TERMS AND CONDITIONS

Agreement to Terms.  All purchase orders for services (“Services”) to be performed by Work of Art Services, Inc. a California corporation (the “Company”), are subject to and expressly conditioned upon these Terms and Conditions (the “Terms”).  Submission of a purchase order, order confirmation, and/or acceptance of Services by a purchaser (each, a “Purchaser”) shall be an acceptance of these Terms. 

Controlling Provisions. Any terms or conditions not expressly set forth herein shall not be binding upon the Company unless accepted by the Company in a writing signed by the Company's President.  Any additional or inconsistent terms and conditions proposed by the Purchaser at any time are hereby specifically rejected by the Company absent a separate writing signed by the Company’s President. All terms and conditions contained in any prior oral or written communication, including, without limitation, Purchaser's purchase order or order confirmation, which are different from or in addition to the terms and conditions contained herein are hereby rejected and shall not be binding on the Company, whether or not they would materially alter this document or otherwise.

Delivery and Performance. Company shall use reasonable efforts to perform the Services in accordance with the timeline set forth in any applicable purchase order or order confirmation, subject to any delays caused by Purchaser or an act of God or any other delays which are outside of Company’s reasonable control. Company accepts no liability for failure to deliver or perform on or by a particular date based on any of the foregoing delays. If not specified in a purchase order or order confirmation, Company and Purchaser shall mutually agree in writing on the timing and the manner of the performance of the Services. It is understood and agreed that the Services provided hereunder are not exclusive, meaning that Company and any of its affiliated entities may provide similar or identical services to any other businesses or persons in any industry anywhere in the world, without any limitations or restrictions. Company will use reasonable efforts to assign qualified and competent personnel to perform the Services. 

Approval of Materials.  At Company’s request, the parties shall mutually approve any materials for inclusion in the Services, provided that, the Purchaser offers timely and prompt approvals. Purchaser’s failure to provide timely feedback within five (5) business days following Company’s request for feedback shall constitute approval and such delay shall not constitute a breach by Company. Timely Purchaser feedback is essential in order for Company to maintain agreed project schedules for Purchaser and its other clients and Purchaser’s failure to provide any requested timely feedback will excuse any resulting delay in performance.  These timelines for feedback may be shortened by Company if necessary to meet the Purchaser’s delivery expectations. 

Additional Work. Any additional work beyond the scope of the project described in the purchase order and/or order confirmation, that the parties subsequently agree shall be undertaken, will be charged at such fees that Company and Purchaser agree upon in advance of the additional work commencing. To the extent Purchaser authorizes any work and it is performed without any agreement as to fees, it will be performed on a time and materials basis utilizing Company’s then-current rates for the personnel utilized. Any projects that need to be performed on a rush basis may be assessed additional charges and fees to cover, in addition to other things, overtime charges and other incidental expenses incurred for rush performance.  

Appointment Cancellation Fee.  Company is committed to providing exceptional services to all of its clients. Unfortunately, when a client cancels an appointment with without giving Company enough advance notice, it prevents Company from being able to perform services for its other clients.  As a result, if Purchaser has to cancel an appointment and fails to contact Company to cancel the appointment with at least 24 hours’ notice, Purchaser will be charged a minimum cancellation fee of $210 for the missed appointment.

Payment Terms.  Unless otherwise agreed to between the parties in writing, payment terms are net 15. In the event Purchaser fails to make full payment to the Company within 30 days of invoice, Purchaser's entire account(s) with the Company shall become immediately due and payable without notice or demand, and all past due amounts will be immediately subject to interest charges at the lesser of 10% per annum or the maximum rate permitted by law. 

Remedies of Company. Upon an event of default by Purchaser, Purchaser agrees to reimburse the Company for any and all attorney fees and court costs incurred by the Company in connection with the occurrence of such event of default. Purchaser agrees that any of the following shall constitute an event of default which shall enable the Company, at its option, among other things, to cancel any unexecuted portion of Purchaser’s order for Services or to exercise any right or remedy which it may have at law or otherwise: (i) the failure of Purchaser to perform any term or condition contained herein; (ii) any failure of Purchaser to give required notice; (iii) the insolvency of Purchaser or its failure to pay debts as they mature, an assignment by Purchaser for benefit of its creditors, the appointment of receiver for Purchaser or for the materials covered by this order or the filing of any petition to adjudicate Purchaser bankrupt; (iv) the death, incompetence, dissolution or termination of existence of Purchaser; (v) a failure by Purchaser to provide adequate assurance of performance within ten (10) days after a justified demand by the Company, or (vi) if the Company, in good faith, believes that Purchaser's prospect of performance under this Agreement is impaired. All rights and remedies of the Company herein are in addition to, and shall not exclude, any rights or remedies that the Company may have at law. In the event it becomes necessary to incur any expense for collection of any overdue account, reasonable collection charges, including reasonable attorneys' fees, will be added to the balance due and the Company shall pay all such charges.

