Terms of Service
- These terms of service
agreement ("Terms") are incorporated by reference into a
Short-Form Agreement (as defined below) by and between Edit TX, LLC
("Vendor") and the other party or parties thereto (collectively,
"Customer").
- WHEREAS, Customer desires to
engage Vendor to provide professional laundry and other services
("Services") at Customer's location ("Location")
specifically listed on that certain Linen Rental Agreement by and between
Vendor and Customer (the "Short-Form Agreement" and together
with the Terms, the "Agreement"); and
- WHEREAS, Vendor desires to
provide, and Customer desires to receive, said Services pursuant to the
Agreement.
- NOW, THEREFORE, in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the parties hereto agree as follows:
Article 1: Appointment
Vendor will provide Service in accordance with
all terms and conditions hereinafter set forth.
Article 2: Terms of Agreement
2.1Agreement; Initial Term
These terms shall apply to the Short-Form
Agreement (subject to Section 6.11) effective upon the execution of the
Short-Form Agreement. The "Initial Term" of the Short-Form Agreement
is set forth in the Short-Form Agreement, commencing one month following the
date of the Short-Form Agreement's execution.
2.2Automatic Renewal
Unless otherwise set forth in the Short-Form
Agreement, the Short-Form Agreement shall automatically be renewed for a
"Successive Term" equal to the Initial Term as provided in the
Short-Form Agreement unless Customer provides written notice via e-mail at
least 60 days prior to the conclusion of any Initial Term or Successive Term
("Term").
2.3Early Termination
Subject to the terms of this Agreement, Vendor
or Customer may at any time terminate the Short-Form Agreement at its
discretion by providing written notice at least 90 days prior written notice
(each such case, an "Early Termination"). In the event Customer
terminates the Short-Form Agreement before the conclusion of any Term, Customer
shall be required to (1) provide full payment of all outstanding amounts owed
to Vendor pursuant to the Agreement, (2) purchase from Vendor any and all
remaining Purchased Inventory (as defined below) held by Vendor for an
aggregate price equal to the aggregate cost Vendor incurred for acquiring such
Purchased Inventory (as defined below), and (3) fully perform all other parts
of the Short-Form Agreement that may be triggered by Early Termination.
2.4Termination for Cause
Vendor
agrees to provide Service that meets generally accepted standards of quality in
the textile rental industry. Customer expressly waives the right to terminate
the Agreement for deficiencies in service or quality unless (1) Customer
specifically details all complaints in writing via e-mail addressed to Vendor,
(2) Vendor is afforded at least 30 days to correct any deficiencies (the
"Remedy Period"), (3) Vendor does not adequately correct those
specific deficiencies within the Remedy Period, and (4) Customer notifies
company within an additional 30 days (the "Acceptance Period") from
the Remedy Period that they have deemed the corrections unacceptable. Customer
agrees that acceptance of corrections may not be unreasonably withheld. In the
event Customer does not provide written notice within the Acceptance Period, it
shall be conclusively presumed that Customer accepts the corrections as
satisfactory and all parts of the Agreement shall remain in force.
In the event Customer notifies Vendor within
the Acceptance Period that they are still dissatisfied with the Services,
Customer may terminate the Agreement after (1) providing full payment of all
outstanding amounts owed to Vendor pursuant to the Agreement, (2) fulfilling
provisions in the Agreement that require the purchase of "Purchased
Inventory" (as defined below), and (3) fulfilling any other provisions of
the Agreement triggered by this Section 2.4.
2.5Inventory
In the event the Agreement is terminated due
to expiration of Term by Customer or because of Early Termination, all
inventory items shall remain the property of Vendor with no payment due by
Vendor to Customer and Customer agrees to promptly return or make available to
Vendor all inventory in its possession. If Customer fails to return the
inventory within 15 days of termination of this Agreement, Customer agrees to
purchase such inventory upon receipt of an invoice from Vendor. Customer and
Vendor also agree that all items specifically dedicated to Customer at
Customer's request or pursuant to the Short-Form Agreement shall be deemed
"Purchased Inventory".
