Last Updated: July 13, 2021
(a) These terms and conditions (these "Terms") apply to the purchase and sale of goods (“Goods”) and services (“Services”) provided by Lark & Soul, LLC (referred to as "us", "we", or "our" as the context may require) to customer (“Customer” or “You”).
(b) The accompanying order confirmation (the “Order Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, there Terms shall govern.
(c) These Terms prevail over any of Customer's general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms.
(a) Services. We shall perform the Services described on the Order Confirmation in accordance with these Terms. We shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet our obligations under this Agreement.
(b) Delivery of Goods. The Goods will be delivered within a reasonable time after the receipt of Customer's purchase order, subject to availability of finished Goods. We shall not be liable for any delays, loss, or damage in transit.
3. Customer's Obligations and Acknowledgements.
(a) Customer shall:
(i) cooperate with us in all matters relating to the Services and provide such access to Customer's premises, and such office accommodation and other facilities as may reasonably be requested by us, for the purposes of performing the Services;
(ii) respond promptly to any requests to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for us to perform Services in accordance with the requirements of this Agreement;
(iii) provide such Customer materials or information as we may request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and
(iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
(b) Customer Acknowledges:
(i) that colors often look different online or in photographs than they do in physical world, and that Lark & Soul, LLC cannot be held accountable for any nonconformity or deviation between the materials your order and the materials you receive.
4. Customer's Acts or Omissions. If our performance of our obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, we shall not be deemed in breach of our obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
5. Change Orders.
(a) If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. Within a reasonable time after such request, we will provide a written proposal to Customer of:
(i) the likely time required to implement the change;
(ii) any necessary variations to the fees and other charges for the Services arising from the change;
(iii) the likely effect of the change on the Services; and
(iv) any other impact the change might have on the performance of this Agreement.
(b) Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a "Change Order"). Neither party shall be bound by any Change Order unless mutually agreed upon in writing.
6. Fees and Expenses; Payment Terms.
(a) In consideration of the provision of the Services by us and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Confirmation.
(b) Customer agrees to reimburse us for all reasonable travel and out-of-pocket expenses incurred by us in connection with the performance of the Services.
(c) Customer shall pay all invoiced amounts due to us on receipt of our invoice.
(d) In the event payments are not received by us within 30 days after becoming due, we may:
(i) suspend performance for all Services until payment has been made in full.
Shipments; Delivery; Title and Risk of Loss.
(a) We will arrange for shipment of the Goods to you. Please check the individual product page for specific delivery options. You will pay all shipping and handling charges specified during the ordering process. Shipping and handling charges are reimbursement for the costs we incur in the processing, handling, packing, shipping, and delivery of your order.
2. Returns and Refunds and Warranty. For defective returns, please refer to the manufacturer's warranty included with the Goods. To obtain warranty service for defective products, please follow the instructions included in the manufacturer's warranty. For the avoidance of doubt, WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
YOU AFFIRM THAT WE SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE MANUFACTURER'S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS TO YOU.
3. Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
OUR SOLE AND ENTIRE MAXIMUM LIABILITY , FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS AND SERVICES YOU HAVE ORDERED THROUGH OUR SITE.
The limitation of liability set forth above shall: (i) only apply to the extent permitted by law and (ii) not apply to (A) liability resulting from our gross negligence or willful misconduct and (B) death or bodily injury resulting from our acts or omissions.
4. Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
5. Governing Law and Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Massachusetts or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Massachusetts.
6. Assignment. You will not assign any of your rights or delegate any of your obligations under this Agreement without our prior written consent. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves you of any of your obligations under this Agreement.
7. No Waivers. The failure by us to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Lark & Soul, LLC.
8. Relationship of the Parties. The relationship between the parties is that of independent contractors. 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.
9. No Third-Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any person other than you.
10. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
11. Photographs & Publicity. You agree to allow us and/or our representatives to photograph the Project during all stages of the Services including when the Project is complete. You agree that we are allowed to use the photographs for all business purposes, including, but not limited to, press, marketing, publications, website, social media, advertising and print. We will not disclose your name or address or any other identifiable information without your prior consent. If you or your contractors or representatives photograph or otherwise document the Project, we shall be given credit as the designers if documentation is publicized in any form. Ownership of all concept designs, drawings, renderings, specifications and illustrations prepared by us or submitted to you as part of our services, and all intellectual and moral rights of any kind thereto, shall be owned exclusively by us.
12. Severability. If any provision of this Agreement is invalid, illegal, void or unenforceable, then that provision will be deemed severed from this Agreement and will not affect the validity or enforceability of the remaining provisions of the Agreement.
13. Entire Agreement. This Agreement will be deemed the final and integrated agreement between you and us.