HOLOS Service Terms and conditions agreement
These Service Terms and Conditions Agreement (this “Agreement”), is effective as of the date each Party signs the applicable Service Request governed by the terms of this Agreement (the “Effective Date”). This agreement is entered into by and between Holos Collective, a Costa Rican S.R.L. (“Holos”) and the customer entity or individual, as applicable, who signs the Service Request subject to the terms of this Agreement (each a “Customer”). Holos and Customer may be referred to individually as a “Party” or collectively as the “Parties”. The Parties understand this Agreement is a binding Agreement between the Parties.
BY SIGNING THE APPLCIABLE SERVICE REQUEST, CUSTOMER (I) ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT; (B) REPRESENTS THAT CUSTOMER IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPTS THE TERMS OF THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER’S ONLY OPTION IS TO NOT USE THE HOLOS SERVICES.
Background
A. Holos has the capability and capacity to provide certain services landscaping, property management, or other related services outlined in the applicable Service Request; and
B. Customer desires to retain Holos to provide the said services, and Holos is willing to perform such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Holos and Customer agree as follows:
Agreement Terms
Services. Holos shall provide to Customer the services (the “Services”) set out in one or more service requests outlining the applicable Services to be provided to the Customer and signed by each of the Parties (each a “Service Request”).
Holos Obligations. Holos shall: Appoint representatives to the following positions: (i) primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the “Holos Contract Manager”); and (ii) number of employees, contractors, or Holos affiliates that it deems sufficient to perform the Services set out in each Service Request, (collectively, with the Holos Contract Manager, “Provider Representatives”).
Customer Obligations. Customer shall: (a) designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Customer Contract Manager”), with such designation to remain in force unless and until a successor Customer Contract Manager is appointed; (b) require that the Customer Contract Manager respond promptly to any reasonable requests from Holos for instructions, information, or approvals required by Holos to provide the Services; (c) cooperate with Holos in its performance of the Services and provide access to Customer's premises, employees, contractors, and equipment as required to enable Holos to provide the Services; and (d) take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Holos's provision of the Services.
Fees and Expenses.
(a) In consideration of the provision of the Services by the Holos and the rights granted to Customer under this Agreement, Customer shall pay the fees (“Fees”) set out in the applicable Service Request. By submitting and approving a Service Request, Customer is agreeing to pay for the Services according to the rates and prices provided in the applicable Service Request. In addition, Customer is agreeing to cover the payment of a 2.9% credit card processing fee (where applicable) in addition to the fixed fee of $7 per payment transaction in the payment of any Fees due.
(b) For the duration of Services provided under any Service Request, a property services statement which reflects a summary of all Services provided during any calendar quarter on a per-lot basis and the Fees associated therewith will be sent to the email address of Customer on file by the 15th of each month following a calendar quarter-end (i.e. on April 15th, July 15th, October 15th, January 15th); provided, however, in the event any Fees for Services are $1000 or greater at any point in time, Holos shall have the right to immediately submit an invoice to Customer outlining the summary of Services and Fees associated therewith (even if not following a calendar quarter-end). Payment of all Fees for Services rendered will be due within 7 days from Customer’s receipt of the applicable invoice. Reach out to finance@holos.global for additional questions.
(c) Payment to Holos of such Fees and the reimbursement of expenses pursuant to this 4 shall constitute payment in full for the performance of the Services. Customer shall reimburse Holos for all reasonable expenses incurred in accordance with the applicable Service Request. Unless set forth in the applicable Service Request, payment of any Fees for Services shall be deemed as Customer’s full acceptance of the applicable Services.
(d) Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; and to the extent Holos is required to pay any such sales, use, excise, or other taxes or other duties or charges, Customer shall reimburse Holos in connection with its payment of fees and expenses as set forth in this 4. Notwithstanding the previous sentence, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Holos's income, revenues, gross receipts, personnel, or real or personal property or other assets.
(e) All late payments shall bear interest at the lesser of (a) the rate of 1.5% per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Holos for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees, costs, and expenses. In addition to all other remedies available under this Agreement or at law (which Holos does not waive by the exercise of any rights hereunder), Holos shall be entitled to suspend the provision of any Services if the Customer fails to pay any Fees or other amounts when due hereunder.
5. Confidentiality. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement (the “Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this 5; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy. For purposes of this Section 5 only, Receiving Party's Group shall mean Receiving Party, the Receiving Party's affiliates and their respective employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
6. Term, Termination, and Survival. The term of this Agreement shall commence as of the Effective Date and shall continue thereafter under the completion of Services under the applicable Service Request unless sooner terminated pursuant the terms of this Agreement (the “Term”).
(a) Termination for Convenience. Holos may terminate this Agreement and any Service Request, in whole or in part, at any time without cause, and without liability, by providing Customer twenty-four (24) hours written notice; provided, however, Holos will reimburse Customer for any pre-paid Fees provided to Holos for Services not yet rendered by the termination date.
(b) Termination for Cause. Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:
(i) Breaches this Agreement, and the Defaulting Party does not cure such breach within 7 days after receipt of written notice of such breach, or such breach is incapable of cure.
