Terms of service
THIS TERMS OF SERVICE AGREEMENT (“Agreement”) is entered into between Square One Films, LLC d/b/a Studio Upgrade ("Studio Upgrade"), a Minnesota Limited Liability Company and any person (“Client”) who orders Services or Deliverables from Studio Upgrade via Studio Upgrade’s website.
BY CLICKING THE ACCEPTANCE BUTTON OR ORDERING, PURCHASING OR USING ANY PART OF THE SERVICE OR DELIVERABLES, CLIENT EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF CLIENT DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED. UPTOP WILL PROMPTLY CANCEL THIS TRANSACTION AND CLIENT MAY NOT PURCHASE OR USE ANY PART OF THE SERVICES OR DELIVERABLES.
1. Services and Deliverables to be Provided by Studio Upgrade.
This Agreement, along with your purchase order, sets forth the terms and conditions for the assembly and consulting services (“Services”) and describes the deliverables (the “Deliverables”) to be provided to Client (collectively the “Project”).
This Agreement is limited to the Project identified in your purchase order and this agreement.
2. Material Warranties.
Studio Upgrade shall purchase all materials and parts necessary to provide the Deliverables (“Materials”).
Client specifically agrees and understands that the Services and the incorporation of the Materials into the Deliverables may void any manufacturer warranties that may exist in the Materials prior to incorporation into the Deliverables. Client further understands and agrees that Studio Upgrade makes no warranties or guarantees related to the Materials beyond those offered by the manufacturer of the Materials which, as stated above, may be void.
3. Fees and Payment Terms. Client agrees to pay Studio Upgrade all fees identified in the purchase order and this Agreement. The Parties agree that Studio Upgrade will perform the Services and provide the Deliverables and that Client will pay Studio Upgrade as described in this agreement and the purchase order.
The total fee for the Project shall be the fee as listed on the purchase order (the “Project Fee”). Upon acceptance of this Agreement, Client will pay the Project Fee/Studio Upgrade a non-refundable and non-transferable initial payment equal to one third (1/3) of the Project Fee (the “Fee Deposit”). Studio Upgrade shall not be obligated to start working on the Project until the Project FeeFee Deposit is paid by Client.
Upon completion of the assembly of the Deliverables, Studio Upgrade will invoice client for the remaining balance of the Project Fee less the Fee Deposit (“Balance Fee”).
Client shall be responsible for payment of all shipping and handling fees, which will be invoiced to Client by Studio Upgrade, if not included in the initial invoice (“Shipping Fees”).
Client shall pay Studio Upgrade for consulting time requested by Client beyond that included in the purchase order (“Consulting Time”). Consulting time shall be billed at a rate of $380 per hour, which will be rounded to the nearest one quarter of an hour. Studio Upgrade will invoice Client for any Consulting Time incurred. Payment for fees shall be due within thirty (30) days of sending the invoice to Client.
4. Term and Termination.
The term of this Agreement shall commence on the date Client assents to this agreement and pays the Project FeeFee Deposit, and shall end upon Studio Upgrade’s completion and delivery of the Project. Notwithstanding, the terms of this agreement shall continue in force related to any additional consulting services requested by Client.
The Agreement can be terminated by Client at any time by providing notice, as provided for herein, of the intent to Terminate to Studio Upgrade.
Effect of Termination Prior to Assembly: If Client terminates this Agreement prior to completion of assembly of the Project, Studio Upgrade shall refund any amounts paid by Client, less any Shipping Fees incurred by Studio Upgrade in returning the Materials, if applicable.
Effect of Termination After Assembly: If Client terminates this Agreement after the start of assembly of the Project, Studio Upgrade shall retain ten percent (10%) of the Project Fee.
The rights and obligations of the parties under Sections 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 shall survive.
5. Client Representations and Warranties. Client represents and warrants as follows:
Client has the authority to enter into and perform all the terms of this Agreement, and Client is under no disability, restriction or prohibition, whether contractual or otherwise, with respect to Client's right to assent to assent to this Agreement.
Client, and the individual assenting to this agreement on its behalf, expressly warrants that they have the right, power, legal capacity, and authority to enter into this Agreement on behalf of Client and to bind Client.
6. Representations and Warranties. Studio Upgrade represents and warrants as follows:
Studio Upgrade shall provide the Services hereunder with reasonable care and skill and at a standard reasonably consistent with generally accepted industry standards.
Save as expressly provided in this Agreement, no warranty of any other kind is given in conjunction with the Agreement. To the fullest extent permissible by law, any condition or warranty which would otherwise be implied in the Agreement, including any quality or fitness for any particular purpose, are hereby excluded.
