SERVICE AGREEMENT
By signing this Service Agreement, you (hereinafter, "Client") agree (effective as of the date of your signature) to the terms outlined on the front of this Service Agreement and to the following terms (together referred to hereinafter as, the "Agreement") for service to be performed or arranged by TJ's Construction Cleanup Specialists, LLC ("hereinafter, "TJ's").
WHEREAS, Client finds that TJ's is willing and qualified to perform certain work hereinafter described in accordance with the provisions of this Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and intending to be legally bound, the parties hereto agree as follows:
1 . SERVICES . TJ's shall only provide those ("Services") specifically identified on the front of this Agreement or on any attachments signed and dated by a duly authorized representative of TJ's.
2 . PAYMENT AND INVOICING TERMS .
2 . 1 Payment for Services . TJ's will be paid for Services in the amounts as specifically identified on the front of this form. Payment may be made via Credit Card or Check at the completion of Services rendered. Client may also choose to be invoiced for Services rendered. Returned checks are subject to a $25 charge.
2 .2 Invoicing . Payment is due on the date indicated on the invoice (which will be 30 days from the date of generation of the invoice). Past due payments are subject to a finance charge of 1.5% per month on the unpaid amount of an invoice, or the maximum amount allowed by law, will be charged on past due accounts. Payments by Client will thereafter be applied first to accrued interest and then to the principal unpaid balance. If payment of invoices is not current, the Company may suspend performing further work.
2.3 Costs to Collect . Any attorney fees, court costs, or other costs incurred in collection of delinquent accounts shall be paid by Client.
3. STANDARD OF CARE .
TJ's warrants that it services shall be performed by personnel possessing competency consistent with applicable industry standards. No other representation, express or implied, and no warranty or guarantee are included or intended in this Agreement, or in any report, opinion, deliverable, work product, document or otherwise. Furthermore, no guarantee is made as to the efficacy or value of any services performed. THIS SECTION SETS FORTH THE ONLY WARRANTIES PROVIDED BY THE COMPANY CONCERNING THE SERVICES AND RELATED WORK PRODUCT. THIS WARRANTY IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, ETC.
4. LIABILITY .
4. 2 Limitation . TJ's liability, including but not limited to Client's claims of contributions and indemnification related to third party claims arising out of services rendered by the Company, and for any losses, injury or damages to persons or properties or work performed arising out of or in connection with this Agreement and for any other claim, shall be limited to the lesser of (i) One Thousand dollars ($1,000.00) or (ii) payment received by TJ's from Client for the particular service provided giving rise to the claim. Notwithstanding anything to the contrary in this Agreement, TJ's shall not be liable for any special, indirect, consequential, lost profits, or punitive damages. Notwithstanding anything to the contrary in this Agreement, TJ's shall not be liable for pre-existing conditions / damages or any extension of pre-existing conditions / damages to Client's property as a result of Services provided by TJ's, unless Client warns TJ's of the existence of such pre-existing conditions. Client agrees to limit the Company's liability to Client and any other third party for any damage on account of any error, omission or negligence to a sum not to exceed the lesser of (i) One Thousand dollars ($1,000.00) or (ii) payment received by TJ's for the particular service provided giving rise to the claim. The limitation of liability set forth herein is for any and all matters for which the Company may otherwise have liability arising out of or in connection with this Agreement, whether the claim arises in contract, tort, statute, or otherwise.
4. 3 Remedy . Client's exclusive remedy for any claim arising out of or relating to this Agreement will be for TJ's, upon receipt of written notice, either (i) to use commercially reasonable efforts to cure, at its expense, the matter that gave rise to the claim for which the Company is at fault, or (ii) return to Client the fees paid by Client to TJ's for the particular service provided that gives rise to the claim, subject to the limitation contained in Section 5.1. Client agrees that it will not allege that this remedy fails its essential purpose.
4. 4 Survival . Articles 2, 4, 5, and 6 survive the expiration or termination of this Agreement for any reason.