Governing Law. This transaction shall be governed in all respects by the laws of the State of California (excluding choice of law provisions) and any and all actions arising from this transaction shall be brought in a federal or state court of competent jurisdiction in the County of Alameda, State of California, and in no other jurisdiction. 

Delivery. The Company shall in no way be liable for, assumes no responsibility or liability for, and will accept no back charge for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to the Company, including, without limitation, liability for the Company's non-performance caused by acts of God, war, labor difficulties, accidents, acts of Purchaser, its agents, employees, subcontractors, or customers, inability to obtain materials, delays of carriers, contractors or suppliers or any other causes of any kind whatever beyond the control of the Company. Under no circumstances shall the Company be liable for any special, consequential, incidental, indirect, or liquidated damages, losses, or expense (whether or not based on negligence) arising directly or indirectly from delays or failure to give notice of delay.  

Permits. Purchaser shall, at its own expense, apply for and obtain any permits and inspections required for the provision of the Services. The Company makes no promise or representation that the Services or products thereof will conform to any federal, state or local laws ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by the President of the Company. 

Warranty and Liability.  All conditions, warranties and representations, expressed or implied by statute, common law or otherwise, in relation to the supply, non-supply or delay in supplying the Services are excluded to the extent permitted by law. Company expressly disclaims all warranties, express or implied, including, without limitation, implied warranties of merchantability and fitness for a particular purpose, which are hereby specifically excluded. Company (including its affiliates, employees, agents, officers, shareholders, directors, and assigns) shall not be liable to Purchaser or any other persons, whether in contract, tort (including negligence or breach of statutory duty or strict liability or otherwise) or otherwise for any of the following losses or damages, whether direct or indirect, arising out of, or in connection with, the supply, non-supply or delay in supplying the Services:

10.2.1 loss of actual or anticipated profits;

10.2.2 loss of business opportunity;

10.2.3 loss of anticipated savings;

10.2.4 loss of goodwill;

10.2.5 injury to reputation; or

10.2.6 any indirect, exemplary, incidental, special or consequential loss or damage howsoever caused even if Company was advised of the possibility of them in advance or even if such damages are foreseeable. 

The entire liability of Company (its affiliates, officers, directors, shareholders, affiliates, employees, agents, insurers, and assigns) arising out of or in connection with the supply, non-supply or delay in supplying and performing the Services, whether in contract, tort (including negligence, strict liability, indemnification, or breach of statutory duty) or otherwise, shall not exceed a total aggregate amount of the greater of either $100 or the fees actually received by Company from Purchaser under the applicable purchase order or order confirmation.

Indemnification.  Purchaser shall indemnify and defend Company from any and all damages, liabilities, costs, losses or expenses (including reasonable attorneys’ fees and court costs) arising out of Purchaser’s use of the Services, a material breach of Purchaser’s representations or warranties under these Terms, or any third party claim relating to the Services and the results and/or products thereof, except insofar as any such claims, damages, liabilities, costs, losses or expenses arise as a result of the gross negligence or intentional misconduct of Company. Under such circumstances (i) Company shall promptly notify Purchaser in writing of any claim or suit; (ii) Purchaser shall have sole control of the defense and all related settlement negotiations, provided that Purchaser may not settle a claim without Company’s prior written consent (not to be unreasonably withheld) if the settlement requires Company to admit any liability or take any action or refrain from taking any action; (iii) Company may participate in the defense of any claim at its expense; and, (iv) Company shall provide Purchaser with commercially reasonable assistance, information and authority necessary to perform Purchaser’s obligations under this section. Purchaser shall reimburse the reasonable out-of-pocket expenses incurred by Company in providing such assistance. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of the transaction underlying these Terms and the completion of the provision of the Services.

Severability. These Terms shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these Terms and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance herefrom.

Set-Off. Purchaser shall not be entitled to set-off any amounts due to Purchaser against any amount due to the Company in connection with Company’s provision of Services to Purchaser.

Non-Waiver. The Company's failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of the Company's rights or remedies as set forth in these Terms, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by the Company's President.

No Assignment.  Purchaser may not assign in any way with all or any part of its payment obligations to Company for the Services.  

No Third-Party Beneficiaries.  Unless stated otherwise in these Terms, no person or entity other than Purchaser shall have any rights, interest or claims to the Services or be entitled to any benefits with respect to the Services as a third-party beneficiary or otherwise.  

Entire Agreement. This document constitutes the entire, complete, and exclusive agreement between the parties with respect to the subject matter hereof and contains all the agreements and conditions of sale; no course of dealing or usage of the trade shall be applicable unless expressly incorporated herein. The terms and conditions contained herein may not be added to, modified, superseded or otherwise altered except by a written modification signed by the Company's President. All transactions shall be governed solely by the terms and conditions contained herein.