (a) Client or any of its affiliates and (b) Clozzits or any of its affiliates, or otherwise.
5. Limited Warranty.
(a) Clozzits Warranty. Clozzits warrants that it shall perform the Services:
(i) In accordance with the terms and subject to the conditions set out in the respective Quote.
(ii) In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
(b) Clozzits Product Warranty. Subject to the provisions of Sections 5(c) through 5(f), Clozzits warrants to Client (the “Product Warranty”) that (i) for a period of ten (10) years from the date the Deliverables are delivered in full as part of the Service (the "Warranty Period"), each Deliverable will materially conform to specifications set forth in the applicable Quote and will be free from significant defects in material and workmanship, and (ii) Client will receive good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind.
(c) Product Warranty Limitations. The Product Warranty does not apply to any Deliverables that:
(i) have been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal
(ii) have been reconstructed, repaired, or altered by any person other than Clozzits or its authorized representatives;
(iii) are Designs or part of the Design Services; or
(iv) have been used with any Third-Party Products, hardware, or product that has not been previously approved in writing by Clozzits.
(d) Clozzits’s Exclusive Remedy for Defective Deliverables. Notwithstanding any other provision of these Terms and Conditions (except for Section 5(f)), this Section contains Client’s exclusive remedy for Deliverables not in conformance with the Product Warranty. Client's remedy under this Section is conditioned upon Client’s compliance with its obligations under Sections 5(d)(i) and 5(d)(ii) below. During the Warranty Period, with respect to any alleged Deliverables which do not conform with the Product Warranty:
(i) Client shall notify Clozzits, in writing by emailing Clozzits at support@Clozzits.com, of any alleged claim or defect within five (5) business days from the date Client discovers, or upon reasonable inspection should have discovered, such alleged claim or defect (but in any event before the expiration of the applicable Warranty Period).
(ii) Client shall provide proof through images or work with Clozzits to schedule an in-person inspection, at Clozzits’s discretion, for inspection and testing by Clozzits;
(iii) if Clozzits's inspection and testing reveal, to Clozzits's reasonable satisfaction, that such Deliverables do not conform to the Product Warranty and any such defect has not been caused or contributed to by any of the factors described under Section 5(c) above, Clozzits shall in its sole discretion and at its expense, repair or replace such Deliverables which do not conform to the Product Warranty; and
(iv) Clozzits shall repair or replace the Deliverables within thirty (30) days from the date Section 5(d)(iii) is satisfied.
Client has no right to return for repair, replacement, credit, or refund any Deliverable except as set forth in this Section 5(d). In no event shall Client reconstruct, repair, alter or replace any Deliverable, in whole or in part, either itself or by or through any third party. SUBJECT TO SECTION 5(f), THIS SECTION 5(d) SETS FORTH CLIENT'S SOLE REMEDY AND CLOZZITS'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED PRODUCT WARRANTY SET FORTH IN SECTION 5(c).
(e) DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 5, ALL SERVICES AND DESIGNS ARE PROVIDED TO CLIENT “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND, AND (A) NEITHER CLOZZITS NOR ANY PERSON ON CLOZZITS' BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR PERFORMANCE OF GOODS OR PRODUCTS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) CLIENT ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY CLOZZITS, OR ANY OTHER PERSON ON CLOZZITS' BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTIONS 5(a) AND 5(b). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO CLIENT.
(f) Third-Party Products. Client acknowledges that the Deliverables purchased by Client under these Terms and Conditions may contain, be contained in, incorporated into, attached to, or packaged together with products manufactured by a third party ("Third-Party Products"). Third-Party Products are not covered by the warranty in Section 5(a). For the avoidance of doubt, Clozzits makes no representations or warranties with respect to any Third-Party Products.
6. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and 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 Client, including all Designs, under these Terms and Conditions or prepared by or on behalf of the Clozzits in the course of performing the Services (collectively, the “Deliverables”), except for any Confidential Information of Client or Client materials, shall be owned by Clozzits. Clozzits hereby grants Client a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services. Client shall not use the Services, including but not limited to the Designs or Third-Party Products, in any way that infringes or misappropriates such Clozzits, or, in the case of Third-Party Products, such third-party’s Intellectual Property Rights.
7. Confidentiality. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, 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 these Terms and Conditions (the “Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy. For purposes of this Section 7 only, Receiving Party's Group shall mean Receiving Party, the Receiving Party's affiliates and their respective employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, Clozzitss, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
8. Term, Termination, and Survival. The term of these Terms and Conditions shall commence as of the Effective Date set forth above and shall continue until the Services are completed, unless earlier terminated as provided below (the “Term”). Any extension of the Term will be subject to mutual written agreement between the Parties.
(a) Termination for Convenience. Either Party, in its sole discretion, may terminate these Terms and Conditions or any Quote, in whole or in part, at any time without cause, and without liability except, subject to Section 8(e), for required payment for Services rendered, and reimbursement for expenses incurred, prior to the termination date, by providing at least ten (10) days’ prior written notice to the other Party.
(b) Termination for Cause. Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:
(i) Breaches this Agreement, and the Defaulting Party does not cure such breach within five (5) days after receipt of written notice of such breach, or such breach is incapable of cure.
(ii) Becomes insolvent or admits its inability to pay its debts generally as they become due; becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within sixty calendar days or is not dismissed or vacated within 90 calendar days after filing; is dissolved or liquidated or takes any corporate action for such purpose; makes a general assignment for the benefit of creditors; or has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Notwithstanding anything to the contrary in Section 0, Clozzits may terminate these Terms and Conditions before the expiration date of the Term on written notice if Client fails to pay any amount when due hereunder and such failure continues for two (2) days after Client's receipt of written notice of nonpayment.
(d) The rights and obligations of the Parties set forth in this Section 8(d) and in Sections 5, 6, 7, 9, 10, 21, 22, and 23, and any right or obligation of the Parties in these Terms and Conditions which, by its nature, should survive termination or expiration of these Terms and Conditions, will survive any such termination or expiration of these Terms and Conditions.
(e) If Client terminates these Terms and Conditions or the applicable Quote for any reason, Clozzits shall be entitled to retain the greater of (i) twenty percent (20%) of the total amount of Fees due for the applicable Quote, or (ii) the amount of Fees due for Services rendered and expenses incurred up to the date of termination.
(a) Client Indemnification. Subject to the terms and conditions of these Terms and Conditions, including those set forth in Section 9(b), Client (as "Indemnifying Party") shall indemnify, defend and hold harmless Clozzits and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under these Terms and Conditions and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, "Losses"), arising out or resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) alleging: (i) breach or non-fulfillment of any representation, warranty, or covenant under these Terms and Conditions by Indemnifying Party; (ii) any negligent or more culpable act or omission of Indemnifying Party (including any recklessness or willful misconduct) in connection with the performance of its obligations under these Terms and Conditions; (iii) any bodily injury, death of any person or damage to real or tangible personal property caused by the negligent or willful acts or omissions of Indemnifying Party; and (iv) any failure by Indemnifying Party to comply with any applicable laws.
(b) Exceptions and Limitations to Indemnification. Notwithstanding anything to the contrary in these Terms and Conditions, Indemnifying Party is not obligated to indemnify or defend Indemnified Party against any claim (direct or indirect) if such claim or corresponding Losses arise out of or result from, in whole, Indemnified Party's: (i) gross negligence or more culpable act or omission (including recklessness or willful misconduct); and (ii) bad faith failure to materially comply with any of its material obligations set forth in these Terms and Conditions.
(c) Notwithstanding anything to the contrary in these Terms and Conditions, this Section 9 does not apply to any claim (direct or indirect) for which a sole or exclusive remedy is provided for under another section of these Terms and Conditions.
