1. Consultant will provide Welding and Fabrication services to the Customer for the purposes of rendering Welding and Fabrication services. In performing the Services (defined in estimate/sales agreement) unless otherwise agreed in writing by the parties, the term of this Agreement will commence on the Effective Date.
Reporting and Meetings
2. The Customer shall designate an employee (in writing) as the “Customer Contact” who shall be available to meet with Consultant when reasonably required by Consultant for the purposes of discussing the status of the Services. Consultant will communicate regularly with the Customer Contact to report to the Customer on the status of the Services.
Consulting Rates and Other Expenses
3. Consultant will provide Services to the Customer and will be entitled to charge the Customer for such Services at the rates specified on the estimate and/or sales agreement.
Payment of Invoices
4. Upon signature, emailed approval or an issued Purchase Order the Initial payment is due on the Effective Date listed on the Estimate or Sales Agreement provided by via email. All subsequent invoices issued by Consultant are due and payable by the first day of the applicable billing cycle (the “Due Date) If payment is not made by the Due Date, the amount owed will increase by an additional 4% of the total past due, never to exceed 8%. If the Customer fails to pay Consultant in full in accordance with these terms, all deliverables set forth in the Estimate/Sales Agreement/Purchase Order will be suspended until payment is received.
5. Neither party will disclose to any third party, or use other than for the purposes of this Agreement, any knowledge or information imparted to or obtained by it during or in connection with the fulfillment of this Agreement which is of a secret or confidential nature relating to the business, equipment, processes, products, software, services, or business strategies offered or employed by the other, including all products. This obligation of confidence will cease to apply in relation to information that a party is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach of the obligations of confidence under this Agreement. Each party will retain all right, title, and interest to such party’s confidential or proprietary information. No license to any intellectual property is either granted or implied by the conveying of confidential or proprietary information.
Disclaimer of Warranty; Limitations of Liability
a) To the extent permitted by the law, CONSULTANT EXPRESSLY DISCLAIMS ALL WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CONSULTANT MAKES NO OTHER WARRANTIES WHATSOEVER WITH RESPECT TO THE SERVICES, PRODUCTS PROVIDED UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE. NO AGENT OR EMPLOYEE OF CONSULTANT IS AUTHORIZED TO MODIFY THESE PROVISIONS REGARDING WARRANTIES.
b) NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, IN NO EVENT WILL CONSULTANT BE LIABLE TO ANY PARTY, INCLUDING THE CUSTOMER, FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM EQUIPMENT OR PROCESSING DOWNTIME, HOWEVER IT ARISES, WHETHER FOR BREACH OF THIS AGREEMENT OR IN TORT, WHETHER OR NOT FORESEEABLE AND EVEN IF CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. FURTHER, THIS LIMITATION ON DAMAGES IS AGREED AND INTENDED BY THE PARTIES TO SURVIVE EVEN IF INCLUSIVE REMEDIES PROVIDED HEREUNDER FAIL THEIR ESSENTIAL PURPOSE. THE CUSTOMER WILL INDEMNIFY AND HOLD HARMLESS CONSULTANT FROM AND AGAINST ANY CLAIMS BY ANY THIRD PARTY FOR SUCH DAMAGES.
Assistance and Facilities
6. The Customer will provide Consultant with all reasonable assistance and facilities free of charge (including without limitation of the Means of Access and the other Items referred to in the Estimate/Sales Agreement/Purchase Order, office facilities, and liaison with the necessary officers and employees of the Customer in order to permit Consultant to efficiently provide the Services.
7. The Customer acknowledges that Consultant is providing Services to the Customer on a non-exclusive basis and that Consultant may provide services of the same or a similar nature as the Services to any other party.
8. This Agreement may be terminated in the following circumstances:
a) By Customer for any reason upon 2 days’ notice in writing given at any time after expiration of the terms stated in the Estimate or Sales Agreement;
b) By Consultant by notice in writing if the Customer fails to remedy a breach of this Agreement (including any provision as to payment) within fifteen (15) days of receipt of a notice from Consultant of such breach;
c) By either party immediately upon giving notice in writing (the “Notice”) if the other party takes any corporate action or other steps are taken or legal proceedings are started (and are not withdrawn, discontinued or struck out within twenty-one (21) days) for its winding up, liquidation or dissolution (other than for the purposes of reconstruction) or the appointment of an administrator, receiver, receiver and manager, official manager, liquidator, provisional liquidator, trustee or similar office of it or of any or all of its revenues and assets (“Insolvency Event”), and such Insolvency Event remains in existence in respect of such party at the time of service of the Notice.
