This Master Service Agreement (“Agreement”) is entered into by and between KC Cabinetry & Stone, LLC. and its affiliates and authorized agents (“Service Provider”, “We”, “Us”, “Our”) and (“Customer”, “You”, “Your”) for services (“Services”) as outlined in Our quote form, Our order form, or Our purchase order form (collectively the “Scope of Work”, “SOW”) shall be effective on the earliest of (a) the date You click a button or link indicating Your agreement with the terms of this Agreement; or (b) You enter into or sign the SOW, or a similar written or electronic form from Us or Our affiliates or agents that references, links, or otherwise incorporates this Agreement.
If You are entering into this Agreement on behalf of Your organization, that organization is deemed to be the Customer and You represent that You have the power and authority to bind Your organization to this Agreement.
1. SCOPE OF WORK (“SOW”) TERMS AND CONDITIONS
1.1 Customer acknowledges that Customer is solely responsible for material selection for SOW, including but not limited to: material type, layout, size, dimensions, quantity, color, edge profile(s), sink dimensions, sink layout(s), and backsplash option(s) (collectively the “SOW Materials”). In addition, Customer is solely responsible for determining installation requirements, including but not limited to: plumbing connect and disconnects, tear-out, turn-around time, and other installation option(s) (collectively the “SOW Installation Requirements”).
1.2 Customer acknowledges that any estimates shown on Server Provider’s website, ads, or any other marketing or sales collateral are estimates only and not considered to be final SOW pricing. Final SOW pricing can vary based on SOW Materials and SOW Installation Requirements.
1.3 Customer acknowledges final SOW requirements must be confirmed with an on-site measurement and confirmation of SOW Materials (“Templating”) to finalize exact material requirements, including but not limited to: size, dimensions, quantity, installation requirements, etc. Customer, or an authorized agent, must be on-site at time of Templating to confirm SOW requirements in writing.
Customer acknowledges that Templating may result in changes to estimated SOW Materials and therefore may result in changes to the final SOW pricing.
Service Provider provides one (1) Templating session as part of SOW and cost for the session is included in the SOW pricing. If Customer cancels the Order and terminates Agreement after Templating, Customer shall be responsible for paying the session fee calculated as the greater of $500 or $10/square foot (“Change Order Fee”).
If additional sessions are required, Service Provider reserves the right to require Customer to pay an additional on-site fee (“Trip Fee”) calculated as the greater of $250 or $5/square foot for each additional on-site visit and each session must be scheduled on a day that best fits the Service Provider. Customer may reschedule the session with 3 business days advanced notice without penalty.
All items that could affect the SOW Materials or SOW Installation Requirements and are not purchased through Service Provider, including but not limited to sinks, free standing range, slide in range, down draft and/or cook tops must be on-site at Templating. Apron front/farm sinks must be installed prior to Templating, unless the manufacture suggests otherwise.
Any and all cabinets receiving SOW Materials must be permanently installed, set, leveled and properly secured to the wall and/or floor, and Customer acknowledges Service Provider will not level or adjust cabinets as part of Templating or SOW Installation Requirements. If cabinets are adjusted by Customer or another third-party after Templating, another Templating session will be required at the Customer’s expense (an additional Trip Fee and additional Templating session fee).
Customer acknowledges that Templating must be performed on Customer cabinetry without any existing countertops. If cabinetry has existing countertops, Customer must remove existing countertops prior to Templating.
If Customer cannot remove existing countertops prior to Templating, Customer acknowledges that Templating performed with existing Customer countertops in place will not produce accurate or exact measurements needed for fabrication or installation. As a result, Customer is solely responsible for any gaps or imperfections that may appear as a result of Templating with existing Customer countertops in place and Service Provider shall not be responsible for any repairs to fix such gaps or imperfections.
1.4 Service Provider shall not be responsible for tear-out, removal, and disposal of existing Customer countertops and related debris (“Tear Out”) unless Customer purchases such services as part of Order.
Service Provider shall not be responsible for any additional work or services that may be required after Tear Out, including but not limited to paint, wallpaper, tile, spackle, trim, mirrors, etc. As part of Tear Out, Service Provider shall not be responsible for any damages to Customer’s cabinet integrity, walls, or any surrounding Customer property, including but not limited to: furniture, appliances, fixtures, plumbing, electrical wiring, flooring, or any other surrounding property. Moreover, if after Tear Out, Service Provider uncovers issues with Customer cabinets, Customer must make the proper repairs or adjustments to Customer cabinets and schedule another Templating session, at the Customer’s expense, after such repairs or adjustments are complete.
