Customer wishes to be provided with the Services (as defined below) by Eco Creations and Eco Creations agrees to provide the Services to Customer in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows:
Customer hereby retains Eco Creations to provide one or more of the following services (collectively the “Services”):
Children’s Art Classes: 4-week or 8-week art class for children (one class per week) according to the terms and conditions stated on Eco Creations website and/or other relevant promotional materials at the time.
Children’s Art Camp: A Day Camp for children focusing on art creation in accordance with the terms and conditions stated on Eco Creations website and/or other relevant promotional materials at the time.
Kid’s Night Out: An evening art class for children in accordance with the terms and conditions stated on Eco Creations website and/or other relevant promotional materials at the time.
Adult Sip-and-Paint: Individual one-time paint class for adults in accordance with the terms and conditions stated on Eco Creations website and/or other relevant promotional materials at the time.
The Parties acknowledge and agree that Eco Creations is only responsible for providing the Services listed in this Section and the corresponding Exhibits and/or incorporated documents unless the Parties mutually agree otherwise.
The Parties acknowledge and agree that during the term of the Agreement the Services may be modified and/or expanded from time to time upon a written agreement executed by authorized representatives of the Parties expressly referencing this Agreement.
Customer acknowledges and agrees that Eco Creations may use subcontractors and consultants to perform some of the Services to be provided under this Agreement.
Fees and Expense
Fees & Expenses. As full and complete compensation for performing all Services specified in this Agreement and for assuming all duties, responsibilities, and obligations required by this Agreement, Customer will compensate Eco Creations for all fees (the “Fees”) incurred in accordance with current program pricing (“Program Pricing”) as of the date of execution of this Agreement, incorporate by reference herein. Eco Creations fees are exclusive of taxes, levies, duties, governmental charges and expenses (with the exception of any Eco Creations income taxes), which amounts will be billed to and paid by Customer. Customer shall further pay Eco Creations for the expenses set forth on the Program Pricing sheet, if any, for the corresponding Services selected in Section 2(a) (the “Expenses”).
Billing and Payment. Customer will pay the Fees set forth in the Program Pricing, in U.S. dollars, for the corresponding Services selected in Section 1(a), either (i) in advance on Eco Creations’ website, or (ii) by due-on-receipt, electronic invoicing. Payments on electronic invoicing are due upon receipt and must be made by wire transfer, certified check, bank check or such other method as may be agreed upon by Eco Creations. Customer shall have no right of offset or withholding under this Agreement. Any amounts not paid by Customer when due to Eco Creations shall be subject to interest charges, from the date due until paid, at the rate of the highest interest rate allowable by law, payable monthly. If any amounts due to Eco Creations from Customer becomes past due for any reason, Eco Creations may at its option and without further notice withhold further Services until all invoices have been paid in full, and such withholding of Services shall not be considered a breach or default of any of Eco Creations obligations under this Agreement.
Late Pickup Fee. If purchasing Services on behalf of a minor child who will dropped off and picked up after a class or camp, Customer acknowledges and agrees to pick up such minor child at the designated end time of such class or camp. If the minor child is not picked up within ten (10) minutes of the scheduled class or camp end time, Customer agrees to pay an additional Fee of Two Dollars ($2.00) per minute for each minute exceeding the 10-minute grace period (the “Late Pickup Fee”). The Late Pickup Fee will be due immediately, and Customer agrees that such Late Pickup Fee shall be billed and paid from Customer’s credit card on file.
Credit Card Payments. Customer shall be responsible for any transaction/credit card fees charged to Eco Creations if Customer uses a credit card to pay Fees, and such charges shall be included in Customer’s invoices. Eco Creations’ Fees are exclusive of these charges.
Cancellations. Customer acknowledges and agrees that no partial refunds or credits will be provided by Eco Creations for missed classes; further:
No make-up classes will be offered for a missed class during a 4-week class session;
One (1) make up class will be allowed for an 8-week class session;
No refunds will be issued for individual sip-and-paint events unless cancellation is requested at least forty-eight (48) hours prior to event time; and
Camp weeks cannot be transferred to other weeks and are non-refundable. No refunds or credits will be given for missed camp weeks or days. A missed camp day shall include any instance in which a child becomes ill and leaves camp early.
