This Agreement (“Agreement”) is by and between Eskew Consulting, LLC, a Tennessee Limited Liability Corporation (referred to as “Eskew Studios”), and hereby includes its officers, directors, shareholders and employees) whose business address is 600 W. Iris Dr, Nashville, TN 37204 (“Premises”), and you, the Customer (“Customer”).
For good and valuable consideration, the receipt and sufficiency of which and terms set forth below are hereby acknowledged, accepted and agreed to by Customer and Eskew Studios.
Customer may engage Eskew Studios for services, including but not limited to 1-on-1 consulting, group consulting, event production consulting and management, and styling services, all of which shall hereby be defined as the supply of time, effort, or expertise rendered by Eskew Studios, including manipulation of hair or application of makeup or cosmetics of all kinds (cumulatively, “Services”). Eskew Studios agrees to provide Services for the price and compensation specified at the point of booking and checkout on the Eskew Studios website, unless otherwise evidenced in writing, electronically or otherwise, by Eskew Studios. In addition, Eskew Studios’ stylists shall be supervised by and operating under professionals licensed in cosmetology. Customer agrees to receive Eskew Studios’ Services with the understanding that their individual stylist, defined as any person contracted by Eskew Studios to provide Services to Customer, may not be licensed by any state or entity to provide Services including but not limited to those of a Hair Stylist, Shampoo Tech, Cosmetologist, Esthetician, Makeup Artist, Manicurist or Instructor of any kind for any licensed or non-licensed profession and that Eskew Studios is providing Services only as they relate to the entertainment industry.
2. License. Customer agrees to receive Eskew Studios Services with the understanding that Eskew Studios is not licensed by any state or entity to provide Services including but not limited to those of a Hair Stylist, Shampoo Tech, Cosmetologist, Esthetician, Makeup Artist, Manicurist or Instructor of all kinds for all licensed or non-licensed profession and that Eskew Studios is providing Services only as they relate to the entertainment industry.
3. Non-Solicitation. Customer hereby agrees and states that Services of Eskew Studios were solicited by Customer and, furthermore, that Customer was not solicited by Eskew Studios in any way or at any time.
4. Relationship. The Customer desires to obtain the Services of Eskew Studios on its own behalf, the behalf of a minor for which they are a parent or legal guardian, or the behalf of a company, business or affiliated company (defined as a corporation or other business entity or entities that directly or indirectly controls, is controlled by, or is under common control with the Customer), and Eskew Studios desires to provide consulting Services to the Customer within the terms and conditions in this Agreement.
5. Independent Contractor. In the performance of Services requested by Customer, Eskew Studios shall be an independent contractor and not an employee, partner, or co-venturer of Customer. Eskew Studios is not an agent of, or authorized to transact business, enter into agreements, or otherwise make commitments on behalf of Customer. The foregoing, excluding “Eskew Studios” and replacing with “Customer”, is also agreed to and acknowledged as applicable to the Customer.
6. Services. Customer agrees that Services performed by Eskew Studios shall be performed in the manner, location, timing, and extent that Eskew Studios deems appropriate and shall be done so in Eskew Studios’ sole control and discretion.
7. Compensation. Customer agrees Eskew Studios may charge Customer’s payment instrument at the time and for the full amount that Customer purchases Eskew Studios Services using the Eskew Studios website, whether deposit or full amount according to the options available to Customer through the Eskew Studios website and related checkout.
8. Refunds. Customer will be refunded in full only for the Services Customer cancels only using the Eskew Studios website for Services Customer cancels only during the allowed cancellation period referenced only on the Eskew Studios website for within the event details for which Customer purchased Services. Cancellation must be transacted by Customer using the functions provided on the Eskew Studios website. Otherwise, Customer irrevocably and unequivocally agrees to not be refunded regardless of whether Services were rendered.
9. Term; Termination; Amendment. This Agreement is binding upon Customer and exists into perpetuity beginning on the date of the purchase of Services. Customer understands and agrees that these terms may be amended by Eskew Studios from time to time if delivered electronically, posted on an Eskew Studios website, supplied directly by Eskew Studios personnel, or posted in or on the Premises.
10. Severability; Enforcement. In case one or more of the provisions or parts of a provision contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision or part of a provision of this Agreement; and this Agreement shall, to the fullest extent lawful, be reformed and construed as if such invalid or illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum extent possible. Without limiting the foregoing, if a provision (or part of provision) contained in this Agreement shall for any reason be held to be excessively broad as to duration, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the fullest extent compatible with then existing applicable law.
