1. Fresh Paint Services. Fresh Paint agrees to perform the Services as outlined in the Quote which is attached to this Agreement and incorporated herein by reference. The Quote includes a detailed description of the Services Fresh Paint will perform for Client (collectively referred to as the “project”). No additional services beyond the specific Services detailed in the Quote will be provided to Client by Fresh Paint. If Client would like additional services performed by Fresh Pain that are not accounted for in the Quote, then Client and Fresh Paint may amended the Services with a Change Order. Client agrees to provide Fresh Paint with all information reasonably necessary to assist Fresh Paint in performing the Services detailed in this Agreement.
2. Scope of Work. Client must remove all personal property, including, but not limited to: furniture, pictures, paintings, plants and any fragile and/or breakable items from the area where the Service will be performed prior to Fresh Paint’s commencement of the project. Fresh Paint will utilize drop cloths, plastic and tape to contain areas when appropriate. Fresh Paint will provide all services, materials and labor for the project described in the Quote at the worksite. Fresh Paint will not be held liable for damage to any decorative items that remain within the Worksite upon project commencement. All wall substrates and existing surface damage/issues that are pre-existing are not the responsibility of Fresh Paint. Client warrants that he/she owns the property herein described grants Fresh Paint express authorization to access the Worksite to perform the Services. Client further warrants that he/she is authorized to enter into this Agreement.
3. Material and or Labor Provided. Fresh Paint shall provide all services, materials and labor for the project. All samples, drawings, renderings and sketches provided by Fresh Paint to Client will remain the property of Fresh Paint.
4. Payment. Payment shall be made to Fresh Paint Murals, LLC. A deposit of one-third of the total Invoiced price, which is included on the Quote, is due upon Client’s receipt of the Quote and/or execution of this Agreement (the “Initial Deposit”). After Client has paid Fresh Paint the Initial Deposit, Fresh Paint will assign a date and prospective timeframe for the project’s completion. An additional one-third of the total Invoiced price shall be due upon the first day Fresh Paint begins work on the project. Final payment for the remaining one-third of the total Invoiced price and any additional Change Order costs, as described in this Agreement, shall be due in full on the last day Fresh Paint provides services to Client at the Worksite. If any Invoiced amount is not paid when due, interest will be added to all past due amounts at the rate of 18% per annum, or the maximum percentage allowed under the laws of the State of Colorado, whichever is less. Client shall pay all costs of collection, including without limitation, reasonable attorney’s fees and costs.
5. Change Order. Client may make changes or modify the Services as described in the Quote, only in a written “Change Order” which is agreed to and dated by both parties. Such Change Order shall become part of this Contract. Client agrees to pay any increase in fees and costs of the project as a result of any written Change Order.
6. Completion. Upon completion of the project, Fresh Paint and Client will conduct a final inspection of the project. After the final inspection of the project has been completed Fresh Paint will provide Client with a Final Invoice. If Client fails to attend the final inspection of the project, Fresh Paint may inspect the final project on Client’s behalf, and supply Client with a Final Invoice and Notice of Completion.
7. Inspection. Client shall have the right to inspect all Services performed under this Agreement. Any defects and uncompleted items shall be reported by Client to Fresh Paint immediately. Individual perceptions of work can vary. It is Client’s responsibility to discuss any artistic or stylistic issues or concerns with Fresh Paint prior to the project’s completion. Client waives its right and ability to claim any defects and/or uncompleted work after execution of the Final Invoice and Notice of Completion.
8. Insurance. Fresh Paint is fully insured and carries liability insurance. Upon request, Fresh Paint will provide Client with a copy of Fresh Paint’s certificate of insurance.
9. Work Product Ownership. Any copyrightable works, ideas, discoveries, inventions, trademarks or other information (collective “Work Product”) developed in whole or in part by Fresh Paint in connection with the Services will be the exclusive property of Fresh Paint. Upon request, Client will execute all documents necessary to confirm or perfect the exclusive ownership of Fresh Paint to the Work Product. In addition, Client authorizes Fresh Paint to film, photograph, record and edit any likeness or image of the Services and related materials and use Client’s name, likeness, image, and voice. Fresh Paint shall own all right, title, and interest in and to the Video or Photograph, including the recordings, to be used and disposed of without limitation as Fresh Paint shall in its sole discretion determine.