10. Limitation of Liability and Assumption of Risk. IN NO EVENT SHALL CLOZZITS BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT CLOZZITS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL CLOZZITS'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED [THE AGGREGATE AMOUNTS PAID OR PAYABLE TO CLOZZITS UNDER THE APPLICABLE QUOTE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLIENT ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY DELIVERABLES, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY CLOZZITS, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE DELIVERABLES.
11. Insurance. During the term of this Agreement and for a period of ninety (90) days thereafter, each Party shall, at its own expense, maintain and carry insurance with financially sound and reputable insurers, in full force and effect that includes, but is not limited to the following:
(a) Commercial General Liability: in a sum no less than [$1,000,000 per claim and $3,000,000 in the aggregate] [$5,000,000 per claim and $10,000,000 in the aggregate];
(b) Workers Compensation Insurance: Statutory Limits for each state in which a party is required to have Workers Compensation Insurance;
(c) Employment Liability: At least [$500,000 per claim/occurrence];
(d) Automobile Liability: Not less than [$1,000,000 per claim]
(e) a certificate of insurance from its insurer evidencing the insurance coverage specified in these Terms and Conditions. The certificate of insurance shall name the other Party as an additional insured. Each Party shall provide the other Party with 30 days' advance written notice in the event of a cancellation or material change in its insurance policy.
12. Publicity Rights. Client understands and accepts that Clozzits may take photos, videos, or other forms of media to capture the Designs and/or Services performed at Client’s Location for use in Clozzits’s promotional or marketing materials, including but not limited to on Clozzits’s website or social media accounts. Client hereby grants Clozzits a perpetual, fully paid, sublicensable right and unrestricted permission to use such materials (including images and videos) to Clozzits for such purposes.
13. Entire Agreement. These Terms and Conditions, including and together with any related Quote, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The Parties acknowledge and agree that if there is any conflict between the terms and conditions of these Terms and Conditions and the terms and conditions of any Quote, the terms and conditions of these Terms and Conditions shall supersede and control, unless such Quote expressly references that it is amending these Terms and Conditions and the relevant sections being amended.
14. Notices. All notices, requests, consents, claims, demands, waivers and other communications under these Terms and Conditions (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address or email set forth in the applicable Quote (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail, or email (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms and Conditions, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 14.
15. Severability. If any term or provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
16. Amendments. No amendment to or modification of, or rescission, termination or discharge of, these Terms and Conditions is effective unless it is in writing and signed by an authorized representative of each Party.
17. Waiver. No waiver by any Party of any of the provisions of these Terms and Conditions shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms and Conditions shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. Assignment. Client shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under these Terms and Conditions without the prior written consent of Clozzits. Any purported assignment or delegation in violation of this Section 188 shall be null and void. No assignment or delegation shall relieve the Client of any of its obligations under this Agreement.
19. Successors and Assigns. Subject to Section 18 above, these Terms and Conditions is binding on and inures to the benefit of the Parties to these Terms and Conditions and their respective permitted successors and permitted assigns.
20. Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by Clozzits shall be under its own control, Client being interested only in the results thereof. The Clozzits shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in these Terms and Conditions shall give the Client the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. The Services must meet the Client's final approval and shall be subject to the Client's general right of inspection throughout the performance of the Services and to secure satisfactory final completion. Nothing contained in these Terms and Conditions shall 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 shall have authority to contract for or bind the other party in any manner whatsoever.
21. No Third-Party Beneficiaries. These Terms and Conditions benefits solely the Parties to these Terms and Conditions and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
22. Choice of Law. These Terms and Conditions and all related documents, including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State Texas, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
23. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the US District Court for the Northern District of Texas or, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Dallas County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
24. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
25. Counterparts. These Terms and Conditions may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
26. Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of these Terms and Conditions (except for any obligations of the Client to make payments to Clozzits hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, hurricane, pandemic, endemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party.
The Impacted Party shall give notice within three (3) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section 26, the other Party may thereafter terminate these Terms and Conditions upon written notice.