TERMS OF SERVICES

TERMS OF SERVICES

OVERVIEW

This website is operated by TOTALLY GLAMS. Throughout the site, the terms “we”, “us” and “our” refer to Totally Glams. Totally Glams offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.

By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.

Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.

Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.

Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.

SECTION 1 - ONLINE STORE TERMS

By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.
You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms will result in an immediate termination of your Services.

SECTION 2 - GENERAL CONDITIONS

We reserve the right to refuse service to anyone for any reason at any time.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.

SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION

We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.

SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES

Prices for our products are subject to change without notice.
We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time.
We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.

SECTION 5 - PRODUCTS OR SERVICES (if applicable)

Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.
We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.

SECTION 6 - ACCURACY OF BILLING AND ACCOUNT INFORMATION

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e‑mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

For more detail, please review our Returns Policy.

SECTION 7 - OPTIONAL TOOLS

We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.

SECTION 8 - THIRD-PARTY LINKS

Certain content, products and services available via our Service may include materials from third-parties.
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

SECTION 9 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS

If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e‑mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.

SECTION 10 - PERSONAL INFORMATION

Your submission of personal information through the store is governed by our Privacy Policy. To view our Privacy Policy.

SECTION 11 - ERRORS, INACCURACIES AND OMISSIONS

Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.

SECTION 12 - PROHIBITED USES

In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

SECTION 13 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure or error-free.
We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable.
You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time, without notice to you.
You expressly agree that your use of, or inability to use, the service is at your sole risk. The service and all products and services delivered to you through the service are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
In no case shall Totally Glams, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.

SECTION 14 - INDEMNIFICATION

You agree to indemnify, defend and hold harmless Totally Glams and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

SECTION 15 - SEVERABILITY

In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.

SECTION 16 - TERMINATION

The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).

SECTION 17 - ENTIRE AGREEMENT

The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.

SECTION 18 - GOVERNING LAW

These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of United States.

SECTION 19 - CHANGES TO TERMS OF SERVICE

You can review the most current version of the Terms of Service at any time at this page.
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.

SECTION 20 - CONTACT INFORMATION

Questions about the Terms of Service should be sent to us at info@designsandinspirations.com

SECTION 21- INTERIOR STYLING SERVICES

Due to the nature of our business. Design boards are custom made to a client's specific needs and cannot be transferred. Fees cover the time it takes to design the board, find items that will suit the space while keeping budget in mind.

One-click shop- When it comes to this service items on the board can be purchase via "one click shop" on www.designsandinspirations.com.  This service is provided as a convenience to all design clients. Most of the items are supplied by a 3rd party or online furniture store and will be subject to their terms for returns, exhanges,  shipping rates, delivery time frames. All fees are calculated with rates included as well as import fees for international clients. Boards are purchased as a unit with all fees included in the price as different sites offer varying prices for shipping and handling import fees and others. You may request a detailed list of the prices please allow 7 days for delivery.

PLEASE REVIEW RETURN POLICY FOR DETAILS ON RETURNS AND EXCHANGES

 SECTION 22. INTERIOR DESIGN SERVICES 

MJM Interior Design Terms and Services Agreement

This Services Agreement (this “Agreement”) is between MJM Interior Group a subsidiary of Totally Glams (“Company”) and their clients.

SERVICES.

    (a)  The Company shall provide to Client the services (the “Services”) set out in one or more statements of work to be issued by Client and accepted by the Company (each, a “Statement of Work”). The initial accepted Statement of Work as outlined in the Proposal. Additional Statements of Work, in the same form as the Statement of Work may be submitted later if requested, and shall be deemed accepted and incorporated into this Agreement only if signed by both parties. The Company shall provide the Services (i) in accordance with the terms and subject to the conditions set forth in the respective Statement of Work and this Agreement; (ii) using personnel of required skill, experience, and qualifications; (iii) in a timely, workmanlike, and professional manner; and (iv) in accordance with generally recognized industry standards in the Company’s field; and (v) to the reasonable satisfaction of the Client.

