This Maintenance Services Subscription Agreement (“Agreement”) is made as of the date you agree to these terms through ouronline ordering process(“Effective Date”), between Mendly LLC a Colorado limited liability company (“Mendly”), and the individualor entity purchasing the services identified in the Mendly online ordering process (“Client”). By completing the online ordering process and submitting your order, you affirmatively agree to this Agreement.
Subject to the terms of this Agreement, Client hereby engages Mendly, and Mendly hereby agrees, to provide the home maintenance services described in Mendly’s online ordering process and any additional Work Orders (collectively, the “Services”).
All services to be performed pursuant to this Agreement shall be set forth in either the online ordering process or a written, mutually agreed to, work order or quote signed by authorized representatives of both parties (each a “Work Order”), each of which is expressly made subject to the terms and conditions of this Agreement. Work Orders should contain descriptions of the Services to be provided by Mendly, Mendly’s compensation, additional terms and conditions, if any, applicable to a particular engagement and such other details as the parties deem appropriate. A Work Order may provide atime schedule for completion of the Services required there under (the "Schedule"). Client and Mendly expressly acknowledge and agree that any Schedules shall not be considered firm or fixed performance dates, are only to be regarded as estimated beginning and completion dates for the tasks and activities to be performed hereunder and are expected to be revised duringthe term of any engagement. Mendly agrees to use diligent efforts to meet such dates.
Each party may request changes that affect the scope or duration of the Services relating to any WorkOrder. Mendly shall continue to perform pursuant to the existing Work Order, and neither party shall be bound by any changere quested by the other party, until such change has been memorialized in writing and signed (or otherwise agreed to in writing, including e-mail) by authorized representatives of each party (“Change Order”). Each Change Order will be subject to the terms and conditions of this Agreement.
Client will permit Mendly to have reasonable access to Client’s home and premises and other information for the purposes of performing the Services. Client shall provide Mendly with information, cooperation, and assistance as Mendly may reasonably request in connection with the performance of the Services. Mendly shall have no liability for deficiencies in the Services, or failure to meet any Schedule, resulting from the acts or omissions of Client, its agents or employees or performance of the Services in accordance with Client’s instructions.
Client acknowledges and agrees that Mendly may, in performing its obligations pursuant to this Agreement, be dependent upon or use data, material, specifications, content and other information furnished by Client (“ClientMaterials”) without any independent investigation or verification thereof, and that Mendly shall be entitled to rely upon the accuracy and completeness of such information in performing the Services. Mendly, in performing the Services, will be making recommendations and providing advice to the Client, but all decisions as to implementing such advice and recommendations shall be made by and shall be the sole responsibility of the Client and Mendly shall be entitled to rely on all such decisions of Client.
If Client sells the residence that is subject to the Services, Mendly shall offer to provide the remaining Services to the new owner for the remainder of the then-current term.
In consideration for performing the Services, Client will pay Mendly all fees identified in the online ordering process and under the Work Orders (the “Fees”). If a third-party (e.g., real estate agent) purchases the Services for Client, then payment will be the responsibility of that third-party. Fees are non-refundable.
Client will reimburse Mendly for the reasonable travel, lodging and related out-of-pocket expenses that Mendly may incur in performing the Services identified in a Work Order or otherwise approved by Client (“Reimbursable Expenses”). Mendly will use its best efforts to estimate expenses associated with expenditures requested by Client. Requests and estimates will be confirmed in writing by Mendly to Client. Mendly will furnish Client with appropriate receipts for Reimbursable Expenses.
Client will pay the Fees and Reimbursable Expenses to Mendly according to the terms set forth in the online ordering process and any applicable Work Orders, provided that if the Work Order is silent about payment terms, Client will pay all Fees and Reimbursable Expenses upon receipt of Mendly’s invoice. Client will pay some Fees in advance. All payments will be madein U.S. dollars by check or wire transfer to Mendly’s designated bank account. Any payment that is over thirty (30) days late will accrue interest at the rate of 12% per annum, compounded monthly, until paid in full. Not withstanding any other provision of this Agreement, Mendly may, at its sole election, suspend its provision of Services without liability to Client until such time as Client has made all payments then due.