10. Warranty. As with any fine craft that is performed by hand, faux finishes and murals contain irregularities that add to their unique nature. Please expect some variations in work from samples and sketches into the final project. All wall substrates and existing surface damage/issues that are pre-existing are not the responsibility of Fresh Paint. Fresh Paint shall provide the Services and meet its obligations under this Agreement in a timely and workmanlike manner, using knowledge and recommendations for performing the Services which meet generally acceptable standard’s in Fresh Paint’s industry, and will provide a standard of care equal to, or superior to, care used by service providers similar to Fresh Paint. Based on the unique artistic nature of the services provided by Fresh Paint, and Fresh Paint’s inability to control the Worksite after the project’s termination, Fresh Paint cannot warrant the Services’ durability and longevity. However, upon request, Fresh Paint will provide Client with any and all product warranty information Fresh Paint obtains from any product Fresh Paint utilizes when performing the Services.
11. Cancellation. Client may cancel the project and request a partial refund of any payments made pursuant to this Agreement, by giving Fresh Paint 14 days’ prior written notice of cancellation. The amount of such partial refund is based on the sole discretion of Fresh Paint. If Client cancels the project less than 14 days prior to the project’s scheduled commencement date, a 75% cancellation fee shall be deducted from the total amount Client paid Fresh Paint.
12. Acknowledgements of Independent Contractor Status. It is the intention of the parties that Fresh Paint shall be an independent contractor and not an agent, employee or partner of Client. Nothing in this Agreement shall be interpreted or construed as creating the relationship of employer and employee, principal and agent.
13. Collections. In the event that Client fails to make any payment due under the terms of this Agreement, Fresh Paint may elect, in its sole discretion, to submit Client’s past due amounts owed to an independent third party agency for collections. Client consents to the use of a third party collections agency in the event Client should default on any payment due to Fresh Paint under the terms of this Agreement. Client shall pay all collections costs. In the event of Client’s nonpayment, Fresh Paint may pursue any and all remedies available; all such remedies shall be non- exclusive.
14. Remedies. In addition to any and all other rights Fresh Paint may have available according to the laws of the State of Colorado, if Client defaults by failing to subsequently perform any provision or term of this Agreement (including without limitations the failure to make any payment when due), the Fresh Paint may terminate this Agreement by providing written notice to cure default to Client. This notice to cure default shall sufficiently describe the nature of the default and provide Client with 24 hours from the date of the notice to cure the default. In the event Client defaults on any payment obligation under this Agreement and, after the notice to cure default period has expired, Fresh Paint may accelerate any and all outstanding payments provided for in this Agreement as immediately due and payable. Any delay on the part of Fresh Paint in exercising any rights hereunder shall not operate as a waiver of said rights, the acceptance of any payment after its due date shall not be deemed a waiver of the right to require prompt payment when due of all other sums, and that the acceptance of any partial payment after Fresh Paint has declared the past due amount due and payable shall not cure any default of the Client or operate as a waiver of any rights of Fresh Paint hereunder.
15. Mediation. Except as expressly provided otherwise in this Agreement, any dispute, in any way, arising out of or related to this Agreement (including any amendments or extensions), or the breach or termination thereof for more than $7,500.00, shall be addressed first by mediation, and only if mediation is unsuccessful, then through litigation. The parties shall jointly select an experienced mediator to hear the claims. If the parties cannot agree upon a mutually agreeable mediator, then Fresh Paint has the right to select the mediator. This mediation requirement shall not affect or supersede Fresh Paint’s ability to pursue collections for nonpayment of any and all amounts due and owing to Fresh Paint by Client through a third party collections agency, in accordance with and governed by the laws of the State of Colorado.
16. Severability. If any provision in this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, the parties desire and agree that the remaining provisions of the Agreement will nevertheless continue to be valid and enforceable.