TERMS AND CONDITIONS OF EMILY SHAW CREATES LLC
These terms and conditions (the “Agreement”) are entered into by and between Emily Shaw Creates LLC, a California limited liability company, with an address of 245 11th Ave #302, San Francisco, CA 94118 (“ESC”) and you (“you” or “you” and, together with ESC, the “Parties”, and each a “Party”). By purchasing services from ESC, you affirm that you are of legal age to enter into this Agreement, and you accept and are bound by these terms and conditions. You also affirm that if you place an order on behalf of an organization or company, you have the legal authority to bind any such organization or company to these terms and conditions.
In consideration of the mutual covenants and agreements set forth and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, ESC and you agree as follows:
1. Services. ESC shall provide to you the services (the “Services”) set out in one or more invoices or other forms of statement of work to be issued by ESC and accepted by you (each, an “Invoice”) from time to time, each of which is, by this reference, made a part of and incorporated in its entirety herein.
2. Fees and Expenses
a. Fees. In consideration of the provision of the Services by ESC and the rights granted to you under this Agreement, you shall pay the fees set forth in the applicable Invoice. Payment to ESC of such fees and the reimbursement of expenses pursuant to this Section shall constitute payment in full for the performance of the Services. Unless otherwise provided in the Invoice, said fee will be payable upon your receipt of an invoice from ESC but in no event more than 7 days after completion of the Services performed pursuant to the Invoice.
b. Expenses. You shall reimburse ESC for all reasonable expenses incurred in accordance with the Invoice upon receipt by you of an invoice from ESC accompanied by receipts and reasonable supporting documentation.
c. Taxes. You 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 you hereunder; provided, that, in no event shall you pay or be responsible for any taxes imposed on, or with respect to, ESC’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.
d. Late Payment. All late payments shall bear interest at the lesser of the rate of 2% per month or the highest rate permissible under California law, calculated daily and compounded monthly. You shall also reimburse ESC for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. ESC reserves the right to halt performance of Services and withhold deliverables in the event of any late payment by you; this shall in no way constitute a breach of this Agreement by ESC.
3. Changes to the Project. Any changes to the scope of the Services will be in writing, signed by both Parties. If additional Services are required due to your delay, inaccurate information or mistake, ESC will have the right to modify the applicable Invoice to reflect any changes in costs or scheduling that result.
4. Approval of Deliverables. When ESC submits any deliverable set forth in the Invoice, you will approve or reject that deliverable in writing. If you do not provide such an approval or rejection within five business days of receiving a deliverable, that deliverable will be deemed accepted. If you reject the deliverable, you will provide feedback and give ESC a reasonable amount of time to make any necessary changes to the deliverable so that the deliverable conforms to the relevant specification set forth in the Invoice.
5. Your Responsibilities. You acknowledge that they are responsible for performing the following in a reasonable and timely manner. ESC is not responsible for any delays in performing the Services due to your failure to meet its obligations under this Section 5. You agree you shall be responsible for:
a. Providing approvals as requested by ESC.
b. Coordinating any decision-making with third parties engaged by you and/or in connection to the Services;
c. Providing information or materials (“Your Materials”) as requested by ESC in forms as stated by ESC and, if requested by ESC, suitable for reproduction or incorporation into the deliverables;
d. Cooperating with ESC and not taking any actions that would inhibit or impair ESC’s ability to render the Services.
6. Limited Warranty
a. ESC warrants that it shall perform the Services:
i. In accordance with the terms and subject to the conditions set forth in the respective Invoice and this Agreement.
ii. Using personnel of industry standard skill, experience, and qualifications.
iii. In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
b. ESC’s sole and exclusive liability and your sole and exclusive remedy for breach of this warranty shall be as follows:
i. ESC shall use reasonable commercial efforts to promptly cure any such breach; provided, that if ESC cannot cure such breach within a reasonable time (but no more than 30 days) after your written notice of such breach, you may, at its option, terminate the Agreement by serving written notice of termination in accordance with this Agreement.