Fees are exclusive of applicable taxes. Client shall be responsible for payment of all applicable sales, use, excise and other taxes and assessments relating to this Agreement, excluding any taxes based on the net income of Mendly. Client will pay such taxes or provide Mendly with any applicable certificate of exemption acceptable to the appropriate taxing authorities.
The term of this Agreement will begin on the Effective Date and will continue for one year (the “Initial Term”), after which it shall automatically continue to renew for successive one-year periods (each, a “Renewal Term”) unless either party provides written notice to the other party of its intent to non-renew not less than 30 days prior to the end of the then current Renewal Term. The Initial Term and Renewal Term are collectively referred to as the “Term”. The Term may be sooner terminated as set forth herein. In addition, each individual Work Order will have its own term, and any termination or expirationof any such Work Order will not affect the term of any other Work Order, or this Agreement.
Either party may terminate this Agreement or an Work Order immediately upon written noticeto the other party, without judicial or arbitral action and without prejudice to any other remedies it may have, if (i) the other party materially breaches any of its obligations under the Agreement or an Work Order (as the case may be) and fails to remedy such material breach to the notifying party’s satisfaction within fifteen (15) days after it demands such cure, or (ii) the other party assigns all or a substantial part of its business or assets for the benefit of creditors, permits the appointment of a receiver for its business or assets, becomes subject to any legal proceeding relating to insolvency, bankruptcy, reorganization, or the protection of creditors’ rights or otherwise ceases to conduct business in the normal course.
Client will have a one-time opportunity to terminate the Agreement for convenience if Clientis not satisfied with Mendly’s initial baseline inspection. To exercise this termination right, Client must notify Mendly in writing that it is terminating the Agreement within 24 hours of Client’s receipt of Mendly’s initial baseline inspection report.
Upon the expiration or termination of this Agreement for any reason, Client will promptly pay Mendly the Fees and Reimbursable Expenses that may be due and outstanding for the Services that Mendly has performed as of the effective date of termination. In addition, if Client terminates this Agreement in accordance with Section 4(c), then Client shall also pay all reasonable expenses incurred by Mendly in winding-up its work under this Agreement and any other expenses that were incurred by Mendly in the expectation of complete performance of this Agreement. Promptly after receipt of such payments, Mendly will deliver to Client all collateral materials, lists, documentation and other items that contain, in whole or in part, the Confidential Information that Client disclosed to Mendly.
Upon expiration or termination of this Agreement, any outstanding Work Order shall continue in full force and effect in accordance with its terms, subject to the terms of this Agreement. The provisions of Sections 3, 5, 7, 8, 9, and 10 will survive the expiration of this Agreement or its termination for any reason.
a. Mendly represents and warrants that Mendly will perform the Services in a good and workmanlike manner. As Mendly’s sole obligation and Client’s sole and exclusive remedy for breach of this warranty, Mendly will re-perform any defective services at no additional cost to Client.
b. THE WARRANTIES SET FORTH IN SECTION 6(A) ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY VALLUM TOCLIENT UNDER THIS AGREEMENT OR ANY STATEMENT OF WORK. ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT), ARE HEREBY DISCLAIMED.
