Terms & Conditions

Interior Design and Purchasing Services Agreement

This Interior Design Services Agreement (this “Agreement”) is entered into as of the date this Agreement is fully executed (the “Effective Date”) by and between Virtual Commercial Design, LLC, a Colorado limited liability company, d/b/a Spaciel (“Spaciel”), and the client of Spaciel who signs of this Agreement (the “Client”). Spaciel and Client may be referred to herein as a “Party” or the “Parties.”

Recitals

1. Spaciel provides interior design services (the “Services”), which include, but are not limited to, the planning and designing of interior environments encompassing building materials and finishes; furniture, and furnishings; lighting; ergonomics; and other non-structural/non-seismic construction and alteration projects. Spaciel does not provide architectural, engineering, construction, or general contracting services, or any services that are not permitted under the applicable law.
2. Client is engaging Spaciel to provide Services on a project basis for the site address identified on the signature page (the “Site”).

Agreement

Accordingly, the Parties agree as follows:

1. Services.
   • Performance of Services. This Agreement shall govern all Services provided by Spaciel to Client. Spaciel shall perform the Services in accordance with this Agreement. Spaciel shall provide the Services described in written statements of work according to the time line described in each statement of work (“SOW”) and “Specifications” included therein. SOWs shall be in a format substantially similar to that set forth in Exhibit A attached and made a part hereto.
   • Creation of Design Concept. After execution of this Agreement, the Parties shall prepare and execute an interior design concept plan (a “Design Concept”). Spaciel’s efforts to create the Design Concept are Services provided to Client hereunder and may require an evaluation of the Site. The Design Concept will contain, as needed, a description of additional Services, any schematic designs, floorplan layouts, specifications, delivery and performance schedules, terms and conditions, overall project budget, and an estimate of Service Fees. Spaciel will be free to exercise its creative discretion in creating the Design Concept and performing Services under the Design Concept.
   • Changes in Services. Client may request changes or additions to the Services or to the Design Concept (“Change Request”) from time to time orally or in writing. Within a reasonable time after receipt of a Change Request, Spaciel shall provide Client with a written response to the Change Request, including an adjustment to the overall project budget and the estimated Service Fees. If agreed by the Parties, the Parties shall execute a written change order (a “Change Order”), which shall amend and be incorporated into the Design Concept.
   • Differing Site Conditions. If conditions at the Site that are (a) subsurface or otherwise concealed physical conditions that differ materially from those indicated on the Design Concept or (b) unknown physical conditions of an unusual nature that differ materially from those ordinarily found to exist and generally recognized as inherent in interior design activities of the character provided for in this Agreement (“Differing Site Conditions”), Spaciel shall promptly notify Client and the Parties shall execute a Change Order to alter the scope of the Services or Design Concept and adjust the overall project budget and estimated Service Fees. Client shall be responsible for all costs caused by Differing Site Conditions. If Client does not agree to the Change Order, Spaciel may cease performing Services and immediately terminate this Agreement.
   • Spaciel Representations and Warranties. Spaciel represents and warrants that Spaciel: (a)has the professional skill and experience to perform the Services; (b) will perform the Services in a good and workmanlike manner; (c) will perform the Services in accordance with the standards of care, skill, and diligence provided by competent professionals who perform services of a similar nature to those specified herein; and (d) will perform the Services timely to assure their expeditious completion.
2. Fees and Expenses.
   • Fees. Client shall pay Spaciel fees for the performance of Services calculated on project basis, as set forth on the applicable SOW (the “Service Fees”).
   • Expenses. Client shall reimburse all the following expenses incurred by Spaciel in the course of providing Services (the “Expenses”): (a) all incidental and out-of-pocket expenses, including costs for postage, shipping, courier, service bureaus, typesetting, blueprints, models, parking fees and tolls, samples, finishes, and mock-ups, plus Spaciel’s standard reimbursable expenses markup of ten percent (10%); (b) with Client’s prior written approval, travel expenses incurred beyond a sixty (60) mile radius from Spaciel main office, including mileage reimbursement at $0.58 per mile; (c) printing and copying expenses, including large-scale printing (including drawing sets), black and white copies/prints at $0.07 per 8.5x11 and 11x17 sheet, and color copies/prints at $0.20 for the same; and (d) any other expenses agreed to in writing by the Parties.
   • Invoicing and Payment. The Service Fees and Expenses will be invoiced to Client periodically, but not more than monthly. Client shall pay all invoices within thirty (30) days of the invoice date. If Spaciel does not receive payment timely, Spaciel may assess interest equal to one and one-half percent (1.5%) of the unpaid amount. Spaciel may cease performing Services if invoices are not timely paid. All Service Fees and Expenses will be deemed accepted by Client if not disputed within thirty (30) days of the invoice date.
3. Purchasing Merchandise.
   • Merchandise. Any item of moveable furniture, furnishings, light fixtures, hardware, accessories, and other interior decoration (“Merchandise”) to be purchased by Spaciel will be specified in a written purchasing proposal (a “Merchandise Proposal”). The Merchandise Proposal will include: (a) a description of the Merchandise for purchase; (b) the estimated Merchandise Fee (defined below); and (c) any other delivery or installation charges incurred.