1.5 Customer acknowledges fabrication of SOW Materials shall begin after Templating is complete.
Customer acknowledges it is their responsibility to select SOW Materials for color, shade, and veining. Customer acknowledges that if their selection does not result in enough material to meet SOW Material requirements, Customer authorizes Service Provider to select additional SOW Materials to meet requirements and consents to any price adjustments as a result. Customer may also elect to authorize Service Provider use Service Provider’s best judgement to select SOW Materials that meet SOW requirements.
Service Provider will make every effort to closely match any variations in the SOW Materials during Fabrication using the Customer selection of SOW Materials.
Service Provider shall make every effort to keep seams inconspicuous and at a minimum and in accordance to industry standards. Customer acknowledges that seams on countertops and backsplashes are unavoidable and cannot be invisible. If Customer has specific requests for seam placement, Customer must be present at the time of fabrication to relay these requests to the Service Provider fabricator. If lieu of being present, Customer accepts the Service Provider’s best judgment.
1.6 Customer acknowledges on-site installation (“Installation”) of fabricated SOW Materials will be scheduled after fabrication of SOW Materials. The customer must be on-site for Installation and available to complete the Certification of Completion.
Customer cabinets must be ready for the Installation. Customer plumbing must be disconnected prior to Installation and all faucets, fixtures, and other accessories requiring a hole to be drilled into the fabricated SOW Materials must be on-site prior to Installation.
Service Provider shall only install items purchased as part of Order, such as a sink. Service Provider shall not install Customer items, including but not limited to: Customer sinks, cook tops, appliances, etc., unless item is included in the Order. Service Provider shall not be responsible for moving Customer major appliances.
Service Provider shall not be responsible for reconnecting Customer plumbing unless Customer purchases such services as part of Order. Service Provider shall not be responsible for any electrical work.
As part of Installation, Service Provider shall not be responsible for any damages to Customer’s cabinet integrity, walls, or any surrounding Customer property, including but not limited to: furniture, appliances, fixtures, plumbing, electrical wiring, flooring, or any other surrounding property.
Service Provider shall apply one (1) coat of sealant during Installation. After sealing, Customer must wait a minimum of 48 hours before preparing food on countertops to ensure the sealant is fully absorbed and cured. Customer is responsible for applying additional coats to countertops after Installation. For best results, Customer should apply an additional coat of sealant one month after Installation in accordance to industry standards recommended by Natural Stone Institute (NSI).
Service Provider provides one (1) Installation session as part of SOW. If additional Installation sessions are required, Service Provider reserves the right to require Customer to pay an additional Trip Fee for each additional on-site visit and each session must be scheduled on a day that best fits the Service Provider. Customer may reschedule the session with 3 business days advanced notice without penalty.
1.7 Customer authorizes and grants Service Provider permission to take videos, images, or other types of media, including but not limited to: images, likeness, photos, drawings, blueprints, video, voice, interviews, quotes, prices paid, sound effects, social media posts, etc. (collectively “Project Media”) of the Customer, the Service work area at the Customer property (before and after Service commences) and Service materials, and grants Service Provider the irrevocable, perpetual right to use Project Media for Service Provider marketing, advertising, or promotional material. Customer also authorizes Service Provider to make any edits, cuts, paraphrases, spelling corrections, grammatical changes, graphical additions, updates, or changes to Project Media as deemed necessary by Service Provider (collectively “Directorial Edits”) for marketing, advertising, or promotional purposes as long as any Directorial Edits preserves the original truth in Project Media. Customer acknowledges that Service Provider shall own all rights and interest, including the copyright, to any and all Project Media.
2. SERVICE TERMS AND CONDITIONS
2.1 Customer acknowledges that Service Providers shall only perform work as outlined in the SOW. Any extra work or services (“Extra Services”) not covered by the SOW shall not be performed by Service Provider unless Extra Services’ scope of work, pricing and timing for delivery of Extra Services are agreed upon, in writing, by both parties (“Change Order”). Customer further acknowledges that Service Provider reserves the right to require Customer to pay a Change Order Fee and the Change Order Fee may not be refundable due to cancellation of Change Order.
2.2 Customer shall be responsible for storing away, covering, or preventing damage to Customer pets and Customer property (collectively “Customer Property”) during installation or Services related work. Service Provider is not responsible for any Customer Property damage, including hidden freon, electrical, plumbing, satellite, telephone, alarm, or other items not installed by Service Provider.