“Confidential Information” means without limitation, (i) any idea, proposal, plan, information, procedure, technology or method of operation, any written or oral information of a proprietary nature, and any intellectual property owned or licensed by the disclosing party or relating to the disclosing party's or any of its principals' or affiliates' business, projects, operations, finances, activities or affairs, whether of a technical nature or not (including trade secrets, knowhow, processes, and other technical or business information), and any proposed change thereto; and (ii) any other information disclosed by the disclosing party and designated by the disclosing party as confidential. Notwithstanding the foregoing, Confidential Information does not include work product or information developed during performance of this Agreement or information which: (i) is already known to the recipient at the time of disclosure; (ii) is or becomes publicly known through no wrongful act or failure of recipient; (iii) is independently developed by recipient without benefit of the other party’s Confidential Information; or (iv) is received from a third party which is not under and does not thereby breach an obligation of confidentiality. The recipient agrees to protect the disclosing party’s Confidential Information at all times and in the same manner as it protects the confidentiality of its own proprietary and confidential materials, but in no event with less than a reasonable standard of care. The recipient will deliver to the disclosing party all Confidential Information and all copies thereof when disclosing party requests the same or immediately upon termination of this Agreement, whichever occurs earlier, except for one copy thereof that recipient may retain for its records. The recipient shall not, except with respect to those of its employees with a need to know under this Agreement, use or disclose to any person, firm or entity any Confidential Informationof the disclosing party without the disclosing party’s express, prior written permission; provided, however, that notwithstanding the foregoing, recipient may disclose Confidential Information to the extent that it is required to be disclosed pursuant to a statutory or regulatory provision or court order. Notwithstanding anything to the contrary in the Agreement, Mendly may share any information of Client that Client pre-approves for disclosure as is reasonably necessary for Mendly toperform Services. Except as to the confidentiality of trade secrets that are integral to products or services for which identifiable trademarks or service marks exist as of the Effective Date, the confidentiality restrictions and obligations imposed by this Section 9 shall terminate 5 years after the expiration of the relevant Work Order or termination of this Agreement, whichever occurs first. Mendly may receive material non-public information of Client in the normal course of providing Services. As aresult, Mendly strictly prohibits all employees, partners or employees of the firm, whether they are directly affiliated with Client’s engagement or not, to trade in the publicly traded equity, debt or derivatives instruments of Mendly clients. Additionally, in the event of an inadvertent release of Client’s material, non-public information, Mendly reserves the right totake reasonable remedial actions, including, without limitation, filing an 8-K with the Securities and Exchange Commission.
a. Each party shall, at its own expense, defend and hold the other party harmless from and against any and all claims and related costs, fees (including reasonable attorneys’ fees), damages, liabilities and expenses arising from property damage, personal injury, or death caused by the negligence, willful misconduct or willful omission of any of that party’s personnel while acting under this Agreement or an applicable Work Order or while on Client’s premises. Client shall, at its own expense, indemnify, defend and hold Mendly harmless from and against any and all third party claims, costs, fees (including reasonable attorneys’ fees), damages, liabilities and expenses to the extent such claim arises out of or relates to pre-existing damage or conditions at Client’s residence or location that is subject to the Services.
b. As a condition to obtaining indemnification from the other party under this Agreement, each party will: (a) give theother party prompt notice of any claim subject to Section 10(a) or 10(b), as applicable; (b) grant to the other party sole control of the defense or settlement of any resulting legal proceedings (provided that such party may participate in any such defense, settlement, or legal proceedings at such party’s expense through counsel of such party’s choice); and (c) provide the other party with reasonable cooperation and, at the other party’s request and expense, assistance in the defense or settlement of any claim subject to indemnification under this Section 10(c).
EXCEPT FOR PAYMENT OBLIGATIONS OR OBLIGATIONS IN SECTION 8, UNDER NO CIRCUMSTANCES WILL EITHER PARTY HAVE ANY LIABILITY RELATED TO THIS AGREEMENT ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, IN TORT, OR OTHERWISE:(A) FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF CLIENT OR ITS CLIENTS, OR (B) FOR AGGREGATE DAMAGES IN EXCESSOF THE TOTAL AMOUNT THAT VALLUM ACTUALLY RECEIVED FROM CLIENT FOR THE SPECIFIC SERVICES OR DELIVERABLES THAT DIRECTLY CAUSED THE DAMAGE IN THE 6 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
Mendly DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR PRE-EXISTING DAMAGE, CONDITIONS, OR ISSUES AT CLIENT’S RESIDENCE.
