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EDELWEISS JEWELRY LLC

HEIRLOOM MODERNIZATION SERVICES AGREEMENT

General Provisions

THIS AGREEMENT (“Agreement) is made between the Client specified in the attached Terms, and EDELWEISS JEWELRY LLC. (“Edelweiss”), a limited liability company, registered under the laws of the state of New York, having a principal place of business at 425 W. 53rd Street, PH8, New York, NY 10019. This Agreement sets forth the terms and conditions upon which Edelweiss will provide services to design and alter Client’s jewelry (the “Services”), as further detailed in the Proposal to which these General Provisions are appended.

  1. Amendments & Changes. (a) All changes to the Proposal (as defined herein) or these General Provisions shall be subject to the prior written consent of Edelweiss and Client, and each such approved change shall be governed by this Agreement; and (b) Client acknowledges and agrees that all Payments for Services are non-refundable.
  2. Representation & Warranties. Client represents and warrants to Edelweiss that: (a) Client has the power and authority to enter into, execute and deliver this Agreement; (b) this Agreement is legally binding on and enforceable against Client in accordance with its terms; (c) Client has no knowledge of any fact that materially adversely affects or, so far as it can foresee, might materially adversely affect its properties, assets, condition (financial or otherwise), business or operations or its ability to fulfill its obligations under this Agreement; (d) the observance and performance of the terms and conditions of this Agreement will not constitute a breach by it of or a default by it under (i) any applicable statute, bylaw or regulation, or (ii) any contract or agreement to which it is a party, including without limitation any will, trust, separation agreement or divorce decree; (e) Client has no knowledge of any untrue or inaccurate representation or assurance, whether verbal or written, given by Client in connection with this Agreement.
  3. Ownership of Property. Client represents and warrants that any property provided to Edelweiss for evaluation and/or alteration (Client’s “Property”) is personal property owned exclusively by Client, or that Client has been authorized to make alterations to the Property without seeking the consent of any other party. Client acknowledges and agrees that alterations to the Property by Edelweiss are not guaranteed to increase the value or marketability thereof.
  4. Use of Name. Nothing herein will grant Client any right to use the Edelweiss name for any purpose. Client agrees not to attempt to register any trademark or domain name using the Edelweiss name or confusingly similar names, and client hereby assigns Edelweiss all rights, title and interest in all such applications and registrations. All goodwill associated with the use of the Edelweiss name shall inure to the benefit of Edelweiss.
  5. Design Proposal & Revisions. Following receipt of Property by Edelweiss, Edelweiss will issue a detailed proposal (the “Proposal”) setting forth recommended design alterations, milestone dates and the price for performing alterations to the Property. Edelweiss will not provide any Services with respect to the Property until (a) Client’s consent to the Proposal is received by Edelweiss, which may be through electronic means, and (b) receipt of full payment for the proposed Services. Client’s agreement to the Proposal will be deemed a final purchase order for alterations to the Property. All orders are final and may not be cancelled or changed for any reason, unless with the written approval of Edelweiss. Changes to the final Proposal may carry an additional charge, in addition to a change order fee of $200. Due to the custom nature of the Services, except as expressly stated herein, Client shall not be entitled to any refunds, setoffs or credits for additional services. Edelweiss shall be entitled to all of its costs of collection of amounts outstanding hereunder, including without limitation, the fees of its attorneys.
  6. Shipping; Taxes. Client shall be responsible for all shipping and insurance costs, without markup by Edelweiss. Risk of loss shall transfer to Edelweiss from Client upon written confirmation of receipt of the Property by Edelweiss. Risk of loss shall then transfer back to Client from Edelweiss upon Edelweiss delivering the Property to the common carrier of Client’s choosing. Prices do not include sales, use or any value added or similar tax, which will be separately charged. Client agrees to hold Edelweiss harmless from all claims and liability arising from the failure to report or pay such taxes.
  7. Flaws & Defects. Flaws and defects in construction or design caused by Edelweiss (“Flaw”) must be reported in writing within three (3) days following return of the Property. Client shall be solely responsible for the cost of shipping and insurance for the return of any Property which Client deems flawed. In the event Edelweiss agrees that a Flaw has occurred, Edelweiss may, at its sole option, (i) repair the Flaw, or (ii) refund the estimated cost for making the proposed repairs, including Client’s reasonable cost of return shipping. This remedy is void if the error or defect is (a) the result of occurrences during shipment, (b) caused by the use, handling or storage of the Property by a third party, or (c) caused by modifications not made by Edelweiss or under its direct supervision.
