PRODUCTS TERMS AND CONDITIONS
I. Products and Estimate
Section 1.1 Scope of Services. A detailed description of the Products that Anna Marie, LLC doing business as Anna Marie (“Anna Marie”) will be providing are detailed in Invoice associated with these Term and Conditions (the “Invoice”).
Section 1.2 Estimate. The amount estimated for the Products may be included with the Invoice. Any such Estimate is only valid for 30 days from the Invoice date.
II. Payments
Section 2.1 Early Termination. Almost all of the Products supplied by Anna Marie are special-order items and are not able to be returned to the supplier/vendor or re-sold. In the event that Client requests to terminate the Invoice before delivery of the Products, Client shall be responsible for the entire cost of all special-order items, all work performed through the date of termination, any out-of-pocket expenses incurred, any other reasonable costs and expenses incurred by Anna Marie.
Section 2.2 Payments Accepted. Anna Marie will accept personal or business checks and major credit cards for payments. For any payments made by credit card, the Client shall be responsible for any processing fee charged by the bank or financial institution (currently 2.75-3.75%).
III. Warranty
Section 3.1 Limited Warranty. Anna Marie warrants that the Products are free from defects due to noncompliance with the specification listed in the Invoice at the time the Products are delivered to the Client.
Section 3.2 Warranty Claims. Client shall notify Anna Marie of any defect within 5 days of date the Products are delivered to the Client. Client shall give Anna Marie the first opportunity to: (1) inspect the defect claimed, and (2) to effect the repair, replacement, or payment of reasonable sums to effect those repairs. Under no circumstances will Anna Marie be held liable by virtue of this warranty or otherwise, for damage to a person or property for whatever reason, whether direct, indirect, special, secondary, arising from the Products. Anna Marie provides cleaning and care suggestions for wallpapers and fabrics provided by the manufacturers of those materials. Anna Marie does not independently verify or endorse any of the cleaning and care suggestions provided.
IV. Consequential Damages, Limitation of Liability, and Indemnity
Section 4.1 Consequential Damages. Anna Marie will not be liable to Client for any special, incidental, indirect, consequential, exemplary, or punitive damages or losses, loss of profits or revenues, loss of opportunities, loss of goodwill or loss of capital (collectively “Consequential Loss”), with the exception of Consequential Loss caused by criminal acts, fraud, or willful misconduct.
Section 4.2 ANNA MARIE’S AGGREGATE LIABILITY TO CLIENT FOR ALL LOSS AND DAMAGE WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL IN ANY EVENT BE LIMITED TO THE SUM OF THE MONIES PAID TO ANNA MARIE BY CLIENT PURSUANT TO THE INVOICE.
Section 4.3 ANNA MARIE WILL NOT BE LIABLE FOR AND CLIENT WILL INDEMNIFY ANNA MARIE FOR ANY THIRD-PARTY CLAIM AGAINST ANNA MARIE OR CLIENT FOR DAMAGES INCURRED BY SUCH PERSON, DIRECTLY OR INDIRECTLY, AS A RESULT OF ANY ERROR OR OMISSION BY ANNA MARIE OR CLIENT RELATED DIRECTLY OR INDIRECTLY TO THE PROJECT OR THE PERFORMANCE OF SERVICES PURSUANT TO THE INVOICE, INCLUDING BUT NOT LIMITED TO CLAIMS OF INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS IN CONJUNCTION WITH THE INVOICE.
Section 4.4 ANNA MARIE NOT LIABLE FOR SHIPPING DAMAGES. Anna Marie shall not be liable for any damage to the Products that occurs during shipping. Any damage to Products during shipping is the responsibility of the client. Client may, at Client’s option, independently arrange for insurance against damage during shipping – Anna Marie does not and will not arrange for such insurance.
V. Force Majeure
Section 5.1 In the event that one Party (i.e., Anna Marie or the Client) cannot perform one or more of its obligations herein due to unanticipated acts of nature or unforeseeable events beyond its reasonable control, the effected Party shall immediately give notice to the other Party. Upon receipt of such notice, obligation of performance of such obligation(s) under these Terms and Conditions shall immediately be suspended for the duration of such act or event, and that Party shall not be liable for such delay in performance for the duration of such act or event provided the effected Party uses its best efforts to resume performance as soon as practicable.
V. Intellectual Property
Section 8.1 Copyright. The copyrights to designs created by Anna Marie are the sole property of Anna Marie. Client is not authorized to create derivative works of designs created by Anna Marie or the Products. Client is not authorized to sell or reproduce designs created by Anna Marie except for re-selling the Products. Anna Marie retains the sole right to distribute, disseminate, and otherwise create additional designs or goods based on the Products. Regardless of input from the Client, the Client will not be considered a co-author of any designs or products created by Anna Marie and any designs or products created pursuant to the Invoice will not be considered joint work or co-authored.
Section 8.2 No Work For Hire. The Products provided pursuant to the Invoice are not a work for hire and Anna Marie retains all intellectual property rights in any intellectual property created. Anna Marie and Client agree that payments made pursuant to the Invoice and these Terms and Conditions are for the Products and do not compensate the Anna Marie for any “work for hire.”
VI. General Provisions
Section 6.1 Choice of Law and Venue. The Invoice and these Terms and Conditions shall in all respects be governed by and construed in accordance with the laws of the State of Texas, U.S.A., without giving effect to its rules on conflicts of laws. Client expressly consents to the jurisdiction of the state and federal courts of Texas. Client further agrees that the exclusive venue for the resolution of any dispute related to the Invoice or these Terms and Conditions will be in the state and federal courts located in Harris County, Texas.
Section 6.2 Entire Agreement and Modification. The Invoice and these Terms and Conditions supersedes all prior agreements between Anna Marie and the Client the Parties with respect to the Invoice and constitutes a complete and exclusive statement of the terms of the agreement between the Parties with respect to its subject matter. These Terms and Conditions may not be amended except by a written agreement executed by Anna Marie and the Client.
Section 6.3 Assignments; Successors, and No Third-Party Rights. The Invoice and these Terms and Conditions and all of their provisions and conditions are for the sole and exclusive benefit of the Anna Marie and the Client and each of their successors and assigns.
Section 6.4 Severability. If any provision of these Terms and Conditions are held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Terms and Conditions will remain in full force and effect. Any provision of these Terms and Conditions held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
Section 6.5 Attorney Fees. In the event that Anna Marie is required to engage counsel to enforce these Terms and Conditions or related to the Invoice or litigation is initiated related to the Invoice or these Terms and Conditions, Anna Marie shall be entitled to receive its reasonable attorneys’ fees and costs from the Client.
Section 6.7 Relationship of the Parties. Anna Marie is an independent contractor as to all activities contemplated under the Invoice. Nothing in the Invoice or these Terms and Conditions shall be construed or interpreted to create a partnership, employment, or joint venture.