AMERICAN RADON MITIGATION, INC. SERVICE AGREEMENT
THIS AGREEMENT (“Agreement”) is executed as of the date set forth below by and between the party whose name and address appears at the end of this Agreement (“OWNER”), and American Radon Mitigation, Inc., a Minnesota corporation with a mailing address of 1833 19th Street NW, New Brighton, MN 55112 (“ARM”).
WHEREAS, ARM agrees to provide the consulting services set forth; and
WHEREAS, OWNER desires to engage ARM to provide the Services in accordance with the terms and conditions set forth below at the rates set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt, value and sufficiency of which is hereby acknowledged, and in consideration of the representations, warranties, and covenants, the parties agree as set forth below.
1. RENT. Subject to the terms and conditions set forth herein, OWNER hereby engages ARM to provide the Services.
2. PAYMENT. OWNER shall pay ARM for the Services at ARM’s standard rate payable in advance. Further, OWNER agrees to pay any and all taxes related to or arising out of ARM’s provision of the Services, including but not limited to any sales or use tax, as well as all other costs and expenses as set forth herein.
3. OWNER’S OBLIGATIONS. OWNER shall:
a. Cooperate with ARM’s reasonable requests in providing the Services.
4. OWNER ACCEPTANCE OF AGREEMENT. ACCEPTANCE BY ARM OF OWNER’S REQUEST FOR SERVICES OR OWNER’S ACCEPTANCE OF ARM’S PROPOSAL OR AGREEMENT IS EXPRESSLY LIMITED TO AND CONDITIONED UPON OWNER’S ACCEPTANCE OF AND ASSENT TO THIS AGREEMENT AND THE TERMS AND CONDITIONS AND THOSE REFERRED TO HEREIN. ANY TERMS OR CONDITIONS OTHER THAN THOSE STATED HEREIN, WHETHER CONTAINED IN OWNER’S E-MAIL OR ELSEWHERE, WHETHER WRITTEN OR ORAL, AT ANY TIME, WHETHER BEFORE OR AFTER THE DATE OF THIS AGREEMENT, THAT PURPORT TO VARY THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE HEREBY EXPRESSLY REJECTED BY ARM. OWNER ACKNOWLEDGES THAT, NOTWITHSTANDING ANY OTHER PROVISIONS CONTAINED IN ANY OTHER DOCUMENTS TO THE CONTRARY, THE RECEIPT AND ACCEPTANCE BY OWNER OF ARM’S SERVICES SHALL CONSTITUTE ACCEPTANCE BY OWNER OF THIS AGREEMENT AND THE HEREIN TERMS AND CONDITIONS. ALL NEGOTIATIONS, PROPOSALS AND REPRESENTATIONS ARE MERGED HEREIN. THIS WRITING CONSTITUTES THE COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS AND CONDITIONS OF THIS AGREEMENT BETWEEN OWNER AND ARM. OWNER ACKNOWLEDGES THAT OWNER IS NOT RELYING ON ANY REPRESENTATION OR PROMISE OF ARM THAT IS NOT SET FORTH IN THESE TERMS AND CONDITIONS. IN THE EVENT OWNER FAILS TO ACCEPT THESE TERMS AND CONDITIONS IN WRITING, OWNER’S CONSENT TO THE TERMS AND CONDITIONS HEREIN IS CONCLUSIVELY PRESUMED, EITHER FROM OWNER’S FAILURE TO OBJECT WITHIN TEN DAYS IN WRITING OR FROM OWNER’S ACCEPTANCE OF ARM’S SERVICES DELIVERED HEREUNDER. UNLESS OWNER NOTIFIES ARM IN WRITING TO THE CONTRARY PRIOR TO ARM PROVIDING THE SERVICES, OWNER HEREBY REPRESENTS AND WARRANTS THAT ANY EMPLOYEE OR AGENT ACTION ON OWNER’S BEHALF IS AUTHORIZED BY OWNER AND ARM MAY RELY UPON SUCH REPRESENTATION. THIS AGREEMENT SHALL TAKE PRECEDENCE OVER ANY CONFLICTING TERMS AND CONDITIONS CONTAINED IN ANY ARM ADVERTISING MATERIAL.
