Legal Notifications

THE FINE PRINT
ERIK EWERT  dba EWERT DESIGN GROUP
TERMS & CONDITIONS
These Terms and Conditions apply to that certain Scope of
Services Agreement attached hereto and incorporated by reference
herein including all exhibits and attachments thereto. By executing the
SCOPE OF SERVICES document, ERIK EWERT Sole Proprietor 
 d/b/a Ewert Design Group (EDG) and Client agree to be
specifically bound by the Terms and Conditions of this document and
EDG and Client understand and acknowledge valuable
consideration has been exchanged between the Parties under this
Agreement.
1. The Project
The Project is defined by that certain SCOPE OF SERVICES
“Scope” document which is attached to this Agreement and incorporated
by reference herein as material terms to this Agreement. The Project
shall also incorporate by reference any architectural drawings, sketches,
specific design criteria, materials requirements, and related documents.
In the event any term or condition contained in the Scope differs from a
term or condition contained in this Agreement, the term or condition of the
Scope shall control.
2. Compensation
Client shall pay EDG the sum set forth in the Scope for services
provided under this Agreement in US Dollars by business check, cashier’s
check or wire transfer.
(a) Adjustment to Compensation for Market Conditions: EDG
reserves the right to adjust the Project Compensation in the event labor,
materials or other supplies required for the Project increase in price more
than ten (10%) percent between Execution of this Agreement and
acquisition of the required labor, materials or supplies.
(b) Adjustment to Compensation due to Changes in Scope: In the event
the Scope of the Project changes after execution of this Agreement
(“Change Order”), EDG shall be entitled to additional compensation
as a result of the Change Order. All Change Orders shall be in writing
substantially similar to the Change Order Form attached as Exhibit “A” to
this Agreement. No Change Order shall reduce the compensation due to
EDG under this Agreement. In the event EDG performs
services for Client outside of the Scope, and no Change Order is signed
by the Client and EDG , EDG shall be entitled to a reasonable
sum for services performed under the Change Order at the hourly labor
rate of $425.00 per hour plus the cost of materials which sum is deemed
reasonable by the parties as compensation to EDG for the time
incurred in performing additional services and materials. EDG and
Client do not intend this sum to be a penalty, but rather a reasonable preestimate
of the value of the services and materials rendered on unsigned
Change Orders. Change Orders may be “signed” electronically by Client
and EDG by exchanging emails with the Change Order attached with
the following statement or similar words:
“The attached Change Order to the Agreement dated
_____, is agreed to by Client.”
3. Intellectual Property & Marketing Rights
[The Client shall retain all right, title and interest in and to the drawings,
designs, processes, and renderings (“Intellectual Property”) created for,
modified for, or otherwise utilized in the project and included in the
Deliverables. EDG shall be entitled to use the Intellectual Property
derivatively on any other Project. EDG shall have the right to
photograph and record video images of the Project (“Project Media”) and
shall have the right to utilize such Project Media for marketing purposes.
“Deliverables" means all documents, work product and
other materials that are delivered to Customer hereunder or
prepared by or on behalf of EDG in the course of performing
the Services, including any items identified as such in the Scope of
Services.
4. Variation in Materials
EDG shall use best efforts to supply the highest quality
materials available in accordance with the Scope. EDG shall not be
responsible for minor deviations from the Scope due to natural production
variations in materials provided under the Scope.
5. Design/Installation Variations
EDG shall use best efforts produce and install the Project
in exact accordance with the Scope. However, in some cases, production
and installation as set forth in the Scope is either impracticable or
impossible due to a variety of conditions including without limitation the
installation site, weather conditions, and the laws of physics. In such
instances, EDG shall consult with Client on the matter and explain
potential solutions. Notwithstanding the foregoing, EDG shall have
the right to modify the design, production and/or installation to best
complete the Project for Client.
