Terms & Conditions
This MAINTENANCE AGREEMENT (“AGREEMENT”) is made as of the date above by and between iNX Building Maintenance Solution, Inc. (“iNX”) and (COMPANY NAME) (“CLIENT”).
WHEREAS: iNX is in the business of providing general commercial janitorial services including cleaning, floor care, carpet cleaning, supply restocking, supply sales, and providing janitorial labor; and iNX desires to supply CLIENT with such services as outlined in the attached Scope of Work Schedule upon the terms described in this Agreement. WHEREAS: CLIENT desires to obtain janitorial services from iNX for the purpose of keeping its premises properly maintained as outlined in the attached Scope of Work Schedule.
NOW THEREFORE: In consideration of the mutual covenants and obligations set out in this AGREEMENT, the parties agree as follows:
1. Services; iNX Obligations
1.1. Services. iNX shall provide, through its iNX franchises and/or subcontractor, to CLIENT the services (the “Services”) set out on the Scope of Work Schedule, on the terms and conditions set forth therein and at the prices set forth on the Pricing Schedule.
1.2. Service Providers. CLIENT acknowledges that iNX may delegate all Services to be performed hereunder to an iNX franchisee and/or subcontractor designated by iNX in its sole discretion (the “Service Provider”). iNX may change the Service Provider at any time following notice to CLIENT. At the reasonable request of CLIENT, if CLIENT is dissatisfied with the designated Service Provider, iNX will use commercially reasonable efforts to designate a replacement Service Provider at the earliest time it determines to be commercially viable.
1.3. Start Date. iNX shall cause the Services to begin on: ___________________. The Services will not be performed on holidays as listed in the Scope of Work Schedule.
1.4. Location. iNX shall cause the Services to be performed at the following location(s) or at such other location as CLIENT may designate from time to time and iNX may agree to in writing:
(COMPANY STREET ADDRESS)
1.5. Materials Provided. The Service Provider will furnish all equipment, tools and cleaning supplies necessary to perform the Services. The Monthly Cost as set forth on the Scope of Work Schedule does not include trash liners, paper supplies, and toiletries, which can be provided at CLIENT’S expense, at competitive prices as reasonably determined by iNX.
2. CLIENT Obligations
2.1. CLIENT Cooperation. CLIENT agrees to cooperate with iNX and the Service Provider in their performance of the Services and provide access to CLIENT’s premises as required to enable iNX and the Service Provider to provide the Services.
3. Charges & Payment
3.1. Monthly Cost. CLIENT shall pay to iNX the Monthly Cost initialed by CLIENT in the attached Pricing Schedule. CLIENT also agrees to pay iNX for CLIENT-approved Additional Services (as defined in the Scope of Work Schedule) performed and paper supplies or other products delivered to CLIENT, along with any sales or use tax levied by a taxing authority on the value of the services provided or supplies purchased.
3.2. Payment Terms. All amounts due and owing under this Agreement are invoiced monthly in advance and due fifteen (15) days from date billed. A convenience fee of 2.85% may be added for amounts paid via debit or credit card. In the event CLIENT desires to pay amounts due via alternative payment methods, any service or other charges or fees incurred by iNX to accept payment using such alternative payment method shall be treated as amounts due and owing under this Agreement and shall be paid by CLIENT to iNX.
3.3. Late Payment. Late payments will incur interest at the lesser of the rate of one and one half (1.5%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. CLIENT shall also reimburse iNX for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees, legal costs, court costs and collection agency fees and costs. In addition to all other remedies available under this Agreement or at law (which iNX does not waive by the exercise of any rights hereunder), iNX shall be entitled to suspend the provision of any Services without notice if the CLIENT fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.
3.4. Labor-Related Cost Increase. CLIENT acknowledges that in the event of increases or changes to the laws regarding labor-related issues, including, but not limited to minimum wage statutes and paid medical leave laws, mandated by federal, state, county, municipal, or other government agencies that affect iNX’s costs of providing Services hereunder, iNX may need to increase the Monthly Cost. Should this occur, iNX will provide notice to CLIENT thirty (30) days prior to the effective date, and CLIENT agrees to accept such increases or changes unless notice of termination is provided to iNX pursuant to Section 6.3.3 of this Agreement.