5. ENTIRE AGREEMENT. The entire agreement between ARM and OWNER with respect to the Services is embodied solely within this Agreement, which supersedes all prior agreements, understandings, representations or warranties, whether oral or written, between ARM and OWNER relating to such Services. No statement, recommendation or assistance made or offered by ARM through its representatives in connection with suitability, capacity, performance or compliance with OWNER’s specification of the Services shall be or constitute a waiver by ARM of any provision hereof. No statements subsequent to the acceptance of the Agreement and these terms and conditions shall be binding upon ARM, nor shall the Agreement or such terms or conditions be amended or modified, unless consented to in writing by ARM’s president in a document referencing these terms and conditions.
6. INTENTIONALLY RESERVED.
7. INTENTIONALLY RESERVED.
8. RIGHT TO SUSPEND DELIVERY. Without prejudice to any other rights, ARM may suspend further deliveries of any Services if OWNER defaults in payment of any amounts due, or whenever ARM may deem itself insecure as to OWNER’s performance, until OWNER remedies such default or provides assurance that satisfies ARM in its sole discretion of OWNER’s ability to perform. Further, ARM reserves the right to discontinue, without liability hereunder, deliveries of any Services which in the opinion of ARM would infringe any patent now or hereafter issued, or other intellectual property right under which ARM is not licensed.
9. TAXES. OWNER agrees that in the event ARM is required to pay sales, transaction privilege, or use taxes to the taxing authority of any federal, state or political subdivision thereof in connection with any rental of Services to OWNER and/or for the processing, delivery, or transportation thereof, OWNER will, upon demand, reimburse, indemnify and hold harmless ARM for the amount of any such tax paid, and for the amount of all costs or attorneys’ fees incurred by ARM in contesting or collecting such tax.
10. CONDITIONS BEYOND ARM CONTROL. ARM is not responsible for any delay caused in whole or in part by circumstances beyond ARM’s reasonable control, including but not limited to, force majeure, fires or accidents; strikes or other differences with workers; war (whether declared or undeclared), riots or embargoes; delays by carriers; delays in shipment or receipt of materials from suppliers; or any legislative, administrative or executive law, rental or requisition of the federal or any state or local government or any subdivision, department, agency, officer or official thereof. ARM is not liable in any event for any damages (whether direct, general, special, incidental, consequential or other) caused by ARM’s failure or delay in performance or delivery, if ARM is unable, due to any cause beyond ARM’s control, to supply OWNER’s total demand for Services.
11. SERVICES AS-IS. OWNER acknowledges that ARM has not and will not inspect OWNER’s premises for the suitability of the Services provided by OWNER from ARM. By requesting ARM to provide the Services to OWNER, OWNER acknowledges and agrees that OWNER selected the Services based upon OWNER’s own due diligence and judgment and that OWNER accepts the Services as-is.
12. DISCLAIMER OF WARRANTIES. ARM DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY REGARDING THE SERVICES. THIS DISCLAIMER APPLIES TO ANY LIABILITY FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES TO ANY PERSON HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) INCLUDING WITHOUT LIMITATION DAMAGES FOR INJURY TO PERSON (INCLUDING DEATH) OR PROPERTY, LOST PROFITS OR REVENUE, LOST SALES OR LOSS OF USE OF ANY PRODUCT ARISING IN ANY WAY OUT OF THE SERVICES. CONSTRUCTION OF THE DISCLAIMERS ABOVE AND RESOLUTION OF DISPUTES THEREOF ARE SUBJECT TO THE LAWS OF THE STATE OF MINNESOTA.
