This ONLINE INTERIOR DESIGN SERVICES AGREEMENT (hereinafter referred to as “Agreement”) is made effective as of DATE (hereinafter referred to as the “Effective Date”), by and between CLIENT, with a principal address located at ADDRESS (hereinafter referred to as “Client”), and SANDRA FUNK LEVY, LLC D/B/A HOUSE OF FUNK, a New Jersey limited liability company, with a principal business address located at 573 Bloomfield Ave, 2nd Floor, Montclair, New Jersey 07042 (hereinafter referred to as “HOF”) (collectively referred to as “Parties”).
WHEREAS, HOF is engaged in the business of providing interior design services; and
WHEREAS, CLIENT desires to engage the ONLINE interior design services of HOF for an interior design project located at PROJECT ADDRESS (hereinafter referred to as “Project” and defined further in Paragraph 1 and Exhibit “A” below); and
WHEREAS, in furtherance of the above, CLIENT hereby agrees to and does hereby engage the services of HOF, and HOF hereby accepts the engagement to design and to do the work hereinafter specified by CLIENT in connection with the Project.
NOW THEREFORE, for the reasons set forth above, and in consideration of the mutual covenants of the Parties hereto, CLIENT and HOF hereby agree as follows:
1. PROJECT SCOPE and INITIAL BUDGET
For purposes of this Agreement, the Project Scope and Initial Budget shall be as set forth and described by HOF and the CLIENT in Section 2. Description of Services. HOF and CLIENT shall set forth in detail and agree on the scope of the work to be performed in connection with the Project and the Initial Budget to be considered by HOF for said Project.
2. DESCRIPTION OF SERVICES AND TIMELINE
HOF will provide to CLIENT the following services (collectively referred to as the “Design Services”) in connection with the Project. HOF observes all major holidays and grants employees vacation time. Those aforementioned days off may push back a predetermined timeline, but that will be communicated by HOF to CLIENT as far in advance as possible.
(A) Pre-Design Phase Services
CLIENT shall complete the following tasks for HOF to start the Detailed Design Phase as set forth in Paragraph 2 B below:
- Take measurements and photos, and document any items that will be staying in the space.
- Create inspiration board(s) on Pinterest to communicate what CLIENT envisions for the Project. Send HOF pictures of furnishings CLIENT plans to keep and the room as is, along with Pinterest boards, and any other inspiration images.
- Sign this Agreement.
- Pay for the Design Services.
(B) Detailed Design Phase Services Over a period of approximately six (6) weeks, HOF shall perform the following Design Services (Upon execution of this Agreement, and HOF’s receipt of the design fee payment as set forth in Paragraph 3 (A) below):
- Conduct an initial design study of existing site conditions, as provided by the CLIENT
- Review the CLIENT’S design preferences via inspiration board(s) and pictures sent
- Select each item according to design direction, budget, and floor plan(s).
- Prepare drawings, design boards and other material to generally illustrate HOF’s design concepts, including color schemes and interior finishes
- Create the customized shopping list for recommended furnishings
The above Services will culminate in HOF presenting the following deliverables to the CLIENT:
A Detailed Design Pack via email, where HOF will showcase for the CLIENT the summary of the design components, which include:
- Inspiration board(s)
- Floor plan(s), elevation(s), and relevant custom drawings
- Customized shopping list
Subject to a review and refinement process, consisting of one (1) revision during this phase, of the above deliverables, HOF and CLIENT will confirm the design direction, layout and Budget of the Project. The one (1) allowed revision will add time onto this phase depending on the scale of the revision.
(C) Purchasing Phase(if applicable):
In the instance that HOF recommends merchandise that must be purchased through HOF, it will be specified with a written proposal and submitted to the CLIENT for approval and full payment before ordering. During the Purchase Phase, HOF shall perform the following Design Services for the CLIENT:
Placing Orders & Assessing Delivery Times
- Complete the purchasing of goods on CLIENT’s behalf
- Clarify and communicate estimated delivery times
- Manage open orders by efficiently tracking goods
Identify & Resolve Deficiencies
- Identify and resolve all deficiencies identified within three (3) days of delivery of goods.
If more work is required, then the ONLINE design agreement will need to be switched over to the Full Interior Design Agreement and the appropriate costs will be billed accordingly.
3. PAYMENT FOR HOF DESIGN SERVICES
All payments shall be made by CLIENT to HOF, 573 Bloomfield Ave, 2nd Floor, Montclair, New Jersey 07042.
Client agrees to pay HOF as follows:
(A) Flat Design Fee Per Room. A flat design fee of $2,500.00 per room is charged, covering all work by HOF for the Detailed Design Phase as set forth in Paragraph 2 above.