Compliance with Laws; Permits and Licenses. Both Parties agree, at their own expense, to operate in full compliance with all governmental laws, regulations and requirements applicable to the duties conducted hereunder. Eco Creations will obtain and maintain in force, at its own expense, all licenses, permits and approvals required for its performance under this Agreement, and will obtain all required inspections, authorizations and approvals prior to commencement of the Services.
Photo Release & Consent to Use. Customer hereby consents to and authorizes the use and reproduction of any photographs taken of Customer and any customers or minors on whose behalf Customer is entering this Agreement. Eco Creations shall have the right to take and use any photographs of its students or students’ artwork in all markets and media throughout the world, in perpetuity. Eco Creations may videotape, photograph and/or electronically scan any artwork created by Customer and/or any minors of Customer, including but not limited to all social media platforms, print media or digital media.
Behavior Expectations. Customer and any minors on whose behalf Customer enters this Agreement, shall abide by all behavior expectations as set forth on Exhibit B herein.
Eco Creations does not warrant in any form the results or achievements of the Services provided or the resulting work product and deliverables. Eco Creations warrants that that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices.
LIMITATION OF WARRANTY. THE WARRANTY SET FORTH IN THIS SECTION IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. ECO CREATIONS DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. ECO CREATIONS SHALL NOT BE LIABLE FOR ANY SERVICES OR WORK PRODUCT OR DELIVERABLES PROVIDED BY THIRD PARTY VENDORS IDENTIFIED OR REFERRED TO CUSTOMER BY ECO CREATIONS DURING THE TERM OF THIS AGREEMENT, PURSUANT TO ANY SOW OR OTHERWISE. CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF THE SERVICES, OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES.
Administration of Prescribed Medication. If purchasing Services on behalf of a minor child who will be taking medication during the time Services are being provided, Customer agrees to execute the Authorization to Administer Medication and Release of Liability Form.
Emergency Contact Information. If purchasing Services on behalf of a minor child, Customer agrees to execute the Emergency Contact Form and by this reference incorporated herein.
Ownership of Work Product. This is not a work-for-hire agreement. The intellectual property including but not limited to applicable copyrights in all deliverables created hereunder by Customer shall belong to Customer. This Agreement does not grant Customer any license to any of Eco Creations products, which products must be licensed separately.
Customer (the “Indemnifying Party”) agrees to indemnify, defend and hold Eco Creations and its affiliates and their respective officers, directors, employees and agents harmless from and against any and all third-party claims, losses, liabilities, damages, expenses and costs, including attorney’s fees and court costs, arising out of the Indemnifying Party’s (a) negligence, gross negligence, or willful misconduct, or (b) its material breach of any of the terms of this Agreement. Eco Creations shall provide the Indemnifying Party with prompt written notice of any claim and give complete control of the defense and settlement of the Indemnifying Party, and shall cooperate with the Indemnifying Party, its insurance company and its legal counsel in its defense of such claim(s). This indemnity shall not cover any claim in which there is a failure to give the Indemnifying Party prompt notice to the extent such lack of notice prejudices the defense of the claim.
THIS SECTION STATES THE ENTIRE OBLIGATION AND THE EXCLUSIVE REMEDIES WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
Limitation of Liability; Actions.
IN NO EVENT SHALL ECO CREATIONS BE LIABLE UNDER THIS AGREEMENT TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DAMAGE TO PROPERTY, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. ECO CREATIONS’ ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO ECO CREATIONS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH ALLEGED LIABILITY. THIS SECTION SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.
NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.
Location of Services.
Customer acknowledges that the Services provided hereunder may be performed at various locations, including but not limited to: Canyon Lakes Clubhouse, The Oaks of Boca Raton, Olympia, and Canyon Isles.
Customer agrees to waive any damages or cause of action against Eco Creations that may result from the action(s) of a third party at such locations referenced in Section 9, above. Customer further agrees to waive any and all damages or causes of actions against Eco Creations that may result from a child’s injury, allergic reaction, or any such related incident.
Customer hereby waives all claims against Eco Creations LLC except for gross negligence or willful misconduct.
Term.This Agreement shall commence on the Effective Date and shall terminate upon completion of the Services selected in Section 2(a), or as set forth in the Termination provisions in Section 12 below.