Service Provider shall be responsible for clean up after Services, which includes picking up and disposing of any debris left over from Services away from Customer Property.
2.3 Customer shall not tamper with or damage any Services material or equipment brought by Service Provider or delivered to Customer address, otherwise Customer shall be liable for damages. Any leftover or unused Services material is Service Provider property.
2.4 Labor warranty by Service Provider does not cover damage caused by flooding, water damage, strong winds, lightning, hail, acts of God or Force Majeure. Labor and material warranty is non-transferable.
2.5 If Agreement is subject to approval by Your insurance provider (“Insurance”): (a) Services shall be completed in accordance with Insurance scope of loss report. (b) Customer authorizes Service Provider to discuss, negotiate, schedule, and act on behalf of Customer in good faith with Insurance to complete Services. (c) Any extra work not covered or approved by Insurance shall not be performed unless agreed upon, in writing, by both parties, and shall be billed at the Customer’s expense. (d) Customer acknowledges that withholding any payments by Insurance intended for Services is a breach of Agreement as well as insurance fraud and Service Provider shall report such activity to the proper authorities.
3.1 Any and all payments must be paid by the payment due date as stated in the payment invoice. Payments must be paid in full or in agreed upon payment installments. Customer further agrees that any equity for the Property can act as security for payment.
3.2 The payment terms and schedule as set out in this Agreement must be strictly complied with by Customer. The acceptance of payment after the due date by Service Provider shall not be construed to be a consent to late payments or waiver of late fees/interest in the future. All discounts and warranties are void if payment is received in accordance to the schedule.
3.3 Service Provider reserves the right to require Customer to authorize payment or pay a deposit before commencing Services. Customer acknowledges that deposit may not be refundable if Customer cancels or terminates this agreement for any reason prior to completion of Services.
3.4 If Customer fails to pay any balance due within thirty (30) days after completion of Services, the balance shall accrue interest at the rate of 1.5% per month until paid, or such lesser amount of interest if limited by applicable law. If this matter is referred to a collection agent or attorney, Customer agrees to pay all costs of collection and litigation, including reasonable attorney and court fees.
3.5 If Customer authorizes payment upon completing or signing SOW or Agreement, Customer acknowledges that Service Provider may electronically charge Customer’s payment method at any time for Services in accordance to the SOW. Furthermore, Customer certifies that they are an authorized user or owner of the payment method and will not dispute any electronically charged transaction(s) with Customer’s bank or credit card company, so long as the transaction(s) correspond to the terms in the SOW or Agreement. Customer acknowledges that their authorization shall remain in effect until they revoke the authorization in upon written or electronic notice to Service Provider or until all payments have been made for Services rendered. In the event that a transaction is not honored or declined, Service Provider has the right to reprocess the transaction. Customer acknowledges that Service Provider has the right to revoke this method of payment at any time.
For ACH debits to Customer’s bank account, Customer acknowledges that because these are electronic transactions, these funds may be withdrawn from Customer’s account at any time in accordance to their bank policies for ACH debits. In the case of an ACH transaction being rejected for Non Sufficient Funds (NSF), Customer acknowledges that Service Provider may at its sole discretion attempt to process the charge again within 30 days. Customer acknowledges that the origination of ACH transactions to Customer’s bank account must comply with the provisions of U.S. law.
4. MATERIAL DISCLAIMERS AND WARRANTIES
4.1 Natural stone material, such as marble and granite slabs, commonly have inherent fractures in the material and are not defects in the material.
ALL SOW MATERIALS ARE SUBJECT TO VARIATION IN COLOR, FLOW, GRAIN, TONALITY, SPOTTING, VEINING, SHADE, AND TEXTURE. SERVICE PROVIDER SHALL NOT BE HELD RESPONSIBLE FOR NATURAL FRACTURES EXISTING IN STONE.
Service Provider will make every effort to avoid any fractures whenever possible and strengthen fractures that cannot be avoided with liquid epoxy.
SERVICE PROVIDER DOES NOT GUARANTEE OR WARRANTS MATERIALS AGAINST GRAZING, SCRATCHING, BRUISING, CHIPPING, CRACKING, STAINING OR WEAR-AND-TEAR ON THE STONE SURFACE OR OTHERWISE.
4.2 ALL MATERIALS ARE SUBJECT TO MANUFACTURER WARRANTIES. SERVICE PROVIDER SHALL NOT BE RESPONSIBLE FOR MANUFACTURER DEFECTS.
SERVICE PROVIDER DOES NOT PROVIDE ANY ADDITIONAL WARRANTIES FOR SOW MATERIALS.