TOTAL DESIGN FEES: $2,500
(i) Non-Refundable Nature of Flat Design Fees. CLIENT understands and agrees that Flat Design Fee(s) are non-refundable.
(B) Timing of Payments:
The Flat Fee(s) as set forth above are due and payable to HOF upon the execution of the agreement and checking out online.
Invoices and approved Proposals for Interior Design Items and Reimbursable Expenses and Disbursements are due within fourteen (14) days of the submission of an Invoice or an approved Proposal for the same. Invoices more than 30 days past due will accrue a 5% late fee per month and HOF reserves the right to cease all work under this Agreement until the outstanding Invoice(s) is/are paid by CLIENT. No work or orders will begin prior to payment.
HOF shall be entitled to withhold delivery of any item purchased on behalf of CLIENT should CLIENT fail to make any payments due to HOF in a timely manner, as stated above.
(i) Failure to Pay for Design Services. In addition to any other right or remedy provided by law, if Client fails to pay for the Design Services when due, HOF has the option to treat such failure to pay as a material breach of this Agreement, and may cancel this Agreement and/or seek legal remedies.
(C) Purchasing Through HOF. CLIENT purchases of interior design items, i.e. furniture, tile, fixtures, fabrics and other design materials, through HOF will serve as payment to HOF for its Services rendered to CLIENT during the Purchasing Phase. CLIENT understands and agrees that HOF is charging commercially reasonable “retail” prices for said purchased items and is not required in any way to disclose and/or pass through to CLIENT any “trade discount” received by HOF.
(i) Refunds and Cancellations. Once CLIENT approves a Proposal, most items cannot be returned or cancelled, and therefore CLIENT requests to do so will be assessed on a per-item basis with no guarantee of return or cancellation by HOF. CLIENT understands and agrees that custom items cannot be cancelled or returned under any circumstances.
4. INSPECTION OF ITEMS AND WARRANTIES
CLIENT shall have the benefit of all guarantees and warranties from suppliers and manufacturers possessed by HOF, but only to the extent transferable. CLIENT further understands and agrees that HOF makes no warranties, however, for the goods or services HOF proposes, designs or provides over and above the manufacturer’s or supplier’s warranties. In particular, HOF cannot guarantee any fabric, material or article against fading, wearing or latent defects over and above the manufacturer’s warranty.
CLIENT further understands and agrees that CLIENT is under an obligation to inspect all items immediately upon delivery and/or installation and to communicate, in writing, any concerns to HOF within three (3) business days from the date of delivery and/or installation so as to allow HOF the opportunity to pursue any warranty or guaranty on behalf of the CLIENT. CLIENT further acknowledges and agrees that CLIENT’s failure to promptly notify HOF of any defects or concerns may result in the voiding of or inability to pursue any guaranty or warranty.
5. PURPOSE OF HOF DRAWINGS AND DOCUMENTS
CLIENT understands and agrees that HOF’s drawings and documents are conceptual in nature and are intended to set forth design intent only; they are not to be used for architectural, engineering and/or construction purposes. CLIENT expressly acknowledges and agrees that HOF does not perform architectural or engineering services and that if an architect and/or engineer is required, such professional will be engaged by CLIENT directly.
CLIENT further understands and agrees that HOF Design Services do not include modifications to structural, heating, air conditioning, plumbing, electrical, ventilation or other mechanical systems installed or to be installed on the Project. HOF shall be held harmless for relying on the accuracy of any information provided by the CLIENT.
CLIENT further understands and agrees that HOF Project drawings and/or documents cannot be used by CLIENT for any purpose other than completion of Project by HOF as set forth in this Agreement.
6. CONTRACTORS AND CONSULTANTS
CLIENT understands and agrees that HOF is not a general contractor and does not provide contractor or construction services. If the Project requires contractors and/or consultants to perform work based on HOF’s concepts, CLIENT will enter into a contract directly with each contractor and/or consultant. HOF provides no warranty, guarantee, certification, or responsibility for the performance, quality, or timely completion of any work performed or materials installed by Contractor(s), nor their agents or employees.
CLIENT is responsible for permitting and/or obtaining any and all approvals and compliance required by any governmental agency.
8. PHOTOGRAPHS and PUBLICITY
CLIENT agrees to allow HOF and/or HOF’s representatives to photograph the Project during all stages of Design Services including when the Project is complete. Photographs will be used for business purposes, including, but not limited to: press, publications, online, social media, marketing, advertising, and print. HOF will not disclose the Project address or CLIENT’s name without prior written consent. Costs of photographs and publicity are the responsibility of HOF. Additionally, if CLIENT or CLIENT’s agents document the Project, HOF shall be given credit as the Designer if said documentation is released publicly.