6. Time of Completion; Delays
EDG shall use best efforts to complete each phase of the
Project within the date(s) set forth in the Scope. EDG shall not be
responsible for delays in completion due to the unavailability of materials,
delays caused by other trades at the installation site, delays caused by
weather, delays caused by Change Orders to the Scope and other delays
outside of the control of EDG .
7. Terms of Payment
Upon the completion of each Phase of the Project, EDG
shall notify Client of the completion of the Phase. Client shall have
seventy-two (72) hours to notify EDG in writing of any objection to
the services provided in connection with the completed Phase (“Approval
Period”). If no written objection is sent within the Approval Period, Client
shall be deemed to have accepted the services provided during the Phase
and shall make payment within forty-eight (48) hours. All invoices are due
within ten days of the Notice date. Failure to make payment within thirty
(30) days shall result in interest accruing on all unpaid sums at the rate of
1.5% per month or the highest rate allowed by law, whichever is greater.
8. Notices
Except as set forth in Section 2(b) above, all notices or
documents required or permitted to be delivered by any party relating to
this Agreement shall be in writing and shall be delivered by certified mail
(postage prepaid, return receipt requested), overnight courier, electronic
mail or facsimile to the relevant party to the address set forth on the Scope
of Services.
9. Duty of Cooperation
Client, or Client's Agent, as the case may be, shall at all times
be reasonably available to EDG , its employees, contractors, agents
and assigns to answer questions related to the Project or otherwise assist
in the orderly, efficient completion of the Project. Failure of Client to
respond to EDG's inquiries within forty-eight (48) hours shall be a
breach of this Agreement.
10. Termination
EDG may suspend work and/or terminate this Agreement
for the Client's breach of this Agreement. Events of default include: (i)
failure to make timely payment of sums due and owing under the
Agreement; (ii)failure to timely provide required drawings, materials or
other elements required for EDG to complete the Project; (iii) failure
to otherwise cooperate in the orderly completion of the Project as
required, and (iii) failure or refusal to sign, electronically or otherwise,
Change Order(s) presented by EDG for the Project. In the event of
termination, EDG shall be entitled to all sums remaining due and
owing under the Agreement without regard to the level of completion of
the Project. In the event, EDG is required to initiate legal
proceedings to enforce the terms of this Agreement, EDG shall be
entitled to an award of reasonable attorney's fees and expenses of
litigation.
11. Successors and Assigns This Agreement shall be binding
upon an inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
12. Relationship of Parties. The relationship between the parties
is that of independent contractors. Nothing contained in this Agreement
shall be construed as creating any agency, partnership, joint venture or
other form of joint enterprise, employment or fiduciary relationship
between the parties, and neither party shall have authority to contract for
or bind the other party in any manner whatsoever.
13. Non-Exclusivity of EDG . EDG retains the right to
perform the same or similar type of services for third parties during the
Term of this Agreement, except that, during the Term, Service Provider
shall not provide services to the following direct competitors of
Customer: [LIST DIRECT COMPETITORS].]
[OR]
Non-Exclusivity of EDG . EDG retains the right to
perform the same or similar type of services for third parties during the
Term of this Agreement.
14. Governing Law This Agreement, the rights and obligations of
the parties hereunder and all other matters or claims arising out of or
related to this agreement (whether sounding in contract or tort) shall be
governed by, construed and enforced in accordance with the laws of the
State of Georgia without regard to its conflicts of law rules.
15. Arbitration In the event a dispute arises out of this Agreement,
the dispute shall be submitted to the American Arbitration Association,
Atlanta Office. Any Arbitration shall take place within Atlanta, Georgia,
unless otherwise agreed to by the parties.
16. Confidentiality. For purposes of this Agreement,
"Confidential Information" means any information that is treated as
confidential by a party, including, without limitation, trade secrets,
technology, information pertaining to business operations and strategies,
and information pertaining to customers, pricing, and marketing.