Studio Upgrade has the authority to enter into and perform all the terms of this Agreement, and Studio Upgrade is under no disability, restriction or prohibition, whether contractual or otherwise, with respect to Studio Upgrade's right to execute this Agreement and to grant the rights granted by Studio Upgrade to Client hereunder.
Studio Upgrade expressly warrants that it has the right, power, legal capacity, and authority to enter into this Agreement on behalf of Studio Upgrade and to bind Studio Upgrade.
7. Relationship of the Parties. This Agreement shall not render Studio Upgrade an employee, partner, agent of, or joint-venturer of Client for any purpose. Studio Upgrade is, and will remain, an independent contractor in its relationship to Client. Client shall not deduct income, Social Security, unemployment or any other withholding taxes with respect to Studio Upgrade’s compensation hereunder. Studio Upgrade shall have no claim against Client hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. Studio Upgrade further agrees that Studio Upgrade is solely responsible for payment of any such taxes due to the proper taxing authorities. Studio Upgrade shall indemnify and hold the Client harmless from any assessments of such taxes and any interest and penalties imposed upon the Client by reasons of Studio Upgrade's failure to pay such taxes.
8. Limitation of Liability. The total liability of Studio Upgrade on all claims of any kind, whether in contract, tort (including negligence), strict liability or otherwise or indemnity claims arising out of the performance or breach of this agreement or use of the Materials and/or Deliverables or the performance of the services shall not exceed the payment received by Studio Upgrade from client for such Materials and/or the Deliverables at the time liability arose. Studio Upgrade shall not be liable for any damages caused to Client’s computer hardware or software caused by use of the Deliverables by Client. Studio Upgrade shall not be liable for any damages caused by the failure or defect of the Materials.
9. No Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES ARISING FROM BREACH OF WARRANTY, INDEMNIFICATIONS, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER KIND OF CIVIL LIABILITY EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. General Provisions.
No Guarantee. Studio Upgrade agrees to provide professional work, but can offer no guarantee of any particular result.
No Exclusivity. The Parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Studio Upgrade, and Studio Upgrade shall be entitled to offer and provide services to others, solicit other clients and otherwise advertise services offered by Studio Upgrade.
Choice of Law. This Agreement is governed by the laws of the state of Minnesota. Any lawsuits between the parties shall be venued in Minneapolis, Minnesota.
Attorney Fees. In any lawsuit between Client and Studio Upgrade, each side shall be responsible for its own attorneys’ fees and costs, except as expressly provided for herein.
Assignments Require Written Consent. Neither Studio Upgrade nor Client may assign its rights or delegate its duties under this Agreement to any third party without the prior written consent of the other Party.
Entire Agreement. This Agreement, along with any invoices or order forms, are the entire Agreement between the Parties and supersedes all other communications or agreements between the Parties.
Severability. If any term of this Agreement is found to be invalid or unenforceable, all other terms of the Agreement will remain effective.
Waiver. If either Party allows any breach or default under the agreement, that doesn’t mean it consents to any later breach or default.
Force Majeure. Neither Party will be liable to the other for failure to perform its obligations under this Agreement if such failure to perform results from causes beyond its control, including and without limitation: strikes, lockouts, shipping, manufacturing or other industrial disturbances; civil disturbances; fires; acts of God; acts of a public enemy; compliance with any regulations, order, or requirement of any governmental body or agency; or inability to obtain transportation or necessary materials in the open market.
Independent Counsel. Each of the Parties have been represented by independent legal counsel or afforded the opportunity of representation by independent legal counsel.
Interpretation. In the event of any ambiguity or mistake herein, this Agreement shall not be construed unfavorably toward a party on the ground that the party or its legal counsel was the drafter thereof.
Headings. Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof. All headings herein are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provision of this Agreement.
Counterparts. This Agreement may be executed by the parties in any number of counterparts, each of which shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf" format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page were an original thereof.
11. Notice. All notices, elections, payments or other communications to be sent to the parties hereto shall be addressed and sent by either email or U.S. certified or registered mail, return receipt requested, postage prepaid along with a copy sent via email (if sent via regular mail) to the Client at the contact points provided by client to Studio Upgrade, and to Studio Upgrade at the addresses as follows:
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Studio Upgrade: |
Studio Upgrade PO Box 513 Champlin, MN 55316 hello@uptopfilms.com |
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COPY TO: |
Maxwell Felsheim Eastlake Legal Minneapolis, MN 55406 max@elakelegal.com |
Notice shall be deemed delivered upon receipt.