Terms and Conditions - Lease & Service
1. Services Provided. During the Term, Company will provide the following services to Customer (the “Services”):
(a) Company will produce the Dining Shed for Customer’s use at the Location and have the Dining Shed delivered to the Location (including setup), in each case in accordance with Dining Shed Parameters (as specified in the Order Terms);
(b) During the first week of each December (subject to the applicable regulations of the New York State Department of Transportation or any other applicable governmental authority (collectively, the “Applicable Regulations”)), Company shall remove and store the Dining Shed; provided that Company shall provide Customer with at least three (3) days’ notice of each scheduled pick up date; and
(c) During the last week of each March (subject to the Applicable Regulations), Company shall deliver the Dining Shed to the Location and fully assemble the Dining Shed; provided that Company shall provide Customer with at least three (3) days’ notice of each scheduled delivery date.
2. Additional Services. In the event that Customer requests that Company perform additional services beyond what is provided for in this Agreement, Customer and Company will negotiate in good faith with respect to the terms and compensation for such additional services. Any agreement for additional services will be set forth in a new or amended agreement.
3. Use of Subcontractors. Customer acknowledges and agrees that the Services may be performed by subcontractors of Company; provided that Company will be responsible for the acts or omissions of such subcontractors to the same extent as Company is responsible for its own acts or omissions under this Agreement.
4. Customer Cooperation. For the duration of the Term, Customer shall provide Company with such cooperation, information, access and support reasonably required to allow Company to provide the Services.
5. Consideration. For the Services provided to Customer under this Agreement, Company shall be entitled to receive the fees set forth in the Order Terms and as otherwise set forth in this Agreement (the “Fees”). Payment terms and conditions shall be as indicated in the Order Terms. In the event that any Fees are not paid within ten (10) days of the applicable due date, Company may charge interest, at a rate equal to the lesser of (i) 1.5% per month and (ii) the maximum amount permitted by law, accruing daily, on such unpaid amounts until Company receives payment of such outstanding amounts. Company may, at its discretion, provide written notice to Customer of the late payment and the imposition of interest charges; provided that the absence of such notice shall not affect Customer’s obligation to pay the applicable interest charges. Payments received from Customer shall be applied first to any outstanding interest and second to unpaid Fee.
6. Ownership of Dining Shed. Company shall own the Dining Shed.
7. Termination.
(a) Either party hereto may terminate this Agreement immediately if the other party: (i) becomes insolvent or files or has filed against it a petition in bankruptcy to the extent permitted by law, or (ii) breaches the terms and conditions of this Agreement and has failed to cure such breach within ten (10) days after its receipt of notice thereof.
(b) Upon termination or expiration of this Agreement for any reason, (a) Company shall cease providing any Services to Customer, and (b) each party shall promptly return all materials and information related to the other party and/or its products, and any and all other property of the other party. If Company terminates the Agreement as a result of Customer’s failure to timely pay any applicable Fees after at least ten (10) days’ written notice to Customer of such failure to pay, Company may remove the Dining Shed at Customer’s sole cost and expense.
8. Independent Contractor. The parties acknowledge that Company is an independent contractor, and nothing contained herein shall be construed to place Company and Customer in the relationship of legal representative of the other, partners, employer/employee or joint venturers. Company shall be solely responsible for paying all local, state and federal income taxes, or other charges or withholdings, required by any governmental entity having jurisdiction over any of Company’s employees, and for making all necessary filings and reports in connection with, or relating to, any and all compensation received under this Agreement.
9. Intellectual Property
(a) Each party acknowledges and agrees that this Agreement does not confer upon it any rights whatsoever in and to the trademarks, trade names, logos or any other intellectual property rights owned or controlled by the other party, except as may be approved in writing by such other party.
(b) Company shall retain ownership of any and all intellectual property (including plans, specifications, design drawings and renderings) created in connection with the Services.
(c) Company shall have the right to take photos or videos of the Dining Shed, before, during and after completion of the Services, and to identify the Customer as a client of Company, in each case for use in connection with Company’s website and other marketing materials.
10. Representations and Warranties of Customer. Customer represents and warrants to Company that (a) Customer is fully able to enter into this Agreement and perform its obligations under this Agreement, (b) Customer has all necessary permits and authorizations required to install and maintain the Dining Shed and (c) Customer has reviewed the site plan submitted to the NYDOT.
11. Representations and Warranties of Company. Company represents and warrants to Customer that (a) it is fully able to enter into this Agreement and perform its obligations under this Agreement and (b) the Services performed under this Agreement will be performed in a professional and workmanlike manner and in compliance in all material respects with applicable laws. In addition, with respect to any manufacturing defects of the Dining Shed identified in writing to Company within two (2) years after the initial delivery of the Dining Shed, Company shall, at its cost, fix or replace such defect.