9. On termination of this Agreement however occurring, all sums due under the Agreement immediately become due and payable by any bank card issued or on file, certified check, or cashier’s check, including monthly payments due for any months remaining of the initial minimum contract term. In addition, in conformance with Paragraph 14 but subject to the exception provided therein, as applicable, Customer must immediately cease to use all equipment or fabricated materials, provided by Consultant. Consultant will be entitled to retake possession of all products and to disable any services provided pursuant to this Agreement (including by remote means). Because of the unique nature of the Services and products provided under this Agreement, Customer acknowledges and agrees that the Consultant will suffer irreparable injury if the Customer fails or refuses to allow the Consultant to remove Consultant’s proprietary materials and products, and that monetary damages may be inadequate to compensate the Consultant for Customer’s breach. Accordingly, the Customer agrees that Consultant will be entitled to injunctive relief, without posting a bond, to enforce the terms of this Agreement including the immediate de-installation and return of Consultant’s proprietary materials and products ,in addition to any other remedies that may be available to it at law or in equity,
10. Consultant reserves the right to terminate or deny any service for any reason, including without limitation for failure to pay for Services as agreed upon herein, and with respect to the customer involved in illegal activities, unprofessional acts and which may be considered offensive, improper, or obscene, such as relating to pornography, racism, religion, politics, violence, crime, or terrorism.
11. Any notice required or contemplated by this Agreement shall be deemed to have been duly given if it is in writing, properly addressed and delivered personally or mailed by registered or certified mail, postage prepaid or transmitted by fax or electronic mail to the Customer or Consultant at the address set out in the Schedule or this Agreement or such other address nominated by a party in writing.
12. This Agreement shall be governed by and must be construed in accordance with the laws of the State of Texas without regard to its conflicts of laws principles, in the United States, and the Customer submits to the non-exclusive jurisdiction of the courts of that State.
a) By signing this Agreement, Customer agrees to pay JK Welding Service LLC by the issued estimate or sales agreement (plus any applicable taxes) for a minimum mandatory term defined in the Agreement from the Effective Date in accordance with the Schedule.
b) Prior to the service, Company will issue an estimate for services or granted services, as applicable, the fees due in accordance with the Schedule. Invoiced amounts must be paid on or before due dates listed of the service in accordance with Section 4 of this Agreement. Customer understands and acknowledges that the required fees will automatically be charged as set forth in the Estimate or Sales Agreement. Texas customers will be charged and are obligated to pay sales tax of 8.25% on all Services as required by law, unless a sales tax exemption certificate is provided with proper documentation.
13. For clarity, Customer understands that this is our payment structure and acknowledges that failure to pay by the applicable Due Date specified on the Estimate or Sales Agreement will suspend all deliverables set forth. Consultant will not refund any deposit or payment once work has begun on Customer’s project as agreed in the Agreement. The Agreement is legally binding upon Customer’s signature or acknowledgement via email and remains in effect until terminated as provided herein.
Products Usage Rights
14. The Customer has the right to use inquire for changes or additional services only so long as the Agreement is in place and payments for Services are in current standing upon expiration or termination of the Agreement.
(A) Consultant will cease all further delivery of Services, products, and content.
(B) All rights and licenses of Customer under this Agreement will terminate. If Customer has given proper notice of termination, the mandatory minimum term has expired, and Customer has paid in full all sums due under this Agreement then the Customer will retain ownership during the term of this Agreement.
This Agreement may be assigned, delegated, or otherwise transferred by Consultant without the prior consent of the Customer. The Consultant may, without the prior consent of the Customer, assign any or all of its rights under this Agreement to
(i) a parent, subsidiary, affiliate, or associate of Consultant, or
(ii) a purchaser of all or substantially all assets of Consultant. This Agreement shall bind and insure to the benefit of Consultant and Customer and their respective successors and permitted assignees.
J K Welding Service, LLC
18433 FM 529 Rd.
Cypress, TX 77433