   • Merchandise Fees. The price of each item of Merchandise purchased by Spaciel on behalf of Client (the “Merchandise Fee”) is comprised of: (a)the amount charged to Spaciel by the supplier of such item; (b) Spaciel’s fees on the item, if any; and (c) all other costs associated with purchasing, delivering, or installing the Merchandise, including shipping and handling charges and estimated taxes
   • Procedure. Spaciel will have no obligation to purchase any Merchandise until Spaciel receives Client’s written acceptance of the Merchandise Proposal and Client pays the estimated Merchandise Fee to Spaciel. Upon Client’s acceptance of the Merchandise Proposal, Spaciel will invoice Client for the Merchandise Fees. Client’s failure to timely pay Merchandise Fees may result in Service delays. If the final Merchandise Fee is different than the estimated Merchandise Fee paid by Client, Spaciel or Client will promptly refund or reimburse, as the case may be, the other for the difference. Due to the varying nature of certain Merchandise, items may require further work and costs from one or more third parties.
   • Cancellation. If Client wishes to cancel any item of Merchandise ordered pursuant to a Merchandise Proposal, Client must immediately notify Spaciel in writing. Upon notice of cancellation of any Merchandise, Spaciel shall use reasonable efforts to seek cancellation of such items; however, Client is responsible for (a) any costs or fees incurred by Spaciel in cancelling the Merchandise, including restocking fees, and (b) items that cannot be returned, refunded, or cancelled after purchase.
   • Risk of Loss. Unless otherwise described in writing between Spaciel and Client, shipment of Merchandise to any Client destinations will be FCA (Incoterms 2010) the Merchandise’s shipping point, at which time title and risk of loss will pass to Client.
4. Insurance. Spaciel shall obtain and maintain at its sole expense all insurance required by law during the term of this Agreement. Client shall obtain and maintain homeowner’s insurance or commercial general liability insurance during the term of this Agreement.
5. Client’s Responsibilities.
   • Cooperation with Spaciel. Client shall cooperate with Spaciel during the performance of Services, including by providing full and complete information regarding Client’s requirements. Client shall promptly: (a) respond to any requests Spaciel may have from time to time; (b) provide Spaciel with additional information to any inquiries made by Spaciel; and (c) approve or reject changes in the Services. Client’s failure to timely cooperate with Spaciel may result in delays to the Service.
   • Permits and Other Professionals. It is Client’s sole responsibility to ensure that Client obtains all necessary licenses, permits, authorizations, inspection and certifications necessary to implement the Design Concept. Client acknowledges that Spaciel only provides interior design services and not architectural, engineering, construction, or general contracting services. It is Client’s obligation to retain any architects, engineers, construction professionals, or general contractors necessary to complete any work required to implement the Design Concept. It is Client’s sole obligation to determine whether and when to engage an architect, engineer, construction professional, or general contractor. Spaciel will have no liability arising out of or related to Spaciel’s recommendations for architects, engineers, construction professionals, or general contractors or from Client’s decision to engage or not to engage any architect, engineer, construction professional, or general contractor.
   • Client Representations and Warranties. Client represents and warrants that: (a) Client has obtained all legal right, title, and interest necessary for Spaciel to provide Services on the Site; (b) Client has obtained or will timely obtain all necessary permits, licenses, approvals, and the like from applicable government authorities as required; (c) there are no environmental or other legal impediments prohibiting or limiting Spaciel’s ability to perform the Services; (d) Client will maintain enough funds available and committed to timely pay Spaciel all amounts due to Spaciel under this Agreement; and (e) there are no conditions or defects on the Site that may impede or prohibit the Services from being provided.
6. Independent Contractor Relationship.
   • Spaciel is an independent contractor, and not an employee, of Client. The Parties are not partners or joint venturers. Spaciel may work for other persons in addition to Client. Client will not oversee or direct Spaciel’s performance of Services and will not dictate how the Services will be performed. Spaciel is responsible for the manner and means by which the Services are performed. Client will not provide any benefits for Contractor, including, without limitation, vacation, health insurance, or dental insurance. Unless expressly set forth in the Design Concept, Spaciel is not an agent of Client and Spaciel will have no right, power, or authority to bind Client. Client is not an agent of Spaciel and Client will have no right, power, or authority to bind Spaciel. Client shall not be responsible for withholding taxes with respect to Spaciel’s compensation hereunder, including FICA. Client may report payments to Spaciel using IRS Form 1099.
   • Spaciel may employ as many persons as it may require. With respect to such employees, Spaciel shall be solely responsible to secure workers’ compensation insurance, disability insurance, and any other insurance as may be required by law, and to pay all required payroll taxes, whether federal, state, or local in nature, including income taxes, Social Security taxes, unemployment compensation taxes. Any persons employed by Spaciel shall not be Client’s employees by virtue of this Agreement.
7. Termination.