(ii) Becomes insolvent or admits its inability to pay its debts generally as they become due; becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within sixty calendar days or is not dismissed or vacated within 90 calendar days after filing; is dissolved or liquidated or takes any corporate action for such purpose; makes a general assignment for the benefit of creditors; or has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) The rights and obligations of the Parties set forth in this 6(c), and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
7. Disclaimer of Warranties.
(a) ALL HOLOS PROPERTIES AND SERVICES ARE PROVIDED “AS IS.” HOLOS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, HOLOS MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR LOCATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, OR BE FAULT FREE. ALL THIRD-PARTY MATERIALS, INCLUDING THOSE FROM THE CUSTOMER OR HOLOS VENDORS, ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN THE CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
(b) Holos is not responsible for any loss or damage no matter how caused, to any samples, displays, properties, personal effects, or for the loss of equipment, exhibits or other materials left on property present on any property in the area which Holos is providing Services on, around, or near to, and Holos and each of their subsidiaries, affiliates, and its and their owners, parent companies, partners, affiliates, officers, directors, agents, employees, representatives·, successors, and assigns (the “Holos Parties”) disclaims all liability, claims, demands, actions, and causes of action of any kind or nature arising out of or related to any loss, damage or injury, including death, that Customer, including Customer’s agents, representatives, employees, contractors, family members, or other person, or any of Customer’s property may sustain from or in any way related to Customer’s use of the property which Services are performed on or near, or resulting from or in any way related to Customer’s receipt of Service, regardless of whether such liability arises in tort, contract, strict liability or otherwise, and Customer covenants not to sue Holos based on the same.
8. Indemnification. Each Party (the “Indemnifying Party”) shall indemnify, defend, and hold harmless the other Party (the “Indemnified Party”) from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) (“Losses”) incurred by Customer resulting from any third-party Claim (“Third-Party Claim”) arising out of or related to the Indemnifying Party’s gross negligence or willful misconduct. Furthermore, Customer shall indemnify, hold harmless, and, at Holos's option, defend Holos from and against any Losses resulting from any Third-Party Claim arising out of or related to Customer’s (i) use of the Services or Deliverables in a manner not authorized by this Agreement; (ii) use of the Services or Deliverables in combination with equipment other materials not provided by Holos or authorized by Holos in writing; or (iv) modifications to the Services or Deliverables not made by Holos.
9. Limitation of Liability. IN NO EVENT SHALL HOLOS BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT HOLOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL HOLOS'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO HOLOS PURSUANT TO THE APPLICABLE SERVICE REQUEST IN THE 3 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Insurance. During the Term and for a period of 90 days after expiration or termination of this Agreement for any reason, Customer shall, at its own expense, maintain and carry insurance in full force and effect with financially sound and reputable insurers, that includes, but is not limited to, commercial general liability, including bodily injury and property damage and completed operations and advertising liability, which policy will include contractual liability coverage insuring the activities of Customer under this Agreement, and other forms of insurance, in each case with insurers and policy limits reasonably acceptable to Holos. Upon Holos’ request, Customer shall provide Holos with a certificate of insurance from Customer's insurer evidencing the insurance coverage specified in this Agreement. The certificate of insurance shall name Holos as an additional insured. Customer shall provide Holos with 30 days' advance written notice in the event of a cancellation or material change in Customer's insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against Holos' insurers and Holos.
11. Entire Agreement. This Agreement, including and together with any related Service Request, exhibits, and schedules constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The Parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Service Request, the terms and conditions of this Agreement shall supersede and control, unless such Service Request expressly references that it is amending this Agreement and the relevant sections being amended.
12. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address or email set forth on the applicable Service Request subject to this Agreement (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail, or email (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this 12.
13. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
14. Amendments. No amendment to or modification of, or rescission, termination or discharge of, this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
15. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16. Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Holos. Any purported assignment or delegation in violation of this 16 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. Notwithstanding the foregoing, this Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
17. Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by Holos shall be under its own control, Customer being interested only in the results thereof. The Holos shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. The Services must meet the Customer's final approval and shall be subject to the Customer's general right of inspection throughout the performance of the Services and to secure satisfactory final completion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
19. Choice of Law / Arbitration. The Agreement shall be governed by and construed and enforced in accordance with the laws of Costa Rica. Any dispute, controversy or claim arising out of, relating to, or in connection with this Agreement shall be referred to and finally and definitively settled by arbitration administered by the International Chamber of Commerce (“ICC”) pursuant to the Rules of Arbitration of the ICC then in force (“ICC Rules”) (“Arbitration”). The Arbitration shall be conducted in the English language, and the seat of Arbitration shall be New York, NY, USA. The Arbitration shall be heard by a sole arbitrator who shall be jointly appointed by the Parties (“Arbitrator”). If the parties are unable to agree on an Arbitrator within twenty (20) days from date the arbitration is commenced, then the ICC Court shall appoint the Arbitrator in accordance with the ICC Rules. Nothing contained herein shall preclude any party from seeking provisional, interim or conservatory measures (including injunctive relief) from any court of competent jurisdiction. All arbitration proceedings shall be confidential and shall not be disclosed except as, and only to the extent necessary to prepare for or conduct the arbitration hearing on the merits, as required by applicable law, or required in connection with any court application for interim relief or post-arbitration confirmation or enforcement proceedings. Any award rendered by the Arbitrator shall be in writing, be reasoned and determine a final term for compliance with its decision by the parties. The award rendered by the Arbitrator shall be final, non-appealable and binding on the parties and may be entered and enforced in any court having jurisdiction, and any court where a Party or its assets are located (to whose jurisdiction the parties consent for the purposes of enforcing the award). No award or procedural order made in the arbitration shall be published.
20. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
21. Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Customer to make payments to Holos hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, hurricane, pandemic, endemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 3 days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 30 days following written notice given by it under this Section 21, the other Party may thereafter terminate this Agreement immediately upon written notice.