  8. Force Majeure, Default and Termination. Edelweiss will not be responsible for any failure to comply with, or any delay in the performance of, the terms of this Agreement where such failure is directly, or indirectly, caused by or in any manner results from the events of Force Majeure beyond its control. These events shall include, but not be limited to, failure by Client to obtain any required permits, acts of God, flood, earthquake, civil disturbances, war, rationing, embargos, fire, strikes or labor problems, accidents, illnesses, epidemics or public health alerts, family or personal emergency, fuel or energy shortage or delay in transportation on the part of Edelweiss or any of its vendors or contractors, or any other condition beyond the reasonable control of Edelweiss affecting production or delivery. In the event of any such occurrence, Edelweiss use commercially reasonable efforts to promptly return the Property to Client.
  9. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL EDELWEISS BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES SUCH AS, BUT NOT LIMITED TO, LOST REVENUES, ANTICIPATED PROFITS OR LOST BUSINESS. THE MAXIMUM LIABILITY OF EDELWEISS HEREUNDER SHALL NET EXCEED THE PRICE FOR THE SERVICES PAID BY CLIENT TO EDELWEISS RELATED TO THE PROPERTY THAT IS SUBJECT OF DISPUTE.
  10. Client agrees to treat as confidential all business and technical information, trade secret, materials lists, techniques, supplier data or any other information supplied or disclosed by Edelweiss in connection with this Agreement and the Services (“Confidential Information”). Client shall not use or disclose to any third party, any Confidential Information, which information shall at all times remain the property of Edelweiss. Client’s obligations under this Paragraph 10 will survive for a period of two years from the date of completion of the Services and will bind Client’s representatives, successors and assigns; provided, however, that such obligations will terminate with respect to any Confidential Information which becomes available for unrestricted public use through no fault of the Client.
  11. Release and Indemnity. Client shall indemnify, defend and hold Edelweiss harmless from and against any and all liability, claims, demands, costs, expenses, loss and damage (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of any breach of this Agreement by Client, or in connection with the Property, occurring in connection with the Services provided hereunder, except to the extent arising from by the gross negligence or willful misconduct of Edelweiss. Client acknowledges that Edelweiss has been engaged to modify Client’s Property according to the proposal and specifications provided by Edelwiess, and Client hereby releases Edelweiss from any and all claims and causes of action that it may have against Edelweiss arising from the services provided hereunder.
  12. Non-Waiver. No provision of this Agreement and no breach by either party of any such provision will be considered to have been waived unless such waiver is in writing by the other party. The written waiver by a party of any breach of any provision of this Agreement will not be deemed a waiver of such provision or of any subsequent breach by the other party of the same or any other provision of this Agreement.
  13. The parties agree that any dispute that arises between the parties arising out of or in connection with this Agreement may be resolved by the American Arbitration Association. The arbitrator may award any legal or equitable remedy and may, in his or her discretion, require one party to pay the costs of the arbitration as well as the fees and expenses, including reasonable attorney’s fees, of the other party. In the absence of any such ruling, each party shall bear its own costs in connection with an arbitration proceeding hereunder and the parties shall share the costs of the arbitration equally. The place of arbitration, depositions, or lawsuits shall be New York, NY, and proceedings conducted in English. This Agreement shall be governed by and construed in accordance with the laws of New York.
  14. Any notice required to be given pursuant to this Agreement shall be in writing and mailed to the other party at the other party’s address as set forth in the Proposal, or to such other address that is provided to the other party in accordance with this paragraph. Notices to Edelweiss shall be sent by mail to Edelweiss Jewelry LLC, C/O Morrison Tenenbaum, PLLC, 87 Walker Street Second Floor, New York, NY 10013. Notices are deemed received five (5) days following mailing by express courier or registered mail.
  15. Client hereby agrees as follows: (a) the Proposal and General Provisions, along with appendices and riders thereto, constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior agreements and communications (both written and oral) between the parties relating generally to the same subject matter; (b) this Agreement shall terminate upon completion of the Services and confirmation by Edelweiss of delivery of Client’s Property to the common carrier of Client’s choosing (the “Term”); (c) this Agreement may be modified, or any rights under it waived, only in a writing signed by the party against whom enforcement of such modification or waiver is sought; (d) execution and delivery of this Agreement may be in counterparts evidenced by electronic transmission; (e) this Agreement shall be binding on the parties respective successors and assigns; (f) time is of the essence in this Agreement, (g) all covenants, agreements, representation and warranties made by Client under sections 9, 10, 11, and 13 of this Agreement, shall survive the Term of this Agreement; and (h) the parties agree that from time to time, after the execution of this Agreement, they will each make, do or execute all such further and other acts, documents, assurances and things as may be required to give full force and effect to this Agreement.