Carefully read the terms and conditions of this Swivelfly Master Subscription Services Agreement (“Agreement”) before you execute this document. Swivelfly, Inc., a California corporation (“Swivelfly”) is only willing to provide the Subscription, defined below, to the Customer, set forth on the Order Form (“Customer”), if Customer agrees to the terms of this Agreement. Execution of it forms a binding legal contract with Swivelfly.
Subscription Service. Subject to the terms and conditions of this Agreement, Swivelfly shall make furniture and other services available to Customer (the “Subscription”) as set forth in the Order Form, available to Customer solely for Customer’s office use.
1. Term. The term of this Agreement (the “Term”) is set forth in the Order Form. The Term shall commence on the date Customer executes this Agreement (the “Effective Date”) and shall continue until the expiration, date at end of Term (“Expiration Date”), of the Subscription, or is terminated in accordance with the terms of this Agreement.
2. Fees. Customer shall pay the monthly fee (the “Subscription Fee”) set forth in the Order Form. Subscription Fees shall be paid in advance and shall be due and payable as of the Effective Date, the monthly Subscription Fee shall be paid for the following one (1) month of Subscription, until termination of the Agreement. The Subscription Fee is non-refundable. Payments will be made in US Dollars by ACH, Wire Transfer or Credit Card.
3. Renewal. When Customer does not wish to renew the Subscription at Expiration Date, Customer shall submit written request for non-renewal ninety (90) days before Expiration Date of the of this Agreement. Any time Customer fails to submit request for non-renewal as required, Term of Subscription will extend ninety (90) days (“Auto-Extend”) and will continue to Auto Extend until a time when a request for non-renewal is submitted as required. The determination of any renewal shall be made at the sole discretion of Swivelfly.
4. Late Payments. Any amounts past due shall be subject to a service charge equal to 10% of the amount due. Past due amounts shall also accrue interest at a rate of 1.5% per month or the maximum amount allowed by law, whichever is less. If any amounts are more than thirty (30) days past due, Swivelfly, at its discretion, may accelerate all payments due under this Agreement.
5. Company or Credit Information. Customer hereby warrants that any company or credit information submitted to Swivelfly as part of Customer’s order of the Subscription is true and correct.
6. Subscription Cancellation. During the Term, the Subscription cannot be cancelled by Customer unless agreed to by Swivelfly in writing. Should Swivelfly agree to cancel the Subscription, Swivelfly shall at its own discretion, do one or all of the following (i) bill Customer for the remaining payments due under this Agreement, (ii) charge a restocking fee, (iii) charge a fee for freight and handling for Property that is removed.
7. Swivelfly Property. Swivelfly shall own all right, title, and interest to all property delivered to Customer as part of the Subscription (the “Property”). Customer agrees that during the Term, all Property shall be located at the address set forth in the Order Form and shall not be moved without the prior written consent of Swivelfly. Customer further agrees that Swivelfly may file notices evidencing Swivelfly’s interest in the Property.
8. Installation of the Property. Customer’s the paid for Delivery and installation of the Property (White Glove Service) on the Order Form, this service shall be made by Swivelfly or its designee and shall be made during normal business hours and at a time and date agreed to by the parties. In the event any causes not within Swivelfly’s control postpone installation of the Property, the Property can be stored at Customer’s premises until installation can occur. Customer will be billed for any additional labor costs, at Swivelfly’s usual rates, resulting from overtime work performed at Customer’s request. Customer must keep the premises free and clear of debris before and during the installation. Hoisting or elevator service for all non street level premises and adequate facilities for off-loading, staging, moving, and handling of the Property shall be provided by Customer, without charge to Swivelfly. Notwithstanding the foregoing, Customer shall be responsible for installing and maintaining all data, phone and electrical cabling and hookups or connections for and to Customer’s premises in accordance with applicable law and codes.