2.6Exclusivity and Confidentiality
Customer agrees to exclusively use Vendor for
all Services outlined in these Terms and the Short-Form Agreement. Customer
also agrees to protect all pricing and trade secrets of Vendor. Customer agrees
to not share Vendor pricing or servicing information with any company that is a
competitor of Vendor or with any company that desires to compete with Vendor.
Article 3: Terms of Service
3.1Services
Vendor shall provide the Services pertaining
to all items (and related items) for which the Customer shall pay the fees set
forth in the Short-Form Agreement.
3.2Pricing
All pricing and pricing increases are subject
to the Short-Form Agreement. Service Fees and Damage & Replacement Fees are
also subject to the Short-Form Agreement, and shall be applied as respective
percentages above the sub-totaled value determined by the quantity and price of
items serviced.
3.3Regular Service Schedule
The nature and frequency of service is subject
to the Short-Form Agreement. Customer agrees to pay Vendor an Emergency
Delivery Fee of $50 to cover any unscheduled emergency deliveries that are
required. If any unscheduled emergency delivery is necessary because of any
shortcoming of Vendor, no Emergency Delivery Fee shall be charged.
3.4Customer's Acts or Omissions.
If Vendor's performance of its obligations
under the Agreement is prevented or delayed by any act or omission of Customer
or its agents, subcontractors, consultants, or employees, Vendor 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.
Article 4: Billing and Payment
4.1Billing
Unless otherwise set forth in the Short-Form
Agreement, Customer shall pay all invoiced amounts due to Vendor within 30 days
from the date of Vendor's invoice. Customer shall make all payments hereunder
in US dollars by wire transfer. In the event payments are not received by
Vendor within 30 days after becoming due, Vendor 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.
Article 5: Customer Obligations
5.1Minimum Volumes
Customer agrees to provide enough linen volume
to produce a minimum of $40 per delivery invoice. In the event that Customer
does not meet this minimum, Vendor, at its option, may enforce this minimum
charge. Customer may inform Vendor 24 hours in advance to cancel their
regularly scheduled pickup/delivery in order to avoid the minimum charge.
5.2Pickup Commitment
Customer agrees to have all goods bagged and
ready for pickup at the same designated location every Wednesday. Customer
agrees to relieve Vendor of the obligation to process any work not ready at the
time of the normal pickup.
5.3Building Access
Customer agrees to take every step possible to
ensure the timely access to the dock of the building so as to not unduly delay
the operations of Vendor.
5.4Custody of Vendor Equipment
Customer agrees to be fully responsible for
all equipment owned by Vendor while on Customer's premises. In the event that
vendor equipment becomes lost, damaged, or stolen, Customer agrees to replace
the equipment at its sole expense. Customer also agrees to assist Vendor with
periodic audits of Vendor's onsite equipment.
Article 6: Miscellaneous
6.1Indemnification; Limitation of Liability
(a)
Customer hereby agrees to defend, indemnify and hold harmless the Company from
any third-party claims and damages arising out of or associated with the
Agreement unless solely arising out of Vendor's gross negligence or criminal
misconduct.
(b)
IN NO EVENT SHALL VENDOR BE LIABLE TO CUSTOMER 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
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.
(c) IN NO EVENT SHALL VENDOR'S AGGREGATE
LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SHORT-FORM
AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR
PAYABLE TO VENDOR IN THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO
THE CLAIM.
6.2Warranties
Vendor
makes no warranties, express or implied, of fitness for a particular purpose.
Customer agrees to hold Vendor harmless for any and all claims arising out of
any warranties (express or implied) provided by Customer to any third Party.
Customer uses all items at their own risk.
6.3Independent Contractor
It is understood and agreed that the
relationship of Customer and Vendor is strictly that of an Independent
Contractor and under no circumstances should Vendor be considered an agent,
servant, or employee of Customer.