    (b)  For the sake of clarity, nothing in this Agreement shall be construed to prevent the Client from itself performing or from acquiring services from other providers that are similar to or identical to the Services.

  1. COMPANY OBLIGATIONS.The Company shall:    

    (a)  Communicate with the Client about progress the Company has made in performing the Services.

    (b)  Supply all tools, equipment, and supplies required to perform the Services, except if the Company’s work must be performed on or with the Client’s equipment.

    (c)  Ensure that all materials and equipment furnished to the Company’s personnel is of good and merchantable quality, unless otherwise agreed to by the Client.

    (d)  Comply with all applicable laws and regulations in providing the Services. The Company shall obtain all permits or permissions required to comply with such laws and regulations.

    (e)  Comply with all Client rules, regulations, and policies of which it has been made aware, in its provision of the Services.

  (f) The Company shall be entitled to retain employees and/or subcontractors to assist the Company in performance of the Services. The creation of any employee and/or subcontractor’s relationship shall not relieve the Company of any of its obligations under this Agreement. The Company shall be fully liable to the Client for the acts and/or omissions of any employee and/or sub-subcontractors hired by the Company, as if Company had itself acted or failed to act. COMPANY SHALL FULLY RELEASE, DEFEND, INDEMNIFY AND HOLD CLIENT HARMLESS FOR, FROM AND AGAINST ANY AND ALL CLAIMS ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OF THE SERVICES OR ANY OTHER ACTIVITIES OF COMPANY’S EMPLOYEES AND/OR SUB-COMPANIES.

>CLIENT OBLIGATIONS.

 

Client shall make timely payments of amounts earned by the Company under this Agreement and notify the Company of any changes to its procedures affecting the Company’s obligations under this Agreement at least thirty (15) days prior to implementing such changes.

  1. COMPENSATION AND EXPENSES.

The Client shall pay the Company in accordance with the terms set forth in

 Exhibit A

, which shall be the Company’s sole compensation for the Services.

No Payments in Certain Circumstances

. No payment will be payable to the Company under any of the following circumstances:

  • if prohibited under applicable government law, regulation, or policy;
  • if the Client commences proceedings for bankruptcy, reorganization, liquidation or receivership proceedings, makes an assignment on behalf of all or substantially all of its creditors, or becomes or is declared insolvent;
  • if the Services performed occurred after the expiration or termination of the Agreement, unless otherwise agreed in writing.

Expenses. 

Any ordinary and necessary expenses incurred by the Company or the Company’s staff or subcontractors under this Agreement will be the Company’s sole responsibility.

Taxes

. The Company is solely responsible for the payment of all income, social security, employment-related, or other taxes incurred as a result of the performance of the Services by the Company, and for all obligations, reports, and timely notifications relating to those taxes.

Other Benefits. 

The Company has no claim against the Client under this Agreement or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.  

  1. INTELLECTUAL PROPERTY AND USE OF TRADEMARKS.

All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patent-able 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 under this Agreement or prepared by or on behalf of the Company in the course of performing the Services, including any items identified as such in the Statement of Work (collectively, the “

Deliverables

”) except for any Confidential Information of Client or Client materials shall be owned by the Company. The Company hereby grants the Client a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, non-transferable, non sub-license-able, 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.

 

The Company may use, reproduce, and distribute the Client’s service marks, trademarks, and trade names (if any) (collectively, the “

Client Marks

”) in connection with the performance of the Services. Any goodwill received from this use will accrue to the Client, which will remain the sole owner of the Client Marks. The Company may not engage in activities or commit acts, directly or indirectly, that may contest, dispute, or otherwise impair the Client’s interest in the Client Marks. The Company may not cause diminished of value of the Client Marks through any act or representation. The Company may not apply for, acquire, or claim any interest in any Client Marks, or others that may be confusingly similar to any of them, through advertising or otherwise. At the expiration or earlier termination of this Agreement, the Company will have no further right to use the Client Marks, unless the Client provides written approval for each such use.

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, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed (“

Confidential Information

”); provided, however, that Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this section; (ii) 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; (iii) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (iv) was or is independently developed by Receiving Party without using any Confidential Information.