Termination for Breach. Either Party may terminate this Agreement at any time in the event of a breach by the other Party of a material covenant, commitment or obligation under this Agreement that remains uncured: (i) in the event of a monetary breach, ten (10) calendar days following written notice thereof; and (ii) in the event of a non-monetary breach after thirty (30) days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
Termination for Convenience. Eco Creations may terminate this Agreement at any time with or without cause by giving thirty (30) days prior written notice.
Obligations upon Termination. Termination of this Agreement for any reason shall not discharge either Party’s liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Customer shall pay Eco Creations for all Services rendered prior to the effective date of termination.
Continuing Agreement. Customer further agrees that this Agreement shall continue and be binding on any and all further engagement by Eco Creations. In the event Customer purchases additional services in the future, this Agreement shall apply to said services unless a separate agreement has been executed by the Parties. To the extent that any such separate agreement does not cover an obligation stated herein, then this Agreement shall be considered a modification of any such Agreement whether entered prior to, contemporaneously with or after this Agreement is executed.
Relationship of the Parties. The relationship of the Parties hereto is that of consumer and service provider. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents.
Force Majeure. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, pandemics, epidemics or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of this Agreement, for so long as such force majeure event is in effect. Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within five (5) business days of its occurrence.
Dispute Resolution. If there is any dispute arising out of this Agreement, the Parties shall first attempt to resolve the dispute amicably before initiating any legal action. If there is no amicable resolution within thirty (30) days of either’s party’s first attempt to resolve the aforementioned dispute, the parties shall agree to participate in formal mediation conducted by a certified mediator. The Parties agree that they will meaningfully participate in mediation. If there is no resolution at mediation or mediation is not completed within 120 days after either party’s first attempt to resolve the dispute, the parties may proceed to litigation. Notwithstanding the foregoing, this section does not apply in disputes arising from violation of the Confidentiality and/or Non-Solicitation provisions of this Agreement. In these instances, the aggrieved party may immediately initiate any applicable legal action.
Governing Law and Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of Florida, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any litigation arising out of this Agreement will be brought solely in any state or federal court located in Palm Beach County, Florida. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court.
Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A JURY TRIAL IN CONNECTION WITH THIS AGREEMENT, THE TRANSACTION CONTEMPLATED UNDER THE AGREEMENT OR ANY COURSE OF DEALINGS OR ACTIONS BY THE PARTIES RELATING TO THIS AGREEMENT. THIS JURY TRIAL SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
Attorney’s Fees. If either Party incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, the prevailing Party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other Party.
Collection Expenses. If Eco Creations incurs any costs, expenses, or fees, including reasonable attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due it under this Agreement, Customer agrees to reimburse Eco Creations for all such costs, expenses and fees.
Assignment; No Third-Party Beneficiaries. Neither Party may assign this Agreement, either in whole or part, without the express written consent of the other Party. Any assignment without such consent shall be null and void. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors, assigns and legal representatives of the Parties. There are no third-party beneficiaries to this Agreement.
Severability. If any provision or portion of this Agreement shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
Headings; Construction. The headings/captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. This Agreement is the result of negotiations between the Parties and their counsel. Accordingly, this Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party.
Survival. Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either Party to this Agreement.
Rights Cumulative. The rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. An executed signature page delivered via facsimile transmission or electronic signature shall be deemed as effective as an original executed signature page.
Authorized Signatories. It is agreed and warranted by the Parties that the individuals singing this Agreement on behalf of the respective Parties are authorized to execute such an agreement. No further proof of authorization shall be required.
Notices. All notices or other communications required under this Agreement shall be in writing and shall be deemed effective when received and made in writing by either (a) hand delivery, (b) registered mail, (c) certified mail, return receipt requested, or (d) overnight mail, addressed to Eco Creations at an address as such Party shall specify by like notice.
No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.
Entire Agreement; Modification. This Agreement, and any documents referenced herein or attached hereto, is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the Parties, whether written, oral, electronic or otherwise. No change, modification, amendment, or addition of or to this Agreement or any part thereof shall be valid unless in writing and signed by authorized representatives of the Parties. Each Party hereto has received independent legal advice regarding this Agreement and their respective rights and obligations set forth herein. The Parties acknowledge and agree that they are not relying upon any representations or statements made by the other Party or the other Party’s employees, agents, representatives or attorneys regarding this Agreement, except to the extent such representations are expressly set forth in this Agreement.