9. Damage to Property. Customer assumes all obligations for and liability with respect to the possession, use, condition, and storage of the Property during the Term. If any Property mechanically fails through no fault of the Customer, Swivelfly shall repair or replace the Property in its sole discretion, at Swivelfly’s cost. If any Property is damaged due to the fault of the Customer, or any of its relations, Swivelfly may choose, in its sole discretion, to repair or replace the Property at Customer’s cost except where Customer has paid for Swivelfly’s Damage Waiver.
10. Inspection of the Property. Swivelfly, at its discretion, during Customer’s regular business hours and with two (2) business days’ prior notice to Customer, will have the right to enter, for the purpose of inspection, the premises where the Property is located or used.
11. Insurance. Customer shall provide comprehensive insurance for the Property, including general, property damage, fire, theft, and additional combined insurance coverage at Customer’s own cost and expense, and shall name Swivelfly as an additional insured on any policy. Coverage will be in the form and amounts as directed by Swivelfly from time to time, but shall be at least for the replacement value, to be calculated as total Subscription Term multiplied by monthly Subscription Fee, of the Property. Customer will have its insurer provide Swivelfly, within ten (10) days of the Effective Date, a certificate evidencing the required coverage and showing Swivelfly as a named insured on the policy. The policy will provide that the insurer will not cancel or materially modify the insurance except on thirty (30) days’ advance written notice to Swivelfly. If Customer fails to procure, maintain, or renew the insurance required hereunder, Swivelfly may, but is not obligated to, obtain insurance for Customer without prejudice to any other rights that Swivelfly may have.
12. Risk of Loss to Swivelfly Property. Customer assumes all risk and liability for the loss of or damage to the Property and for all other risks and liabilities arising from the use, condition, possession, or storage of the Property.
13. Indemnification. Customer shall indemnify, defend, and hold harmless Swivelfly, its directors, officers, employees, and agents, from and against all claims, loss, or damage related to any of the following reasons (i) loss of or damage to any of the Property, (ii) injury to any person including but not limited to agents or employees of Customer or Swivelfly, and (iii) damage to the Property from its use, condition, possession, or storage, except for usual wear and tear.
14. Disclaimer. Except as provided herein, the subscription and property provided to customer are on an “as available” basis and there are no other warranties or conditions, express or implied being provided including, without limitation, no warranties of merchantability, fitness for a particular purpose, satisfactory quality, title and non-infringement, or any warranties arising out of conduct or trade practice.
15. Limitation Of Liability. Swivelfly shall not be liable to customer for any loss of or damage caused to the customer or its employees during the installation, use, or removal of any Swivelfly property. Swivelfly shall not be liable to anyone for incidental, consequential, punitive, special or exemplary damages, or indirect damages of any kind or type, arising from a breach of warranty, breach of contract, or for negligence, tort, statutory duty, or any other legal cause of action arising from or in connection with the subscription. In no event shall Swivelfly’s liability for damages to customer exceed the amount paid by customer to Swivelfly in the immediately preceding twelve (12) month period under the agreement; provided, however, that this limitation of liability shall not apply to any damages arising out of unpaid subscription fees or taxes.
16. Conclusion of Agreement. Swivelfly shall be provided full access to take possession of the Property and for that purpose may enter any premises where the Property is located at any time, provided two (2) business days’ notice is given, without being liable in any suit, defense, or other proceedings to Customer. Should Swivelfly remove the Property prior to the end of the Term due to Customer’s default under this Agreement, Swivelfly may charge, at its option, additional removal fees to remove the Property from Customer’s premises.
17. Default by Customer. Customer shall be in breach of this Agreement if, upon receiving a notice of breach from Swivelfly, Customer fails to cure said breach within thirty (30) days of the date of the notice. Upon a breach of this Agreement by Customer, in addition to the rights of Swivelfly set forth elsewhere in this Agreement, Swivelfly shall have all rights under applicable law, including, without limitation, rights under Division 10 of the California Commercial Code.
18. Liens. Customer will not pledge, encumber, create a security interest in, or permit any lien to become effective on any of the Property.