The Receiving Party shall: (i) 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 commercially reasonable degree of care; (ii) 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 (iii) 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. “Receiving Party’s Group” means the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent Contractors, Contractors, sub-licensees, subcontractors, attorneys, accountants, and financial advisors.

NON-COMPETE.

 

The Company is free to engage in other independent contracting activities, except that (i) during the Term, the Company may not accept work, enter into contracts, or accept obligations inconsistent or incompatible with the Company’s obligations or the scope of Services to be rendered for the Client under this Agreement.

  1. TERM, TERMINATION, AND SURVIVAL.

This Agreement will become effective as of the date this Agreement is signed by the last party to sign it (as indicated by the date associated with that party’s signature). Unless it is terminated earlier in accordance with subsection 8(b), this Agreement will continue until the Services have been satisfactorily completed and the Company has been paid in full for such Services (the “Term”).

  • This Agreement may be terminated:
  • by either party for a material breach of any provision of this Agreement by the other party, if the other party, if the other party’s material breach is not cured within ten (3) days of receipt of written notice of the breach;
  • automatically, on the death or dissolution of the Company.

Within 3 days of the expiration or earlier termination of this Agreement, the Company shall return to the Client, retaining no copies or notes, all Client property, and documents relating to the Client’s business including reports, abstracts, lists, correspondence, information, computer files, computer disks, and other materials and copies of those materials obtained by the Company during and in connection with the Company’s work with the Client. All files, records, documents, blueprints, specifications, information, letters, notes, media lists, original artwork or creative work, notebooks, and similar items relating to the Client’s business, whether prepared by the Company or by others, remain the Client’s exclusive property.

The rights and obligations of the parties set forth in Sections 5, 6, 7, 10, 11, 13, 15, 22 and 23, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement, and with respect to Confidential Information that constitutes a trade secret under applicable law, the rights and obligations set forth in

 Section 6 

hereof will survive such termination or expiration of this Agreement until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of the Company or its affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent Contractors, Contractors, sub-licensees, sub-contractors, attorneys, accountants, and financial advisors.‌

  1. INDEPENDENT COMPANY.

The relationship of the parties under this Agreement is one of independent Contractor, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by this Agreement. Neither party may assume or create obligations on the other party’s behalf, and neither party may take any action that creates the appearance of such authority.

The Company has the sole right to control and direct the means, details, manner, and method by which the Services will be performed, and the right to perform the Services at any time, place, or location. The Company or the Company’s staff or subcontractors shall perform the Services, and the Client is not required to hire, supervise, or pay any assistants to help the Company perform those Services. The Company must provide commercial liability and worker’s compensation insurance coverage for itself and the Company’s staff or subcontractors, with coverage amounts in line with industry standards. The Company understands the Client does not have worker’s compensation coverage and waives any right it may have to worker’s compensation benefits from the Client.

INDEMNIFICATION AND LIMITATION OF LIABILITY.

At all times after the effective date of this Agreement, the Client shall defend, indemnify, and hold harmless the Company and its officers, members, managers, employees, agents, Company’s, sublicensees, affiliates, subsidiaries, successors, and assigns (collectively, the “Company Indemnitees”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, except as might be incurred as a result of negligence of the Company, including reasonable attorney fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, arising out or resulting from any claim of a third party related to the Services. Client hereby expressly waive and release any and all claims, now known or hereafter known in any jurisdiction throughout the world, against the Company, and its officers, directors, employees, agents, affiliates, members, successors, and assigns (collectively, "

Releasees

"), arising out of or attributable to the Company’s performance of the Services, whether arising out of the negligence of the Company or any Releasees or otherwise. Client covenants not to make or bring any such claim against the Company or any other Releasee, and forever release and discharge the Company and all other Releasees from liability under such claims. This waiver and release include, without limitation, injuries or accidents which may occur as a result of the: (a) the Services, (b) use of any tools, equipment, and supplies required to perform the Services, or (c) instruction or supervision by the Company.