3.5. Monthly Cost Modifications. From time to time, as the parties may agree, the Monthly Cost may be increased or decreased to reflect changes due to modifications in the attached Scope of Work Schedule. Such modifications will be binding only if agreed to in writing, including by e-mail communication, and signed or acknowledged, in the case of e-mail communication, by both parties.
3.6. Holidays. Credits for holidays, as listed in the Scope of Work Schedule, are pre-determined and given as part of the Monthly Cost stated in the attached Pricing Schedule, and no other adjustments will be made for those holidays. If CLIENT requires cleaning on listed holidays, an additional charge shall apply for such services.
3.7. Payment Remittance. Payment by check can be sent to:
iNX Building Maintenance – Dept. C210
PO Box 509015
San Diego CA 92150-9015
4. Business Relationship
4.1. Independent Contractor. The parties expressly agree that iNX, the Service Provider, and their employees and representatives are not and shall not be deemed to be employees or agents of the CLIENT during the term of this AGREEMENT and are independent contractors. As a result, iNX will not be within the protection or coverage of CLIENT’S workers’ compensation insurance or any other insurance and no withholding of Social Security, income, payroll, or other federal, state or local taxes or other deductions shall be made from the sums agreed to be paid to iNX. All such sums are contract payments and not wages.
4.2. Non-Solicitation. CLIENT agrees that it will not employ or contract with any iNX employee, the Service Provider, or any employee of the Service Provider during the Term or for one hundred eighty (180) days after the termination of this AGREEMENT, without iNX’s written consent.
5. Limited Warranty on Services.
5.1. iNX shall use commercially reasonable efforts to cause the Services to be provided in a professional and workmanlike manner substantially in accordance with this AGREEMENT. iNX DOES NOT MAKE ANY WARRANTIES EXCEPT FOR THAT PROVIDED IN THIS SECTION. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
5.2. iNX’s sole and exclusive liability and CLIENT’s sole and exclusive remedy for breach of this warranty shall be in accordance with Section 6.2.
6. Term of Agreement; Termination
6.1. Term. The term of this AGREEMENT will be for one (1) year from the date the Services are scheduled to begin (the “Initial Term”) and will continue thereafter on a month-to-month basis.
6.2. Termination. This AGREEMENT may be terminated:
By either party for non-performance, breach of the warranty set forth in Section 5.1 or other material breach of this AGREEMENT; provided that the terminating party must give the other party written notice specifying in detail the nature of the breach, and the non-terminating party will have fifteen (15) days after receipt of the notice in which to cure the breach to the reasonable satisfaction of the terminating party. If the breach is not
satisfactorily cured at the end of the fifteenth (15th) day, the terminating party must notify the non terminating party, in writing, of the failure to satisfactorily cure the breach, and the AGREEMENT will terminate fifteen (15) days from the date of such notice of the non-terminating party’s failure to satisfactorily cure the breach.
6.3. By CLIENT:
6.3.1. Immediately if the premises where Services are to be performed are destroyed or upon thirty (30) days’ prior written notice if CLIENT vacates the premises; or
6.3.2. Within thirty (30) days of written notice received by iNX from CLIENT requesting termination; or 6.3.3. If iNX increases the fees in the Pricing Schedule as a result of changes to laws regarding labor-related issues, as set forth in Section 3.4, upon thirty (30) days’ written notice prior to the effective date of such increase.
6.4. By iNX, upon thirty (30) days’ prior notice if iNX and/or its Service Providers are unable to provide the Services required hereunder.
6.5. Termination Upon Failure to Pay. Notwithstanding anything to the contrary in Section 6.2, iNX may terminate this AGREEMENT before the expiration date of the Term on written notice if CLIENT fails to pay any amount when due hereunder and such failure continues for thirty (30) days after CLIENT’s receipt of written notice of nonpayment.