5. MISCELLANEOUS .
5.1 Severability . Should any part of this Agreement for any reason be declared invalid, such decision shall not affect the validity of any remaining provisions, which remaining provisions shall remain in full force and effect as if this Agreement had been executed with the invalid portion thereof eliminated, and it is hereby declared the intention of the parties that they would have executed the remaining portion of this Agreement without including any such part, parts, or portions which may, for any reason, be hereafter declared invalid. Any provision shall nevertheless remain in full force and effect in all other circumstances.
5.2 Modification and Waiver . Waiver of breach of this Agreement by either party shall not be considered a waiver of any other subsequent breach.
5.3 Independent Contractor . The Company is an independent contractor of Client.
5.4 Notices . Client shall give TJ's written notice within three hundred sixty-five (365) days of obtaining knowledge of the occurrence of any claim or cause of action which Client believes that it has, or may seek to assert or allege, against TJ's, whether such claim is based in law or equity, arising under or related to this Agreement or to the transactions contemplated hereby, or any act or omission to act by TJ's with respect hereto. If Client fails to give such notice to TJ's with regard to any such claim or cause of action and shall not have brought legal action for such claim or cause of action within said time period, Client shall be deemed to have waived, and shall be forever barred from bringing or asserting such claim or cause of action in any suit, action or proceeding in any court or before any governmental agency or authority or any arbitrator. All notices or other communications hereunder shall be in writing, and shall be deemed given when delivered to the address specified on the front of this document. Any party may, by notice given in accordance with this Section to the other parties, designate another address or person or entity for receipt of notices hereunder.
5.5 Assignment . The Agreement is not assignable or transferable by Client.
5.6 Section Headings . Title and headings of sections of this Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement.
5.7 Representations; Counterparts . Each person executing this Agreement on behalf of a party hereto represents and warrants that such person is duly and validly authorized to do so on behalf of such party, with full right and authority to execute this Agreement and to bind such party with respect to all of its obligations hereunder. This Agreement may be executed (by original or telecopied signature) in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.
5. 1 Cooperation . Client will cooperate with TJ's in taking actions, as appropriate, to achieve the objectives of this Agreement. Client agrees that TJ's performance is dependent on Client's timely and effective cooperation with TJ's. Accordingly, Client acknowledges that any delay by Client may result in TJ's being released from an obligation or scheduled deadline or in Client having to pay extra fees for TJ's agreement to meet a specific obligation or deadline despite the delay.
5. 2 Governing Law and Construction . This Agreement will be governed by and construed in accordance with the laws of Arizona, without regard to the principles of conflicts of law. The language of this Agreement shall be deemed to be the result of negotiation among the parties and, if applicable, their respective counsel and shall not be construed strictly for or against any party.
5. 3 Arbitration . Any controversy, dispute or claim arising out of or related to this Agreement or breach of this Agreement shall be settled solely by confidential binding arbitration by a single arbitrator in accordance with the applicable rules of National Arbitration Forum (NAF) in effect at the time the arbitration commences. The award of the arbitrator shall be final and binding. No party shall be entitled to, and the arbitrator is not authorized to, award legal fees, expert witness fees, or related costs of a party.
5.11 Entire Agreement; Survival . This Agreement, including any Exhibits, states the entire Agreement between the parties and supersedes all previous contracts, proposals, oral or written, and all other communications between the parties respecting the subject matter hereof, and supersedes any and all prior understandings, representations, warranties, agreements or contracts (whether oral or written) between Client and the Company respecting the subject matter hereof. This Agreement may only be amended by an agreement in writing executed by the parties hereto.
5.12 Force Majeure . TJ's shall not be responsible for delays or failures (including any delay by TJ's to make progress in the prosecution of any Services) if such delay arises out of causes beyond its control. Such causes may include, but are not restricted to, acts of nature or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, electrical outages, computer or communications failures, and severe weather, and acts or omissions of subcontractors or third parties.