Terms of Service
GENERAL TERMS AND CONDITIONS FOR SERVICES
1. Applicability; Enforceability.
(a) These terms and conditions for services (these "Terms") together with our statement of work (the "SoW") are the only terms that govern the provision of services by 97Brickell LLC, a Florida limited liability company ("Service Provider") to you or the company on whose behalf you are requesting the Services ("Customer").
(b) The SoW and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the SoW, these Terms shall govern, unless the SoW expressly states that the terms and conditions of the SoW shall control.
(c) This Agreement constitutes a legal agreement between Service Provider and Customer, and is made effective as of the date on which Customer submits its acceptance of the Terms and the SoW by countersignature (including digital signature or click-to-accept) of the SoW.
(d) By accepting this Agreement:
(i) Customer agrees to be bound by these Terms and the SoW;
(ii) if you are agreeing to be bound by this Agreement as an individual,
you represent and warrant that you are of the legal age of majority and have the right and authority to agree to this Agreement;
(iii) if you are agreeing to be bound by this Agreement on behalf of your employer, company, or such other legal entity on whose behalf you are acting, (a) you represent and warrant that you have all requisite legal authority to bind such employer, company or other entity to this Agreement; and (b) “Customer” as used herein shall refer to such employer, company or other entity;
(iv) you represent and warrant that you are not barred or otherwise legally prohibited from contracting with the Service Provider pursuant to the terms hereof for purposes of obtaining the Services (as defined below);
(e) These Terms prevail over any of Customer's general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. 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 these Terms.
2. Services. Service Provider shall provide the services to Customer as described in the SoW (the "Services") in accordance with these Terms. Customer agrees and acknowledges that Service Provider shall only be obligated to perform such Services and that any services not expressly indicated on the SoW are excluded from Service Provider’s scope of work, subject to any Change Order (as defined in Section 6 below) signed and agreed to by both parties in respect of such additional services.
3. Performance Dates. Service Provider shall use reasonable efforts to meet any performance dates specified in the SoW, provided, that, Customer acknowledges and agrees that any such dates shall be estimates only.
4. Customer's Obligations. Customer shall:
(a) cooperate with Service Provider in all matters relating to the Services and provide such access to Customer's premises, and such office accommodation and other facilities as may reasonably be requested by Service Provider, for the purposes of performing the Services;
(b) respond promptly (but in any event no later than three (3) days following the receipt thereof) to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement;
(c) provide such Customer materials or information as Service Provider may reasonably request and Customer considers reasonably necessary to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and
(d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
5. Customer's Acts or Omissions. If Service Provider's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, representatives or employees, Service Provider shall not be deemed in breach of its obligations under this 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. In the event of the occurrence of any Customer caused delay to the Services, Service Provider shall be entitled to an adjustment to any performance schedule agreed to between the parties in accordance with the SoW as well an equitable adjustment to Service Provider’s fees for the Services.
6. Change Orders.
(a) If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. Service Provider shall, within a reasonable time after such request, provide a written estimate to Customer of:
(i) the likely time required to implement the change;
(ii) any necessary variations to the fees and other charges for the
Services arising from the change;
(iii) the likely effect of the change on the Services; and
(iv) any other impact the change might have on the performance of this
(b) Promptly after receipt of the written estimate, the parties shall negotiate and, to the extent agreement is reached as to the terms governing such change, memorialize in writing the terms of any such agreement as to such change (a "Change Order"). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 26.
(c) Notwithstanding Section 6(a) and Section 6(b), Service Provider may, from time to time change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any guaranteed performance dates set forth in the SoW.
(d) Service Provider may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the SoW.
7. Fees and Expenses; Payment Terms; Interest on Late Payments.
(a) In consideration of the provision of the Services by Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the SoW.
(b) Customer agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services.
(c) Customer shall pay all invoiced amounts due to Service Provider on receipt of Service Provider's invoice or as otherwise indicated on the SoW. Customer shall make all payments hereunder in US dollars by wire transfer, cash, credit card or check or such other method as agreed to between the Parties. Customer hereby
acknowledges and agrees that payments made by credit card shall be subject to an additional 3% process fee.