Client and Mendly are independent parties. Nothing in this Agreement will be construed to make Mendly an agent, employee, joint venturer, partner or legal representative of Client. Mendly will neither have nor represent itself to have any authority to bind Client to any obligation. As an independent contractor, Mendly shall be solely responsible for determining the means and methods for performing the Services, and Mendly shall have complete charge and responsibility for persons employed by Mendly and engaged in the performance of the Services.
Any notice or approval required or permitted under this Agreement will be given in writing and will be sent by email, courier or mail, postage prepaid, to the address specified in the introductory paragraph or to any other address that may be designated by prior notice. Any notice or approval delivered by email will be deemed to have been received the day itis sent. Any notice or approval sent by courier will be deemed received one day after its date of posting. Any notice or approval sent by mail will be deemed to have been received on the 5th business day after its date of posting.
Neither party may assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without the other party’s prior written approval. Any attempt to do so without such approval will be void. Notwithstanding the foregoing, Mendly may assign this Agreement, and all right and obligations hereunder, upon notice to Client, in connection with a sale of all or substantially all of its assets, merger, consolidation or other reorganization of the party’s business, in whole or in part. Mendly may use subcontractors to perform Services, but Mendly shall remain responsible for its subcontractors’ acts and omissions while performing Services.
Any modification to this Agreement must clearly identify the provision being modified and be agreed to in writing by a duly authorized officer of each party. Client may issue purchase orders or similar documents for its administrative convenience only. Mendly HEREBY OBJECTS TO AND REJECTS ANY AND ALL DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS CONTAINED IN ANY SUCH DOCUMENT SUBMITTED TO Mendly.
If any provision of this Agreement is held to be unenforceable, this holding will not affect the validity of the other provisions of this Agreement, unless Mendly deems the unenforceable provision to be essential to this Agreement, in which case Mendly may terminate this Agreement, effective immediately upon notice to Client.
The laws of the State of Colorado govern this Agreement and any matters related to this Agreement, including the interpretation, construction, and enforcement of this Agreement, without regard to any conflicts of laws principles that would require the application of the laws of a different jurisdiction. Any party bringing a legal action or proceeding against the other party arising out of or relating to this Agreement, including to interpret or enforce any provision of this Agreement, shall bring the legal action or proceeding only in the state or federal courts for Boulder, Colorado. Each party consents and submits to the exclusive jurisdiction and venue of those courts for the purpose of all legal actions and proceedings arising out of or relating to this Agreement. Each party irrevocably waives (a) any objection that party may have to the venueof any such proceeding or legal action brought in those courts, and (b) any defense of inconvenient forum for the maintenance of a proceeding or legal action brought in those courts. Each party consents to process being served by any party to this Agreement in any action or legal proceeding by delivery in accordance with the notice provisions in this Agreement.
This Agreement and its Exhibits constitute the complete and exclusive statement of the terms, conditions and representations of the agreement between Mendly and Client with respect to the Services and supersedes all other agreements with respect to the subject matter hereof.
Either party shall be excused from performance and shall not be liable for any delay in whole or inpart (except for the payment of money), caused by the occurrence of any contingency beyond the reasonable control of the excused party or its subcontractors or suppliers. These contingencies include, without limitation, war, illness, sabotage, insurrection, riot or other act of civil disobedience, act of public enemy, failure or delay in transportation, act of any governmentor any agency or subdivision thereof affecting the terms hereof, accident, fire, explosion, flood, severe weather or other act of God, shortage of labor, fuel, raw material or machinery or technical system failure.
All headings and titles in this Agreement are for convenience only and are not to be used in any way in the construction or interpretation of this Agreement.
Nothing in this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities on any third party (including without limitation any employees or agents of either party) other than the parties or their respective successors and permitted assigns.
If an ambiguity or question of intent arises with respect to any provision of this Agreement, the Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring either party by virtue of authorship of any of the provisions of this Agreement.