a. OWNER agrees to indemnify and hold harmless ARM from and against any and all claims, demands, actions, causes of action, costs and expenses arising out of or in connection with, in whole or in part, any act(s) or omission(s), negligent or otherwise, of OWNER, or any of OWNER’s family members, invitees, guests, agents, servants, employees, or subcontractors, including but not limited to: (a) claims of personal injury, including death, to any person or persons (whether family members, invitees, guests, third parties or agents, servants or employees of OWNER); (ii) claims of loss of any property, real or personal (whether belonging to ARM, OWNER or to a third party); and (iii) any and all other damages recognized at law or in equity under any theory whatsoever.
b. This indemnity includes, but is not limited to, any reasonable attorney’s fees or other reasonable legal fees incurred by ARM and associated with the foregoing.
c. This indemnity provision is a material term to the Agreement. OWNER’s duty to indemnify is a condition to the provision of Services from ARM to OWNER. OWNER has read the indemnity provision in its entirety, understands each and every part of the provision and acknowledges that there is no ambiguity concerning OWNER’s duty to indemnify.
d. In the event that the applicable law prohibits enforcement of this clause as written, then and only then, this clause will be modified to provide the maximum indemnification to ARM, as indemnitee, allowable under that applicable law.
14. GOVERNING LAW AND VENUE. Any dispute concerning the validity, interpretation, or performance of this Agreement and any of its terms or provisions, including any dispute over whether a provision of this Agreement has been breached, or of any rights or obligations of the parties hereto, shall be governed by and resolved in accordance with the laws of the State of Minnesota without reference to principles of conflicts of laws. Any action at law or in equity arising from or related to this Agreement or the Services shall be filed only in the state and federal court in the State of Minnesota and jurisdiction is hereby conferred upon such courts. Each party agrees to and consents to submit to the exclusive jurisdiction, venue and process of said courts for all actions, suits or proceedings arising out of or related to this Agreement. OWNER WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY REGARDING ANY AND ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT. The Agreement contains the full, final and exclusive statement of the Agreement between ARM and OWNER, and no terms and conditions other than those stated herein, and no agreement or understanding in any way purporting to modify the terms and conditions thereof, will be binding on ARM without ARM’s written consent. Waiver by ARM of any terms or conditions of this Agreement or waiver of any breach thereof will not be construed as a waiver of any other terms, conditions, or breach. Determination that any provision of the Agreement is illegal or invalid will not affect the validity or enforceability of the remaining provisions of the Agreement.
15. NO WAIVER; SEVERABILITY. Neither the failure by ARM to enforce any rights under or to insist upon strict performance of any provision in the Agreement shall constitute a waiver of any breach or a waiver of such provision, irrespective of the length of time for which such failure continues. Determination that any provision of this Agreement is illegal or invalid shall not affect the validity or enforceability of the remaining provisions of this Agreement. In the event that any provision of this Agreement, or any portion thereof, is deemed invalid by any court of competent jurisdiction, such provision shall be deemed to be modified to the extent necessary to allow it to be enforced under applicable law and all remaining provisions of this Agreement shall remain in full force and effect.
16. NO ALLOWANCE. No allowance will be made for any rented Services or portion thereof which is claimed not to have been used.
a. Attorney’s Fees and Costs. OWNER shall pay all reasonable attorney’s fees and costs incurred by ARM in protecting its rights under this Agreement and for any action taken by ARM to collect any amounts due ARM or enforcing its rights hereunder.
b. Successors and Assigns. This Agreement shall apply to, inure to the benefit of, and be binding upon and enforceable against the parties hereto and their respective successors and assigns.
c. Paragraph Headings. The headings inserted at the beginning of each paragraph are for convenience of reference only and shall not limit or otherwise affect or be used in the construction of any of the terms or provisions hereof.
d. Entire Agreement; Incorporation of Recitals. This Agreement contains all of the agreements, terms, covenants, conditions, warranties, and representations made or entered into by and between the parties, and supersedes all prior discussions and agreements, whether written or oral, between the parties and constitutes the sole and entire agreement between the parties with respect thereto. This Agreement may not be modified or amended unless such modification or amendment is set forth in writing and executed by all parties hereto. The recitals first set forth above are incorporated by reference as if fully set forth herein.