If the Company violates any provision of this Agreement, the Client shall, in addition to any damages to which it is entitled, be entitled to seek immediate injunctive relief against the Company prohibiting further actions inconsistent with the Company’s obligations under this Agreement.

In the event the Company fails to satisfactorily perform any of the Services on a timely basis, the Client shall have the right, without prejudice to any other rights or remedies it may have under this Agreement or any applicable Statement of Work, to take one or more of the following steps:

  • (i) Suspend the Company’s right and obligation to complete its performance of the Services until such time as the Company is able to demonstrate to Client’s reasonable satisfaction that it can satisfactorily meet its obligations under this Agreement;
  • (ii) Itself provide and/or engage a replacement Company to provide any or all of the delayed or unsatisfactory Services;
  • (iii) Assign one or more of its representatives to supervise and work with the Company to correct and mitigate the effects of the Company’s breach;
  • (iv) Withhold payment of any amounts otherwise due to the Company in a sufficient amount to set off against any damages caused to the Client as a consequence of the Company’s breach.

To the extent a party is required to seek enforcement of this Agreement or otherwise defend against an unsuccessful claim of breach, the unsuccessful party shall be liable for all reasonable attorney’s fees and costs incurred by the successful party to enforce the provisions of this Agreement.

Except for a breach of  Section 6, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise. Despite the previous sentence, the parties intend that the Company’s exclusive remedy for Client’s payment breach shall be its right to damages equal to its earned but unpaid fees.

INSURANCE.

The Company shall carry and maintain appropriate insurance coverage, in accordance with industry standards, in the performance of the Services.

GOVERNING LAW.

The laws of the State of Georgia will apply to this Agreement and the conflicts of law principle will not apply. Both parties consent to the personal jurisdiction of the state and federal courts of Bryan County, Georgia.

ASSIGNMENT.

Neither party may assign any of its rights under this Agreement, except with the prior written consent of the other party, which consent shall not be unreasonably withheld.  If a purported assignment is made in violation of this section, it is void.

NOTICE.

Each party giving or making any notice, request, demand, or other communication required or permitted by this Agreement shall gave that notice via electronic transmission or in writing and use one of the following types of delivery, each of which is a writing for purposes of this Agreement: email, personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid) or email. A party shall address notices under this Section to a party at the contact information provided for such party on the signature page.  Notice shall be deemed to be received after one (1) day of electronic transmission, courier or personal delivery, or after five (5) days of mail delivery.

AMENDMENTS.

No change or addition to this Agreement will be effective unless it is in writing and signed by both parties.

SEVERABILITY.

If any term or provision of this Agreement 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 this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement to affect the original intent of the parties as closely as possible.

ENTIRE AGREEMENT.

This Agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties’ agreement about the subject matter of this Agreement. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings.

WAIVER.

No failure or delay to exercise any right or remedy, or failure to insist on strict performance of any obligation hereunder shall operate as a waiver of the same or any other obligation, right or remedy hereunder. No waiver or consent hereunder shall be applicable to any events, acts or circumstances except those specifically covered under this Agreement.

ELECTRONIC SIGNATURES.

Electronic signatures or signatures sent by e-mail or other electronic medium have the same force and effect as an original signature.

SUCCESSORS & ASSIGNS.

All references to the parties include their respective successors and assigns, as applicable, to whom the terms of this Agreement will apply.

FORCE MAJEURE.  A party will be not be considered in breach or in default because of, and will not be liable to the other party for, any delay or failure to perform its obligations under this Agreement by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that party’s reasonable control (each a “Force Majeure Event ”). However, if a Force Majeure Event occurs, the affected party shall, as soon as practicable: (a) notify the other party of the Force Majeure Event and its impact on performance under this Agreement; and (b) use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations under this Agreement.  

ATTORNEY’S FEES.

If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the losing party shall reimburse the prevailing party for its reasonable attorneys’ fees.

DISPUTE RESOLUTION.

Before taking any legal action, the parties will attempt in good faith to resolve any dispute arising out of this Agreement through negotiations for at least thirty (30) days from the date a party has provided notice to the other party of the dispute.