(d) In the event payments are not received by Service Provider within fifteen (15) days after becoming due, Service Provider may:
(i) charge interest on any such unpaid amounts at a rate of (3%) per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and
(ii) suspend performance for all Services until payment has been made in full.
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. Representation and Warranty.
(a) Service Provider represents and warrants to Customer that it shall perform the Services in accordance with the SoW, using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with any specifications applicable to the Services (as reflected in the SoW), generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
(b) The Service Provider shall not be liable for a breach of the warranty set forth in Section 9(a) unless Customer gives written notice of the defective Services, reasonably described, to Service Provider within two (2) days following the completion and delivery thereof by Service Provider. To the extent that Customer does not deliver notice within such two (2) day period, Customer shall be deemed to have accepted the Services and acknowledged the compliance of such Services with the terms of the SoW and the warranty set forth in this Section 9.
(c) Subject to Section 9(b), Service Provider shall, in its sole discretion, either:
(i) re-perform such Services (or the defective portion thereof); or
(ii) credit or refund the price of such Services at the pro rata contract
(d) THE REMEDIES SET FORTH IN SECTION 9(C) SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND SERVICE
PROVIDER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9(A).
10. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 9(A) ABOVE, SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (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.
11. Limitation of Liability.
(a) IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR 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 DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SERVICE PROVIDER'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 SERVICE PROVIDER PURSUANT TO THIS AGREEMENT.
(c) The limitation of liability set forth in Section 11(b) above shall not apply to (i) liability resulting from Service Provider's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Service Provider's negligent acts or omissions.
12. Termination. In addition to any remedies that may be provided under this Agreement, Service Provider may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:
(a) fails to pay any amount when due under this Agreement and such failure continues for fifteen (15) calendar days after Customer's receipt of written notice of nonpayment;
(b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part and fails to cure any such non-performance (other than failure to pay, which shall be subject to Section 12(a)) within thirty (30) days following the issuance of notice thereof by Service Provider to Customer; or
(c) 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.
13. Waiver. No waiver by Service Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any rights, 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.
14. Force Majeure. The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of one hundred and eighty (180) calendar days, Customer shall be entitled to give notice in writing to Service Provider to terminate this Agreement; provided, further that the Parties agree that epidemics, pandemics or local outbreaks of viral, bacterial, fungal or other pathogenic infections shall not constitute a force majeure event pursuant to this Section 14, and neither party shall be entitled to any modification of its obligations pursuant to this Agreement or other relief from the other party as a result of the occurrence of any such event or circumstance.
15. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
16. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement 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.
17. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto 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 whatsoever under or by reason of this Agreement.
18. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida.
19. Submission to Jurisdiction. Any dispute, controversy, or claim arising out of or related to this Agreement or any breach or termination of this Agreement, including but not limited to the Services, and any alleged violation of any federal, state, or local statute, regulation, common law, or public policy, whether sounding in contract, tort, or statute, shall be submitted to and finally resolved by binding arbitration. Arbitration shall be administered by the American Arbitration Association (“AAA”) and seated in Miami, Florida, before a single arbitrator, in accordance with the AAA’s commercial arbitration rules in effect as of the date such dispute arises. Any arbitral award determination shall be final and binding upon the Parties. Judgment on the arbitrator’s award may be entered in any court of competent jurisdiction. The arbitrator, not any court, shall have exclusive authority to resolve any dispute relating to the enforceability or formation of this Agreement and the arbitrability of any dispute between the Parties.
20. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the e-mail addresses set forth in the SoW or to such other e-mail address that may be designated by the receiving party in writing. Any Notice required or permitted under this Agreement, shall be deemed to be properly given by the sender and received by the addressee on the date of transmission.
21. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
22. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Governing Law, Submission to Jurisdiction, and Survival.
23. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
24. Electronic Contracting. CUSTOMER ACKNOWLEDGES THAT CUSTOMER’S ELECTRONIC ASSENT TO BE GOVERNED BY AND SUBMISSION OF THE SOW, CONSTITUTES CUSTOMER’S AGREEMENT AND INTENT TO BE BOUND BY THESE TERMS AND THE SOW AND TO PAY THE FEES SET FORTH IN THE SOW AS CONSIDERTION FOR THE PERFORMANCE OF THE SERVICES BY THE SERVICE PROVIDER.