Confidential Information shall not include information that: (a) is
already known to the Receiving Party without restriction on use or
disclosure prior to receipt of such information from the Disclosing Party;
(b) is or becomes generally known by the public other than by breach of
this Agreement by, or other wrongful act of, the Receiving Party; (c) is
developed by the Receiving Party independently of, and without
reference to, any Confidential Information of the Disclosing Party; or (d)
is received by the Receiving Party from a third party who is not under any
obligation to the Disclosing Party to maintain the confidentiality of such
information.
The Receiving Party agrees:
(a) not to disclose or otherwise make available Confidential
Information of the Disclosing Party to any third party without the prior
written consent of the Disclosing Party; provided, however, that the
Receiving Party may disclose the Confidential Information of the
Disclosing Party to its [and its Affiliates, and their] officers, employees,
consultants and legal advisors who have a "need to know", who have
been apprised of this restriction and who are themselves bound by
nondisclosure obligations at least as restrictive as those set forth in this
Section 9;
(b) to use the Confidential Information of the
Disclosing Party only for the purposes of performing its
obligations under the Agreement or, in the case of
Customer, to make use of the Services and Deliverables;
and
(c) to promptly notify the Disclosing Party in the
event it becomes aware of any loss or disclosure of any of
the Confidential Information of Disclosing Party.
If the Receiving Party becomes legally compelled to
disclose any Confidential Information, the Receiving Party shall
provide:
(a) prompt written notice of such requirement so that the
Disclosing Party may seek, at its sole cost and expense, a
protective order or other remedy; and
(b) reasonable assistance, at the Disclosing
Party's sole cost and expense, in opposing such
disclosure or seeking a protective order or other
limitations on disclosure.
If, after providing such notice and assistance as required herein, the
Receiving Party remains required by Law to disclose any Confidential
Information, the Receiving Party shall disclose no more than that portion
of the Confidential Information which, on the advice of the Receiving
Party's legal counsel, the Receiving Party is legally required to disclose
[and, upon the Disclosing Party's request, shall use commercially
reasonable efforts to obtain assurances from the applicable court or
agency that such Confidential Information will be afforded confidential
treatment].
Nothing in this Agreement shall prevent either party from using
any general methodologies or know-how contained in the unaided
memory of such party's personnel developed or disclosed under this
Agreement, provided that in doing so it is not in breach of its obligations
of confidentiality under this Section or using any Intellectual Property
Rights of the other party [or any of its Affiliates.
17. Time
Time is of the essence in this Agreement.
18. Limitation of Liability
(a) No Consequential or Indirect Damages. IN NO EVENT
SHALL EDG ’S [OR ANY OF ITS REPRESENTATIVES BE LIABLE
UNDER THIS AGREEMENT TO CLIENT FOR CONSEQUENTIAL,
INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR
ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR
DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO,
AND/OR IN CONNECTION WITH ANY BREACH OF THIS
AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES
WERE FORESEEABLE, (B) WHETHER OR NOT CLIENT WAS
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE
LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR
OTHERWISE) UPON WHICH THE CLAIM IS BASED.
(b) Maximum Liability. IN NO EVENT SHALL EDG ’S
AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR
OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO
SELLER PURSUANT TO THIS AGREEMENT.
(c) If Remedy Fails Essential Purpose. THE LIMITATION OF
LIABILITY PROVISIONS SET FORTH IN THIS SECTION 18 SHALL
APPLY EVEN IF THE REMEDIES UNDER THIS AGREEMENT FAIL OF
THEIR ESSENTIAL PURPOSE.
Client acknowledges and agrees that the parties entered into
the Agreement in reliance upon the limitations of liability set forth in this
Section 1, that the same reflect an allocation of risk between the parties
(including the risk that a contract remedy may fail of its essential purpose
and cause consequential loss), and that the same form an essential basis
of the bargain between the parties.
ERIK EWERT
d/b/a
EWERT DESIGN GROUP (EDG)
289 Little Street, SE, Atlanta, Georgia 30305