12. Indemnification.
(a) Each party hereto shall defend, indemnify and hold harmless the other party and its respective officers, directors, employees, agents and assigns (collectively, “Representatives”) from and against all claims, causes of action, damages, liabilities, fines, costs and expenses (including reasonable attorney’s fees) (“Losses”) which arise directly from such first party’s bad faith, grossly negligent or willfully wrongful acts or omissions or those of its Representatives, in connection with the goods and/or services provided in connection with this Agreement. Furthermore, Customer agrees to defend, indemnify and hold harmless Company from any Losses resulting from the acts or omissions of any person other than Company or its Representatives.
(b) Indemnified party will notify the indemnitor of any written legal claim, demand or cause of action asserted, instituted or threatened for which indemnitor is responsible within a reasonable time of receipt of the same; indemnitor shall be given control over the conduct and disposition of the claim, demand or cause of action; and indemnitor will receive the cooperation of the indemnified party during the pendency of the claim, demand or cause of action. The indemnified party shall have the right to participate in any lawsuit arising hereunder at their own expense after the indemnitor begins conducting the defense of a claim, demand or cause of action. If indemnitor does not begin defending the claim, demand or cause of action promptly after receiving notice of the same from the indemnified party, the indemnified party shall have the right to provide the defense and/or negotiate a settlement of the same and concurrently or thereafter enforce their rights under this clause against the indemnitor.
(c) Neither party shall be held in breach of or liable under this Agreement for any delay or non-performance of any provision of this Agreement caused by illness, emergency, fire, floods, strike, pandemic, earthquake, or any other conditions beyond the reasonable control of the non-performing party, including delays in the delivery of raw materials or parts by the supplier thereof, and the time of performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
(d) Notwithstanding anything to the contrary, (i) in no event shall either party be liable for any loss of profits, loss of use, business interruption or for any indirect, special, incidental or consequential damages (except to the extent awarded to a third party) and (ii) Company’s maximum liability arising out of or related to the Services shall not exceed the amount of the fees actually received by Company hereunder.
13. Warranty Disclaimer and Limitations. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND PROVIDER MAKES NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE DELIVERABLES, MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, OR OF FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE DELIVERABLES AND SERVICES PROVIDED BY PROVIDER HEREUNDER, AND WITH RESPECT TO THE USE OF THE FOREGOING.
14. Insurance. Customer shall maintain comprehensive general liability insurance, including contractual liability coverage, with a reputable and financially stable insurance provider throughout the Term, naming Company as an additional insured under such policy. Customer shall provide Company with a certificate of insurance evidencing the required coverage within seven (7) days of the execution of this Agreement and upon renewal or modification of said policy. The insurance policy shall include Company as an additional insured party on a primary and non-contributory basis. Company reserves the right to request proof of insurance coverage and amendments or endorsements at any time.
15. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when hand delivered, sent by email or when mailed by certified or registered mail, postage prepaid, return receipt requested, or when sent by reputable overnight courier, to the parties at the addresses first set forth on the signature page hereto, or at such other addresses as may be specified by like notice. All notices properly sent shall be deemed delivered upon actual receipt.
(b) Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the activities and obligations of the parties described and supersedes and is in full substitution for any and all prior agreements and understandings between them relating to such matters.
(c) Governing Law. The interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements entered into and to be performed wholly within such state.
(d) Jurisdiction. ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF NEW YORK IN EACH CASE LOCATED IN THE CITY OF NEW YORK AND COUNTY OF NEW YORK, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(e) Waiver of Jury Trial. EACH 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 OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(f) Attorneys’ Fees. In any action or proceeding brought by any party to this Agreement to enforce its rights under this Agreement, the prevailing party in such litigation, provided such litigation is resolved by judgment and not by settlement, shall be entitled to its reasonable attorneys’ fees, disbursements, costs and expenses incurred in enforcing such rights.
(g) Assignment. Neither party may assign this Agreement, or any right or obligation hereunder, without the prior written consent of the other party, and any attempted assignment without such consent shall be void; provided that Company may assign this Agreement in connection with a sale of substantially all of its assets.
(h) Waiver of Breach. The failure of a party at any time to require performance by the other party of any provision of this Agreement shall in no way affect such first party’s right thereafter to enforce the same, nor shall the waiver by a party of any breach of any provision of this Agreement be taken or held to be a waiver of any succeeding breach of any provision, or as a waiver of the provision itself.
(i) Severability. If any provision of this Agreement is determined to be illegal, invalid or unenforceable, in whole or in part, by an arbitrator or any court of competent jurisdiction, that provision or part thereof will be severed from this Agreement and the remaining part of such provision and all other provisions will continue in full force and effect.
(j) Counterparts; Electronic Signatures. A copy of this Agreement that is signed and delivered by facsimile or electronic signature (whether by PDF, any electronic signature complying with the US federal ESIGN Act of 2000 (e.g., www.docusign.com) or otherwise) shall be valid and effective for all purposes and this Agreement may be executed in any number of counterparts, which shall have same effect as if all signatory parties had signed the same document.
(k) Further Assurances. Each of Company and Customer agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and the transactions contemplated hereby.