6.4Confidentiality
All non-public, confidential or proprietary
information of Vendor, including, but not limited to, trade secrets,
technology, information pertaining to business operations and strategies, and
information pertaining to customers, pricing, and marketing, and the Short-Form
Agreement (collectively, "Confidential Information"), disclosed by
Vendor to Customer, whether disclosed orally or disclosed or accessed in
written, electronic or other form or media, and whether or not marked,
designated or otherwise identified as "confidential," in connection
with the provision of the Services and this Agreement is confidential, and
shall not be disclosed or copied by Customer without the prior written consent
of Vendor. Confidential Information does not include information that is: (i)
in the public domain; (ii) known to Customer at the time of disclosure; or
(iii) rightfully obtained by Customer on a non-confidential basis from a third
party. Customer agrees to use the Confidential Information only to make use of
the Services. Vendor shall be entitled to injunctive relief for any violation
of this Section without any requirement to (i) post a bond or other security,
or (ii) prove actual damages or that monetary damages will not afford an
adequate remedy.
6.5Governing Laws
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 Texas without giving effect to any choice or conflict of law
provision or rule (whether of the State of Texas or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than
those of the State of Texas.
6.6Notice
All
notices to Vendor will be in writing and sent by e-mail to the following
address:
TDCCS@TDC-Edittx.com
6.7Successors and Assigns
The provision hereof will be binding upon and
inure to the benefit of the parties and to their respective successors and
assigns. Customer shall not assign any of its rights or delegate any of its
obligations under this Agreement without the prior written consent of Vendor.
Vendor may assign any of its rights or delegate any of its obligations to any
affiliate or subsidiary or to any person acquiring all or substantially all of
Vendor's assets without Customer's consent. 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.
6.8Force Majeure
If, because of weather, acts of God, labor
disputes, vendor displays, terrorism or other unavoidable cause, either party
is unable to perform its obligations hereunder, such non-performance shall not
be considered a breach of this Agreement.
6.9Severability
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.
6.10Dispute Resolution
Any dispute or matter arising in connection
with or relating to this Agreement shall be resolved by binding and final
arbitration before a single AAA arbitrator in Houston, Texas under applicable
state or federal laws providing for the enforcement of agreements to arbitrate
disputes. Any such dispute shall be determined on an individual basis, shall be
considered unique as to its facts, and shall not be consolidated in any
arbitration or other proceeding with any claim or controversy of any other
party. Notwithstanding anything herein, the mandatory arbitration provisions
herein shall not be imposed upon Vendor in the case of a claim by Vendor
against Customer for the collection of unpaid amounts due from Customer arising
under the Agreement.
6.11Short Form Agreement; Entire Agreement;
Amendment
In the occurrence of any conflicts between
these Terms and the provisions of the Short-Form Agreement, the conflicting
terms of the Short-Form Agreement will take precedence over the terms set out
in these Terms. The Short-Form Agreement is deemed to reflect the specific and
mutual intentions of the parties with respect to the particular services or
transactions it governs. All Terms that do not conflict with the terms of the
Short-Form Agreement shall remain in full force and effect and shall contribute
to the governing framework of the relationship between Vendor and Customer.
This Agreement constitutes the entire Agreement between Customer and Vendor
with respect to the subject matter herein and supersedes and cancels any prior
oral or written terms of service, agreement, representation, understanding,
arrangement, communication or expression of intent relating to the subject
matter of this Agreement. Vendor reserves the right to make changes to the
Agreement, related policies and agreements at any time. Customer agrees it
shall be bound by any modifications of which Vendor notifies Customer of such
modification to the Terms (including on an invoice) if Customer continues to
use the Services following receipt of such notice or payment of such invoice.
6.12Trademark/Logo License
During the Term, Customer grants Vendor a
limited, worldwide, royalty-free and fully-paid up, non-exclusive, irrevocable
license to use and display Customer's logos, trade names, and other trademarks
for the purpose of publicly marketing and promoting Vendor and its services,
identifying Customer as a customer of Vendor, and creating and displaying
marketing materials, displays, and exhibits, subject to Customer's trademark
and usage guidelines provided to Vendor. After the expiration of the Term or
termination of the Agreement, the license granted in this Section 6.12 shall
continue to the extent necessary to permit Vendor to (a) continue to use
Customer's name and trademarks and/or images and logos to the extent
incorporated into marketing materials, displays, exhibits, or other
documentation prior to the effective date of termination of this Agreement and
(b) use Customer's name and trademarks to refer to Customer as a former
participating brand of Vendor.