19. General Provisions.
(a) Exhibits and Headings. Any exhibits, schedules, or other documents attached or referred to in this Agreement are an integral part of this Agreement and are incorporated herein by this reference. The division of this Agreement into paragraphs and subparagraphs and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation hereof.
(b) Entire Agreement. This Agreement, the Order Form, and any exhibits or schedules attached hereto constitute the entire agreement among the parties and except as herein stated and in the instruments and documents to be executed and delivered pursuant hereto, contain all of the representations and warranties of the respective parties. There are no oral representations or warranties of the parties of any kind. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. This Agreement may not be amended or modified in any respect except by written instrument signed by both parties.
(c) Governing Law, Jurisdiction, and Venue. This Agreement (and the rights and obligations of the parties with respect to their relationship under this Agreement) shall be governed by and construed and enforced in accordance with the laws of the State of California, excluding its conflict of laws rules to the extent such rules would apply the law of another jurisdiction. Subject to 19(d), the parties hereto consent to the jurisdiction of all federal and state courts in California, and agree that venue shall lie exclusively in Santa Clara County, California.
(d) Arbitration. At the request of any party, disputes of any kind arising from or related to this Agreement shall be decided by binding arbitration in accordance with the rules set forth by JAMS. At the request of any party, the arbitrators, attorneys, parties to the arbitration, witnesses, experts, court reporters, or other persons present at the arbitration shall agree in writing to maintain the strict confidentiality of the arbitration proceedings. Arbitration shall be conducted in Santa Clara County, California, by a single, neutral arbitrator or, at the election of any party if the amount in controversy exceeds $50,000, three neutral arbitrators, appointed in accordance with the rules set forth by JAMS. The award of the arbitrator shall be enforceable according to the applicable provisions of the California Code of Civil Procedure. Notwithstanding the foregoing, a party may apply to a court of competent jurisdiction for emergency relief in the form of a temporary restraining order pending final determination of a claim through arbitration in accordance with this Section. The parties shall share the costs of arbitration equally. The parties surrender and waive the right to submit any dispute to a court or jury, or to appeal to a higher court. There shall be no arbitration of any claim that would otherwise be barred by a statute of limitations if the claim were to be brought in a court of law. The arbitrator shall not have the power to award punitive, consequential, indirect, or special damages.
(e) Independent Contractors. Swivelfly’s relationship with Customer pursuant to this Agreement is that of an independent contractor. Neither party has any authority to bind the other, to assume or create any obligation, to enter into any agreements, or to make any warranties or representations on behalf of the other.
(f) Attorneys’ Fees. In any action, proceeding, or arbitration arising out of this Agreement, the prevailing party, by judgment or settlement, in that action or proceeding shall be entitled to recover reasonable attorneys’ fees, expert witness fees, and court costs as may be fixed by the court, jury, or arbitration panel.
(g) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument. The parties agree that a facsimile or electronic mail of a signed counterpart shall be as effective and have the same force and effect as the original thereof.
(h) Notices. Any notice required or permitted to be given hereunder shall be in writing and shall be deemed effective: (i) when delivered personally, (ii) one business day following confirmed facsimile transmission, confirmed electronic mail transmission, or deposit with an overnight-delivery service, or (iii) three business days following deposit by prepaid mail; addressed to the recipient as set forth in the Order Form.
(i) Construction. The parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to any interpretation of this Agreement. If any provision of this Agreement is for any reason held to be invalid, illegal, or unenforceable under applicable law in any respect, then: (i) such invalidity, illegality, or unenforceability shall not affect the other provisions of this Agreement; (ii) this Agreement shall be construed as if such invalid, illegal, or unenforceable provision were excluded from this Agreement; and (iii) the court in its discretion may substitute for the excluded provision an enforceable provision which in economic substance reasonably approximates the excluded provision.
(j) Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. The express waiver of any right or default hereunder shall be effective only in the instance given and shall not operate as or imply a waiver of any similar right or default on any subsequent occasion.
By Signing Order Form Customer acknowledges that Customer has read, understands, and agrees to be bound by the terms above.
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