6.6. Obligations Upon Termination. Upon termination, CLIENT shall pay any and all outstanding and unpaid amounts for Services, materials and supplies provided prior to the expiration or termination of the AGREEMENT. In the event the Agreement is terminated pursuant to Section 6 due to iNX’s breach, iNX shall within thirty (30) days after the effective date of termination, refund to CLIENT any fees paid by CLIENT as of the date of termination for the Services, less a deduction equal to the fees for receipt of Services up to and including the date of termination on a pro-rated basis.
6.7. Time is of the Essence. Time is of the essence for the notices required under this Section 6. 6.8. Survival. The rights and obligations of the parties set forth in this Section 6 and 5, 7.4, 7.11 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. General Provisions
7.1. Entire Agreement. Both parties agree that they have fully reviewed and discussed the terms of this AGREEMENT, including the attached Scope of Work Schedule and Pricing Schedule, and acknowledge that they constitute the entire agreement of the parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representation and warranties, both written and oral, regarding such subject matter. For the avoidance of doubt, in no event shall the terms and conditions of any marketing materials contemporaneously provided to CLIENT or any purchase order or other form subsequently submitted by CLIENT to iNX become a part of this Maintenance Agreement, and iNX shall not be bound by any such terms and conditions.
7.2. Amendments. Any changes or modification to this AGREEMENT must be in writing and signed by both parties. 7.3. Severability. If any term or provision of this AGREEMENT is 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.
7.4. Notices. If written notice is required under this AGREEMENT, it shall be deemed to be given at the time when the same is deposited, postpaid and certified, with the United States Postal Service or a recognized, common parcel courier providing express, receipted delivery to the address set forth below the parties’ signatures (or to such other address as designated by the parties from time to time).
7.5. 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 rights, 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.
7.6. Assignment. CLIENT shall not assign any of its rights or delegate any of its obligations under this AGREEMENT without the prior written consent of iNX. Any purported assignment or delegation in violation of this Section 7.6 shall be null and void. No assignment or delegation shall relieve CLIENT of any of its obligations under this AGREEMENT. iNX may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of iNX’s assets without CLIENT’s consent.
7.7. Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and permitted assigns.
7.8. Headings. The headings in this AGREEMENT are for reference only and shall not affect the interpretation of this AGREEMENT.
7.9. Force Majeure. Continued performance of the Services may be suspended immediately by iNX and the Service Provider to the extent made impossible by any event or condition beyond the reasonable control of iNX or the Service Provider, including, without limitation, acts of God, fire, flood, labor or trade disturbance, war, riots, civil commotion, compliance in good faith with the requirements of any applicable laws or governmental order (whether or not it later proves to be invalid), widespread unavailability of necessary materials, or other event or condition whether similar or dissimilar to the foregoing (a “Force Majeure Event”). iNX shall give prompt notice to CLIENT of the occurrence of a Force Majeure Event giving rise to any suspension of the Services and of the nature and anticipated duration of such Force Majeure Event, and iNX shall use commercially reasonable efforts to cure the cause of such suspension promptly.
7.10. Attorneys’ Fees. In the event it becomes necessary for either party to file suit against the other to protect its rights under this AGREEMENT, the prevailing party will be entitled to recover reasonable attorneys’ fees as well as court costs and damages as part of any judgment entered in its favor.
7.11. Governing Law; Choice of Forum. This AGREEMENT shall be governed by and interpreted and enforced in accordance with the laws of the State of California, without giving effect to any choice of law or conflict of laws rules or provisions (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of California. Jurisdiction and venue for any suit brought on this AGREEMENT shall be in the federal or state court of the county where the iNX corporate office is then located.
7.12. Counterparts. This AGREEMENT may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this AGREEMENT delivered by facsimile, e-mail or other means of electronic transmission (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) shall be deemed to have the same legal effect as delivery of an original signed copy of this AGREEMENT.