   • Termination for Breach. A Party may terminate this Agreement if the other Party commits a material breach of this Agreement that remains uncured for five (5) business days after the non-breaching Party gives written notice to the breaching Party identifying the breach in reasonable detail. Each Party’s right to terminate this Agreement is in addition to any other rights and remedies the Party may have.
   • Termination for Convenience. Either Party may terminate this Agreement for any reason or no reason by providing the other Party with fourteen (14) days written notice.
   • Effect of Termination. Upon termination of this Agreement, Spaciel shall cease all Services. Client shall pay Spaciel for all Services performed and Expenses and Merchandise Fees incurred through the date of Termination. Spaciel shall send Client a final invoice after termination, which Client shall pay within thirty (30) days. Any provision which by its nature is intended to survive termination in order to give effect to the Parties’ intent shall so survive termination.
8. Spaciel Disclaimers.
   • Except for the warranties expressly set forth in Section 05, Spaciel does not warrant, and expressly disclaims any express or implied warranties, any Services rendered, including any warranties of merchantability or fitness for a particular purpose, marketability, or resale value.
   • Spaciel is not an architect, engineer, construction professional, or general contractor. Any drawings, specifications, recommendations, renderings, or other deliverables provided by Spaciel are conceptual in nature and solely intended to set forth design ideas and intent and shall not to be used for architectural, engineering, or construction purposes.
   • All Merchandise and consumer products provided by Spaciel are provided “as is.” Spaciel does not warrant, and expressly disclaims, any warranties related to any Merchandise or consumer products provided or recommended by Spaciel. If permitted, Spaciel shall pass to Client the benefit of any warranties on such Merchandise or consumer products which are provided by the manufacturer or supplier.
9. Limitation of Liability.
   • Spaciel’s total liability arising out of or related to this Agreement shall not exceed the Service Fees paid by Client to Spaciel.
   • In no event shall Spaciel be liable for (a)special, indirect, consequential, punitive, probable, or incidental damages, (b) treble damages (or damages based on any other multiples), or (c) lost profits or interest, regardless of whether characterized as direct or another type of damages.
10. Indemnification. Client shall indemnify, defend, and hold harmless Spaciel from and against all liabilities, costs, or expenses (including attorneys’ fees) arising out of or in connection with any claim or action by a third party due to Client’s breach of this Agreement.
11. General Provisions.
    • Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to such jurisdiction’s conflict of laws principles.
    • Venue. Any action, suit, or proceeding brought by either Party to interpret or enforce this Agreement shall only be brought in a state or federal court located in Denver, Colorado. Each Party submits to the jurisdiction and venue of such courts and waives any objection to which it otherwise might be entitled regarding such jurisdiction or venue.
    • Jury Trial Waiver. Client waives any right to a trial jury in any action, suit, or proceeding arising out of or related to this Agreement.
    • Attorneys’ Fees and Cost of Collection. In any action, suit, or proceeding arising out of or related to this Agreement in which Spaciel is the substantially prevailing Party, Spaciel shall be entitled to recover from Client all of Spaciel’s costs and expenses incurred as a result of the action, suit, or proceeding, including reasonable attorneys’ fees. Client shall pay all of Spaciel’s cost of collecting any unpaid amounts due hereunder, including reasonable attorneys’ fees.
    • Assignment. Neither Party shall assign this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld, conditioned, or delayed.
    • Force Majeure. Spaciel shall not be deemed in breach of this Agreement if Spaciel is unable to perform the Services due to reasons outside of Spaciel’s reasonable control.
    • Entire Agreement. This Agreement, along with the Design Concept and any approved Merchandise Proposals, constitute the entire agreement between the Parties relating to the subject matter hereof. Should there be a conflict between this Agreement and the Design Concept or approved Merchandise Proposal, the Design Concept or Merchandise Proposal shall control. All proposals, negotiations, and representations, if any, made prior to the Effective Date are superseded by this Agreement.
    • Notices. All notices given under this Agreement shall be in writing and delivered to the mailing address or email address set forth herein; either Party may update its notice address by providing written notice to the other Party.
    • Severability. If any provision of this Agreement is held invalid or unenforceable, the Parties intend that the provision be enforceable to the maximum extent permitted under law and therefore the Parties desire and request that the court reform the invalid or unenforceable provision to render it enforceable to the maximum extent permitted. If the court refuses to modify or reform the provision, then the provision shall be severed from this Agreement with no effect upon the remaining provisions of this Agreement.
    • Counterparts. This Agreement may be executed and delivered in counterparts, all of which taken together will constitute one and the same agreement.
    • Headings and Interpretation. The headings used in this Agreement are inserted only as a matter of convenience and for reference, and they in no way define, limit, or describe the scope or intent of this Agreement, nor do they in any way affect this Agreement. The word “including” shall mean “including, without limitation.”
    • Third Party Beneficiaries. Nothing in this Agreement creates any third-party beneficiary rights or other rights to any third party.

The Parties are executing this Agreement to signify their acceptance of all the provisions set forth herein, to be effective as of the Effective Date.