Terms of Service

R. S. STOLL AND COMPANY

General Terms and Conditions for Services

1. Services.
   
   1. R.S. Stoll and Company (“Stoll & Company”) shall provide the services (the “Services”) described under a service estimate (each, a “Service Estimate”) accepted and approved by a customer (“Customer”), which, upon execution, will be incorporated and made part of these General Terms and Conditions for Services. The Service Estimate, together with these General Terms and Conditions for Services, shall collectively be referred to herein as the “Agreement.”
   2. Customer acknowledges and agrees that Stoll & Company may use subcontractors and consultants to perform the Services to be provided under the Agreement.
   3. Stoll & Company may represent, perform services for, and contract with other additional customers, persons, or companies as Stoll & Company, in its discretion, deems fit.

1. Fees and Expenses.  As consideration for Stoll & Company’s performance of the Services, Customer agrees to pay Stoll & Company the fees set forth in the Service Estimate (the “Fees”). The Fees are exclusive of taxes, levies, duties, governmental charges and expenses (with the exception of any Stoll & Company’s income taxes), which amounts will be billed to and paid by Customer. In addition to the Fees, Customer agrees to reimburse Stoll & Company for all of Stoll & Company’s other expenses reasonably incurred by Stoll & Company in connection with its performance of the Services.

2. Billing and Payment. Stoll & Company shall issue invoices to Customer pursuant to the timetable set forth in the Service Estimate.  Customer will pay invoices in U.S. dollars within thirty (30) days of the date of Stoll & Company’s invoice or upon completion of the Services if a credit card is on file unless otherwise stated in the Service Estimate. Payments must be made by wire transfer, certified check, bank check, credit card, or such other method as may be agreed upon by Stoll & Company. Customer shall have no right of offset or withholding under the Agreement. Any amounts not paid by Customer when due shall be subject to interest charges, from the date due until paid, at the rate of one and one-half percent (1.5%) per month, or the highest interest rate allowable by law (whichever is less), payable monthly. If any amounts due to Stoll & Company from Customer becomes past due for any reason, Stoll & Company may at its option and without further notice withhold further Services until all invoices have been paid in full, and such withholding of Services shall not be considered a breach or default of any of Stoll & Company’s obligations hereunder or under any Service Estimate.
3. Warranty. Stoll & Company warrants that that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with generally accepted industry standards and practices. Stoll & Company shall comply with all statutes, ordinances, regulations and laws of all international, federal, state, county, municipal or local governments applicable to performing the Services hereunder.

LIMITATION OF WARRANTY. THE WARRANTY SET FORTH IN THIS SECTION 4 IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. STOLL & COMPANY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF THE SERVICES, OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF ANY AMOUNTS PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES.

4. Indemnification. Each party (the “Indemnifying Party”) agrees to indemnify, defend and hold the other party and its affiliates and their respective officers, directors, employees and agents harmless from and against all third-party claims, losses, liabilities, damages, expenses and costs, including attorney’s fees and court costs, arising out of the Indemnifying Party’s (i) gross negligence or willful misconduct or (ii) material breach of any terms of the Agreement. The Indemnifying Party’s liability under this section shall be reduced proportionally to the extent any act or omission of the other party, or its employees or agents, contributed to such liability. The party seeking indemnification shall provide the Indemnifying Party with prompt written notice of any claim and give complete control of the defense and settlement to the Indemnifying Party, and shall cooperate with the Indemnifying Party, its insurance company, and its legal counsel in its defense of such claim(s). This indemnity shall not cover any claim in which there is a failure to give the Indemnifying Party prompt notice to the extent such lack of notice prejudices the defense of the claim.

SECTION 5 STATES THE ENTIRE OBLIGATION AND THE EXCLUSIVE REMEDIES WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.

5. Limitation of Liability; Actions. IN NO EVENT SHALL STOLL & COMPANY BE LIABLE UNDER THIS AGREEMENT TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. STOLL & COMPANY’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO STOLL & COMPANY UNDER THIS AGREEMENT. THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THE AGREEMENT.

NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.

6. Collection and Use of Information.  In providing the Services, Stoll & Company may collect information regarding Customer’s property, including image files or computer-generated or scanned data, model, serial number, and biographical data such as reference, dial color, etc.  Customer agrees that Stoll & Company may use such information to provide, analyze, enhance, and maintain its Services for its other customers and its third-party business partners.  Customer further agrees that Stoll & Company may use and disclose such information in a deidentified form with Stoll & Company’s business partners, including but not limited to, uploading such deidentified information to any authentication analysis software of Stoll & Company’s business partners. 
7. Term and Termination:
   