ii. In the event the Agreement is terminated pursuant to the foregoing Section, ESC shall, within 30 days after the effective date of termination, refund to you any fees paid by you as of the date of termination for the Service or deliverables, less a deduction equal to the fees for receipt or use of such deliverables or Service up to and including the date of termination on a pro-rated basis.
iii. The foregoing remedy shall not be available unless you provide written notice of such breach within 10 days after delivery of such Service or deliverable to you.
c. ESC MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
7. Your Representations and Warranties. You represent and warrant that: (a) you have the full right, power and authority to enter into this Agreement and to perform your obligations hereunder; and, (b) all information and materials provided to ESC by you will be accurate and complete, will comply with all applicable laws, statutes, and regulations, and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third party.
8. Indemnification. You agree to defend and indemnify ESC against any claims resulting from (a) your breach of any representation, warranty, or obligation hereunder, (b) your willful misconduct or gross negligence, and, (c) any third-party claims related to any Services provided under this Agreement.
9. Intellectual Property.
a. 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 you under this Agreement or prepared by or on behalf of ESC in the course of performing the Services, including any items identified as such in the Invoice (collectively, the “Deliverables”), except for any of your Confidential Information or Your Materials, shall be owned by ESC. Upon final payment of all amounts due to ESC under this Agreement, ESC hereby grants you a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable you to make reasonable use of the Deliverables and the Services.
b. All of Your Materials shall remain your sole and exclusive property, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. You hereby grants to ESC a limited, non-exclusive, non-transferable, non-sub-licensable, and non-assignable royalty free license to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, distribute, perform, display, and otherwise use Your Materials as necessary to render the Services to you under this Agreement during the Term.
10. Confidentiality
a. 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: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (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 commercially 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 Representatives 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.
b. 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.
11. Term, Termination and Survival
a. Term. This Agreement shall commence as of the date of the applicable Invoice (“Effective Date”) and shall continue until the completion of the Services under that Invoice, unless sooner terminated pursuant to this Agreement.
b. Termination Without Cause. Either Party may terminate this Agreement without cause upon 10 days’ written notice to the other Party. In the event of termination under this clause, you shall pay ESC on a pro-rata basis any Fees then due and payable for any Services completed, up to and including the date of such termination.
c. Termination for Breach. Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party:
i. Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 10 days after receipt of written notice of such breach.
ii. Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 days after filing.
iii. Is dissolved or liquidated or takes any corporate action for such purpose.
d. Termination for Non-Payment. Notwithstanding anything to the contrary, ESC may terminate this Agreement before the expiration date of the Term on written notice if you fail to pay any amount when due hereunder: (a) and such failure continues for 7 days after your receipt of written notice of nonpayment; or (b) more than 2 times in any 12-month period;
e. Survival. The rights and obligations of the parties set forth in this Section, 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.
12. Limitation of Liability
a. IN NO EVENT SHALL ESC BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT YOU HAVE 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 ESC’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 ESC PURSUANT TO THE INVOICE GIVING RISE TO THE CLAIM.
13. Entire Agreement. This Agreement, including and together with any related Invoices 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.
14. Notices. Notices shall be in writing. Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier, email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, 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. Notices to ESC shall be sent to the address set forth in the first paragraph of this Agreement or to info@emilyshawcreates.com. Notices to you shall be sent to the address set forth for you on the applicable Invoice.
15. 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.
16. Amendments. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by each Party.
17. Waiver. No waiver by any Party of any of the provisions of this Agreement 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 this Agreement 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. You shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of ESC.
19. 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.
20. Choice of Law. This Agreement and all related documents are governed by, and construed in accordance with, the laws of the State of California, United States of America, 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 California.
21. 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 in any forum other than a court of competent jurisdiction in San Francisco County, California. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in such court.
22. Counterparts. This Agreement 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.
23. Force Majeure. ESC shall not be liable or responsible to you, 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 ESC 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, epidemic, 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 15 days, you shall be entitled to give notice in writing to ESC to terminate this Agreement.