The occurrence of any of the following shall constitute a material default under this Agreement:
a. The failure to make a required payment when due.
b. The insolvency or bankruptcy of either Party.
c. The subjection of any of either Party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
This Agreement will take effect on the Effective Date and terminate automatically upon completion by HOF of the Design Services required by this Agreement.
This Agreement may be terminated by CLIENT, in writing, only under the following circumstances:
- CLIENT shall remain liable for all outstanding obligations owed to HOF and to third parties for services and/or merchandise then on order as of the termination date.
- CLIENT shall reimburse HOF for all out-of-pocket expenses incurred by HOF in connection with your Project and compensate HOF for all services performed by HOF up to and including the date of termination, irrespective of the payment schedule outlined in this Agreement.
- CLIENT expressly agrees to take no action that is intended, or would reasonably be expected, to harm HOF’s reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to HOF or which would disparage HOF in any way.
- CLIENT shall have the right to use HOF’s Project Documents provided:
- CLIENT agrees to indemnify and hold HOF harmless from and against any and all costs, claims or expenses, including reasonable attorneys’ fees and related costs, arising out of or relating in any manner to CLIENT’s subsequent use of the Project Documents.
- CLIENT releases HOF from any further obligations under this Agreement.
- CLIENT will not permit any other person, firm or entity to claim design credit for any work prepared by HOF prior to the date of termination.
In addition to any and all other rights a party may have available according to law, if a Party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other Party may terminate the Agreement by providing written notice to the defaulting Party. This notice shall describe with sufficient detail the nature of the default. The Party receiving such notice shall have fifteen (15) days from the effective date of such notice to cure the default(s). Unless waived by a Party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
12. LIMITATION OF LIABILITY AND INDEMNIFICATION
To the fullest extent permitted by law, HOF’s liability to CLIENT in regard to any losses, claims or liabilities arising out of or relating to this Agreement and/or the Design Services rendered by HOF shall not, for any reason, exceed the greater of: (i) any available proceeds from insurance maintained by HOF (if any); or (ii) the total amount of fees actually paid by CLIENT to HOF under this Agreement. CLIENT understands and agrees that HOF is not responsible for any consequential damages; nor is HOF responsible for any loss, damage or delay that is caused by any reason beyond HOF’s reasonable control. In addition, by entering into this Agreement, CLIENT understands and agrees that HOF shall not be held liable under any contract that CLIENT may have with any other person or entity, including but not limited to any contracts that CLIENT may have with any vendor, supplier, contractor or other design professional (even if HOF recommended such person or entity to CLIENT).
CLIENT agrees to indemnify, defend and hold HOF harmless to the fullest extent permitted by law from and against any third-party claims, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) relating to or arising out of the negligence, failure and/or acts or omissions on the part of any architect, vendor, supplier, contractor or agent hired or retained by CLIENT.
13. FORCE MAJEURE
If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either Party’s reasonable control (“Force Majeure”), and if the Party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the Party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or other labor disputes, or supplier failures. The excused Party shall use reasonable efforts under the circumstances to avoid or remove such causes of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a Party if committed, omitted, or caused by such Party, or its employees, officers, agents, or affiliates.
Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place at a location that is reasonably centrally located between the parties, or otherwise mutually agreed upon by the parties. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than thirty (30) days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the Parties shall continue to perform their respective obligations under this Agreement. BY AGREEING TO ARBITRATION, THE PARTIES UNDERSTAND AND AGREE THAT THEY ARE WAIVING THEIR RIGHTS TO MAINTAIN OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION OR ADMINISTRATIVE PROCEEDING, INCLUDING BUT NOT LIMITED TO WAIVING THE RIGHT TO A TRIAL BY JURY, TO SETTLE THEIR DISPUTES.
All rights and obligations, which are, by their nature, continuing (including but not limited to indemnification obligations, payment obligations, HOF’s right to withhold merchandise in the event of CLIENT’s non-payment, and HOF’s right to use photographs of the Project) shall survive termination or expiration of this Agreement.
16. ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral agreements between the parties.
If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed and enforced as so limited.
This Agreement may be modified or amended in writing, if the modification or amendment is in writing signed by both CLIENT and HOF.
19. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State of New Jersey.
Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by email with receipt, or by certified mail, return receipt requested to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
21. WAIVER OF CONTRACTUAL RIGHT
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.