   1. Term: The term of the Agreement shall be until such time as the Services are complete, commencing upon execution of the Service Estimate by Customer, unless sooner terminated as set forth herein.
   2. Termination for Breach. Either party may terminate the Agreement at any time in the event of a breach by the other party of a material covenant, commitment or obligation under the Agreement that remains uncured: (i) in the event of a monetary breach, ten (10) calendar days following written notice thereof; and (ii) in the event of a non-monetary breach after thirty (30) days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either party. Termination shall be in addition to any other remedies that may be available to the non-breaching party.
   3. Termination Without Cause: The Agreement be terminated by Stoll & Company, for any reason with or without cause, upon ten (10) days’ prior written notice to the Customer.
   4. Obligations Upon Termination. Termination of the Agreement for any reason shall not discharge either party’s liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Customer shall pay Stoll & Company for all Services rendered prior to the effective date of termination. Upon the termination, Stoll & Company shall promptly return to Customer materials or other property of Customer which are in Stoll & Company’s possession or control.
8. Relationship of the Parties. The relationship of the parties hereto is that of independent contractors. Nothing in the Agreement, and no course of dealing between the parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the parties or between one party and the other party’s employees or agents. Neither party has the authority to bind or contract any obligation in the name of or on account of the other party or to incur any liability or make any statements, representations, warranties or commitments on behalf of the other party, or otherwise act on behalf of the other. Each party shall be solely responsible for payment of the salaries of its employees and personnel (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
9. Force Majeure. Neither party shall be liable hereunder for any failure or delay in the performance of its obligations under the Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, pandemics, epidemics, local disease outbreaks, public health emergencies, communicable diseases, quarantines, terrorism, acts of God, or other similar or different occurrences beyond the reasonable control of the party so defaulting or delaying in the performance of the Agreement, for so long as such force majeure event is in effect. Each party shall use reasonable efforts to notify the other party of the occurrence of such an event within five (5) business days of its occurrence, which notice shall include a description of the force majeure event and an estimate of the length of time such event will delay or prevent performance hereunder.
10. Partial Invalidity. In the event that any part or portion of the Agreement is deemed to be invalid, illegal, or otherwise unenforceable: (1) the parties shall use all reasonable efforts to negotiate in good faith to amend the term to eliminate any such invalidity, illegality, or unenforceability to the extent practically possible, taking into full account their original intent when entering into the Agreement; and (2) the remaining provisions of the Agreement shall continue in full force and effect.
11. Publicity: Stoll & Company shall be free to disclose to the public that Customer is a client of Stoll & Company, and may use Customer’s name to make such statement.
12. Assignment. Customer may not assign, delegate or otherwise transfer the Agreement or it obligations hereunder, in whole or in part, without the prior written consent of Stoll & Company, with such consent not to be unreasonably withheld or delayed. Any purported assignment or delegation in violation of this section shall be null and void. No permitted assignment or delegation will relieve Customer of its obligations under the Agreement, and as such, Customer shall remain primarily liable in connection therewith. Stoll & Company shall be entitled to assign or otherwise transfer the Agreement, in whole or in part, without the prior consent of Customer.
13. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the address set forth in the applicable Service Estimate or as otherwise designated by a 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 (return receipt requested, postage prepaid). Except as otherwise provided in the Agreement, a notice is effective only (1) upon receipt by the receiving party; and (2) if the party giving the notice has complied with the requirements of this section.
14. Survival. Following the termination of the Agreement, any provision set forth herein which, by its very nature, is intended to survive any expiration or termination hereof, shall so survive, including without limitation, the provisions respecting ownership of work product, confidentiality, indemnification, limitation of liability, non-solicitation, accrued payment obligations, and governing law and venue.
15. Waiver. No waiver of any term or right in the Agreement shall be effective unless in writing, signed by an authorized representative of the waiving party. The failure of either party to enforce any provision of the Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of the Agreement thereafter.
16. Governing Law; Venue. The Agreement shall be governed by the laws of the State of Ohio without regard to its conflict of laws principles. The parties hereby agree that any action arising out of the Agreement will be brought solely in any state or federal court located in Montgomery County, Ohio. Both parties hereby submit to the exclusive jurisdiction and venue of any such court.
17. Attorneys’ Fees. If either party incurs any legal fees associated with the enforcement of the Agreement or any rights hereunder, the prevailing party shall be entitled to recover its reasonable outside attorney’s fees and any court, arbitration, mediation, or other reasonable litigation expenses from the other party.
18. Collection Expenses. If Stoll & Company incurs any costs, expenses, or fees, including reasonable attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due it under the Agreement, Customer agrees to reimburse Stoll & Company for all such costs, expenses and fees.
19. Counterparts. The Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. An executed signature page delivered via facsimile transmission or electronic signature shall be deemed as effective as an original executed signature page.
20. Headings; Construction. The headings/captions appearing in the Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. The Agreement is the result of negotiations between the parties and their counsel. Accordingly, the Agreement shall not be construed more strongly against either party regardless of which party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting party.
21. Entire Agreement; Modification. The Agreement (along with any attachments incorporated herein) sets forth the entire agreement between the parties with respect to its subject matter and supersedes any prior agreement or communications between the parties, whether written, oral, electronic, or otherwise, relating hereto. No change, modification, amendment, or addition of or to the Agreement shall be valid unless in writing and signed by authorized representatives of the parties. Each party hereto has received independent legal advice regarding the Agreement and their respective rights and obligations set forth herein. The parties acknowledge and agree that they are not relying upon any representations or statements made by the other party or the other party’s employees, agents, representatives or attorneys regarding the Agreement, except to the extent such representations are expressly set forth in the Agreement.

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