Customer acknowledges it is their sole responsibility to the manufacturer regarding replacements or compensation for defects in SOW Materials.
Any replacement of material as a result of manufacturer’s warranty may require Tear Out, Templating, Fabrication, and/or Installation services by Service Provider at the Customer’s expense for the material being replaced.
5. GENERAL TERMS AND CONDITIONS
5.1 This Agreement and its enforcement shall be governed by the state where the Service Provider is headquartered. The Customer consents to resolving any disputes of any claims under this Agreement to take place in the state and federal courts located where the Service Provider is headquartered.
5.2 Customer further acknowledges that this Agreement constitutes the entire understanding of the parties, and no other understanding, collateral or otherwise, shall be binding unless in writing and signed by both parties.
5.3 The Customer agrees that the terms of this Agreement are not assignable in whole or in part by any party without the prior written consent of Service Provider
5.4 This Agreement may be executed in one or more counterparts each of which will be deemed an original but all of which when taken together will constitute one and the same instrument. This instrument sets forth the entire Agreement between the parties and may not be contradicted by any oral understanding or Agreement not reflected herein. This Agreement may not be altered, changed, modified or waived in whole or part except by an Agreement in writing signed by Service Provider and Customer, and approved by Speaker, as applicable. An executed electronic copy of this fully executed Agreement shall be deemed an original.
5.5 In the event Customer fails to provide any of the items herein stated, fails to make payments in a timely manner, or breaches any of the other conditions set forth in the Agreement, Service Provider may immediately enforce any and all remedies available to it under law or equity. This event is non-cancellable.
5.6 In the event any breach or cancellation of this Agreement by Customer, the price for Services or any remaining balance, shall become due and payable immediately to Service Provider
5.7 Notwithstanding any other provision of this Agreement, in the event that the performance of any obligation under this Agreement by either party is prevented due to acts of God, weather or natural disaster, failure or inadequacy of utility services, exchange controls, export or import controls, supply chain disruption, government mandated shut downs/lock downs/restrictions on business operations, terrorist attacks, lockouts, failure or delay of transportation not within either party’s reasonable control, absence of power or other essential services, failure of technical facilities, inclement weather, or any other cause beyond the reasonable control of a party (“Force Majeure”), such party shall not be responsible to the other parties for failure or delay in performance of its obligations under this Agreement. Each party shall promptly notify the other parties of such Force Majeure condition. The terms of this Clause shall not exempt, but merely suspend, any party from its duty to perform the obligations under this Agreement until as soon as practicable after a Force Majeure condition ceases to exist.
Accordingly, any financial or other accommodation offered by Service Provider in the event of an event of Force Majeure is non-obligatory and will be offered only at the sole and absolute discretion of Service Provider, which may be granted or withheld in its sole discretion.
5.8 Each party to this Agreement shall each indemnify, release, defend and hold harmless the other party, its directors, officers, agents, affiliates, subcontractors, and employees from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses, including without limitation, reasonable attorneys’ fees and costs, arising out of a third party claim, action, or proceeding, based directly or indirectly on any breach of its obligations, representations or warranties contained in this Agreement or arising from or relating to its performance under this Agreement.
The party claiming indemnification under this Section shall promptly notify the other party when it has knowledge of circumstances or the occurrence of any events which are likely to result in an indemnification obligation under this section or when any action, suit, arbitration, or judicial or administrative proceeding covered by this section is pending or threatened.
Neither party shall be liable to the other for punitive, exemplary, special, indirect, or consequential damages including, without limitation, lost profits, each party’s aggregate liability being limited to the other party’s direct monetary damages. In the event of a claim from a third party, either party may, at their own expense, assist in the defense if each so chooses, provided that: (i) the ultimate party against whom the claim is asserted shall control such defense and all negotiations relative to the settlement of any such claim; and (ii) any settlement intended to bind the claimant party shall not be final without the claimant party’s written consent.
In the event of a claim from a third party which entitles either Service Provider or Customer to claim indemnification under this Section, either party may, at their own expense, assist in the defense of such claim if each so chooses, provided that: (i) the ultimate party against whom the claim is asserted shall control such defense and all negotiations relative to the settlement of any such claim, subject to its obligation to indemnify under this Section; and (ii) any settlement intended to bind the indemnifying party shall not be final without the indemnifying party’s written consent.
The party to whom the indemnification obligation is owed under this Section shall be required to provide reasonable cooperation to the indemnifying party in the defense of any claim hereunder.