Terms and Conditions of Use | The Hemmingbird LLC

THE HEMMINGBIRD LLC

GENERAL TERMS AND CONDITIONS FOR SERVICES

Applicability.
1. These terms and conditions for services (these "Terms") are the only terms that govern the provision of services by The Hemmingbird LLC ("The Hemmingbird") to Customer ("Customer").
2. The accompanying order confirmation and/or Invoice and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Invoice, these Terms shall govern, unless the Invoice expressly states that the terms and conditions of the Invoice shall control.
3. These Terms prevail over any of Customer's general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms.
Services. The Hemmingbird shall provide the services to Customer as described in the Invoice (the "Services") in accordance with these Terms.
Performance Dates. The Hemmingbird shall use reasonable efforts to meet any performance dates specified in the Invoice, and any such dates shall be estimates only.
Customer's Obligations. Customer shall:

cooperate with The Hemmingbird in all matters relating to the Services and provide such access to Customer's premises as may reasonably be requested by The Hemmingbird, for the purposes of performing the Services, , including, but not limited to, a safe and secure work environment, void of injury and damages, at the site of the Services and unobstructed access to the site of the Services.
respond promptly to any The Hemmingbird request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for The Hemmingbird to perform Services in accordance with the requirements of this Agreement;
provide such Customer materials or information as The Hemmingbird may request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and
obtain and maintain all necessary consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

Customer's Acts or Omissions. If The Hemmingbird's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, The Hemmingbird shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
Change Orders.
1. If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. The Hemmingbird shall, within a reasonable time after such request, provide a written estimate to Customer of:
  1. the likely time required to implement the change;
  2. any necessary variations to the fees and other charges for the Services arising from the change;
  3. the likely effect of the change on the Services; and
  4. any other impact the change might have on the performance of this Agreement.
2. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a "Change Order"). Both parties shall be bound by any Change Order when Customer accepts the Change Order by making payment on the associated Invoice.
3. Notwithstanding Section 6(a) and Section 6(b), The Hemmingbird may, from time to time change the Services without the consent of Customer.
4. The Hemmingbird may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Invoice.
Fees and Expenses.
1. In consideration of the provision of the Services by The Hemmingbird and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Invoice.
2. Standard fees for Services are listed on The Hemmingbird website at https://www.hemmingbirdalterations.com/terms-and-conditions-1.
3. All fees are nonrefundable.
4. Customer agrees to reimburse The Hemmingbird for all reasonable travel and out-of-pocket expenses incurred by The Hemmingbird in connection with the performance of the Services.
5. Customer agrees to pay additional fees for any expedited services.
Payment Terms and Late Payments.
1. Customer shall timely pay all fees due to The Hemmingbird as required upon booking and/or upon delivery of Services.
2. Customer shall make all payments hereunder in US dollars by cash, check or a payment processing system as selected by The Hemmingbird.
3. In the event payments are not received by The Hemmingbird after becoming due, The Hemmingbird may:
  1. charge interest on any such unpaid amounts at a rate of 2.5% per month or, the maximum amount permitted under applicable law, from the date such payment was due until the date paid;
  2. charge a late fee in the amount of $25.00 per month, from the date such payment was due until the date paid;
  3. suspend performance for all Services until payment has been made in full;
  4. retain personal property associated with Services until Customer makes all payments in full.
Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
Cancellation. Subject to Sections 7 and 8, Customer may cancel its order for Services at any time. The Hemmingbird may cancel in whole or in part any order this Agreement
Photography. Customer grants The Hemmingbird permission to take photographs during consultation, or other performance of Services and authorizes The Hemmingbird and its assigns and transferees to use and to copyright Customer’s property, and Customer’s likeness with advance permission, in print and/or electronically in a photograph, video, or other digital media (“Photos”) in any and all of its publications, illustrations, and advertising, including social media and other web-based publications. Customer understands and agrees that all Photos will become the property of The Hemmingbird and may not be returned. Customer irrevocably authorizes The Hemmingbird to edit, alter, copy, exhibit, publish, or distribute these Photos for any lawful purpose for which Customer waives any right to inspect or approve the publication wherein Customer’s likeness appears. Customer understands that no payment, royalty, fee or other compensation shall become payable to Customer by use of the Photos. Customer affirms the consent of parent or guardian if necessary.
Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of The Hemmingbird in the course of performing the Services, including any items identified as such in the Invoice (collectively, the "Deliverables") except for any Confidential Information of Customer or Customer materials shall be owned exclusively by The Hemmingbird. The Hemmingbird hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis, solely to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
Confidential Information.
1. All non-public, confidential or proprietary information of The Hemmingbird, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, "Confidential Information"), disclosed by The Hemmingbird to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of The Hemmingbird.
2. Customer agrees to use the Confidential Information only to make use of the Services and Deliverables.
3. The Hemmingbird shall be entitled to injunctive relief for any violation of this Section.
Representation and Warranty.
1. The Hemmingbird represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
2. The Hemmingbird shall not be liable for a breach of the warranty set forth in Section 14(a) unless Customer gives written notice of the defective Services, reasonably described, to The Hemmingbird within 48 hours days of the time of delivery by The Hemmingbird.
3. Subject to Section 14(b), The Hemmingbird shall, in its sole discretion, consider available remedies; provided however, The Hemmingbird is not obligated to provide to the customer any: refund, credit, repair nor re-perform Services.
4. THE REMEDIES SET FORTH IN SECTION 14(c) SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND THE HEMMINGBIRD'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 14(a).
Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 14(a), THE HEMMINGBIRD MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
Limitation of Liability.
1. IN NO EVENT SHALL THE HEMMINGBIRD BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE HEMMINGBIRD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. IN NO EVENT SHALL THE HEMMINGBIRD'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 AGGREGATE AMOUNTS PAID OR PAYABLE TO THE HEMMINGBIRD PURSUANT TO THE APPLICABLE INVOICE.
Indemnification. Customer will indemnify, defend and hold harmless The Hemmingbird, its members, officers, directors, employees, agents and representatives from and against all losses, damages, liabilities, costs, and expenses including, without limitation, property damage, loss of profits or revenue, loss of use of any property, cost of capital, personal or bodily injury, or death (“Losses”), that may arise pursuant to or in connection with the Agreement or the Services, regardless of whether such Losses are suffered directly by Customer or arise pursuant to or in connection with a third-party suit, claim, counterclaim, demand, judgment or other action (each a “Claim”) and regardless of whether or not The Hemmingbird or any third-party is proportionately negligent with respect to such Losses and/or Claim, provided that Customer need not indemnify The Hemmingbird for The Hemmingbird’s obligation, if any, to Customer under the remedies described herein. For the avoidance of doubt and without limitation, this indemnification obligation requires Customer to pay any judgments against The Hemmingbird or any other indemnified party resulting from any Claim, any court costs of The Hemmingbird or any other indemnified party in connection with any Claim, and any reasonable attorneys’ fees and disbursements incurred by The Hemmingbird or any other indemnified party in The Hemmingbird’s defense of any Claim. The Hemmingbird will have the sole and exclusive right to conduct the defense of any Claim at Customer’s sole and exclusive cost and expense. Customer’s indemnification obligation does not depend on the truth or accuracy of any allegations made against The Hemmingbird, Customer or any third party.
Termination. In addition to any remedies that may be provided under this Agreement, The Hemmingbird may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:
1. fails to pay any amount when due under this Agreement and such failure continues for 10 days after Customer's receipt of written notice of nonpayment; or
2. has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part.
Insurance. During the term of this Agreement and for a period of one year thereafter, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, homeowners’ policy with guest coverage in a sum no less than $250,000 with financially sound and reputable insurers. Upon The Hemmingbird's request, Customer shall provide The Hemmingbird with a certificate of insurance from Customer's insurer evidencing the insurance coverage specified in these Terms. Customer shall provide The Hemmingbird with 30 days' advance written notice in the event of a cancellation or material change in Customer's insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against The Hemmingbird's insurers and The Hemmingbird.
Non-Disparagement. The Hemmingbird and Customer agree that neither shall directly or indirectly, make or cause to be made any disparaging, denigrating, derogatory or negative, misleading or false statement orally or in writing to any person, including Customers or prospective Customers, competitors and advisors to the Customer, its Affiliates or members of the investment community or press, about the other party, its Affiliates or their respective officers, directors, stockholders, managers, members, partners, employees or agents. Customer agrees that The Hemmingbird may make mention that The Hemmingbird provides the Services to Customer on The Hemmingbird’s website, social media other promotional materials.
Waiver. No waiver by The Hemmingbird of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by The Hemmingbird. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): ( acts of God; ( flood, fire, earthquake, or explosion; ( war, invasion, hostilities, terrorist threats or acts, riot or other civil unrest; ( government order, law, or action; ( embargoes or blockades in effect on or after the date of this Agreement; ( national or regional emergency; ( strikes, labor stoppages or slowdowns or other industrial disturbances; ( telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and ( other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 30 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 30 days following written notice given by it under this Section, either party may thereafter terminate this Agreement upon 30 days' written notice.
Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of The Hemmingbird. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
Relationship of the 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.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania.
Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the Commonwealth of Pennsylvania in each case located in the City of Pittsburgh and County of Allegheny, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Mediation. The Hemmingbird and Customer will attempt to resolve any dispute in connection with this Agreement on an amicable basis through prompt, good faith discussions and non-binding mediation.
Arbitration. Any dispute that cannot be resolved by The Hemmingbird and Customer will be determined by final and binding arbitration in Pittsburgh, Pennsylvania, before a sole arbitrator who will award attorneys’ fees and other costs to the substantially prevailing party. JAMS will administer the arbitration. The arbitration award will be in writing and will specify the factual and legal bases for the award. Judgment on the award may be entered in any court having jurisdiction. Notwithstanding anything in this Agreement to the contrary, if either The Hemmingbird or Customer initiates arbitration before mediation, that party will be responsible for the other party’s attorneys’ fees and costs of arbitration.
Electronic Consent. Customer acknowledges that Customer’s electronic submissions constitute Customer’s agreement and intent to be bound by the Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act"), the Pennsylvania Electronic Transactions Act, or other similar statutes, CUSTOMER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, APPLICATIONS AND OTHER RECORDS AND ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED WITH THE HEMMINGBIRD. Further, Customer hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. Customer may obtain a copy of the Agreement and these Terms and Conditions of Service by printing them now at no additional cost to Customer or by contacting The Hemmingbird.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law, Insurance, Submission to Jurisdiction, and Survival.
Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.

08/29/2023