11. Remedies Cumulative: No Waiver. All remedies of Eskew Studios hereunder are cumulative and may, to the extent permitted by law, be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed to be an election of such remedy or to preclude the exercise of any other remedy. No failure on the part of the Eskew Studios to exercise and no delay in exercising, any right or remedy, hereby shall operate as a waiver thereof; nor shall any single or partial exercise by Eskew Studios of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by Eskew Studios of a breach of any provision of this Agreement by Customer shall not operate or be construed as a waiver of any subsequent breach of the same or any other provision hereof. If (a) Customer shall default in any of the covenants of this Agreement, or (b) Customer shall default in the payment when due of any indebtedness of Customer to Eskew Studios arising from this Agreement or independently of this Agreement, then, to the extent permitted by applicable law, Eskew Studios shall have the right to exercise any one or more of the following remedies; (a) to sue for or move to arbitration for and recover all payments due per any of the covenants of this Agreement, (b) to terminate this Agreement, and/or (c) to pursue any other remedy at law, equity or equality. Notwithstanding any other action which Eskew Studios may legally take, Customer shall be and remain liable for the full performance of all obligations on the part of Customer to be performed under this Agreement. All such remedies are cumulative, and may be exercised concurrently or separately.
12. Disclaimer of Warranty. ESKEW STUDIOS WILL NOT BE LIABLE TO CUSTOMER OR OR THIRD PARTIES RELATED IN ANY WAY TO CUSTOMER FOR CLAIMS OR DAMAGES OF ANY KIND, OTHER THAN A REFUND OF CUSTOMER’S PURCHASE PRICE PER THE TERMS OF THIS AGREEMENT, RESULTING FROM ANY TECHNOLOGY GLITCH, INABILITY TO PROVIDE SERVICES, ACT OF GOD, PUBLIC ENEMY, RIOT, STRIKE, INSURRECTION, WAR, UTILITY SERVICE INTERRUPTION, ACT OR OMISSION OF ESKEW STUDIOS, REQUISITION OR ORDER OF GOVERNMENTAL BODY OR AUTHORITY, COURT ORDER OR INJUNCTION, OR ANY CAUSE BEYOND THE CONTROL OF ESKEW STUDIOS. ESKEW STUDIOS MAKES NO WARRENTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE SERVICES, ITS MERCHANTABILITY, AND ITS FITNESS FOR ANY PARTICULAR PURPOSE. ESKEW STUDIOS FURTHER DISCLAIMS ANY LIABILITY WHATSOEVER FOR LOSS, DAMAGE, OR INJURY TO CUSTOMER OR THIRD PARTIES AS A RESULT OF ANY DEFECTS IN THE PREMISES AND SERVICES. ESKEW STUDIOS SHALL NOT BE LIABLE IN ANY EVENT TO CUSTOMER FOR ANY LOSS, DELAY, OR DAMAGE OF ANY KIND OR CHARACTER RESULTING FROM DEFECTS IN, OR INEFFICIENCY OF, SERVICES AND PREMISES. SPECIAL CONSIDERATION REGARDING SERVICES: BECAUSE SATISFACTION WITH SERVICES IS SUBJECTIVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY SERVICES PROVIDED BY ESKEW CONSULTING, LLC ARE PROVIDED "AS IS" WITHOUT WARRANTIES, CONDITIONS, REPRESENTATIONS OR GUARANTIES OF ANY KIND, EITHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE. CUSTOMER BEARS THE ENTIRE RISK AS TO THE RESULTS, QUALITY AND PERFORMANCE OF THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AN ESKEW STUDIOS AUTHORIZED REPRESENTATIVE OR CONTRACTED THIRD PARTY SHALL CREATE A WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
13. Indemnification. Customer assumes all responsibility for and shall defend, indemnify, and hold harmless Eskew Studios, its agents, assistants, staff, officers, employees, and contracted third parties from all claims, actions, suits, proceedings, costs, expenses, damages, and liabilities of any kind, including attorneys fees, arising out of, connected with, or resulting from this Agreement, or all Customer purchases or use of, in any way, Services and Premises, including but not limited to any physical or mental injury or allergic reactions developed as a result of makeup, hair, or other products applied. This indemnification includes reasonable attorney fees, brought on account of any injuries or damage, or loss (real or alleged) received or sustained by any person, persons, or property, arising out of Services and Premises provided under this Agreement or Eskew Studios' failure to perform or comply with any requirements of this Agreement including, but not limited to any claims for personal injury, property damage, or infringement of copyright, patent, or other proprietary right. Eskew Studios reserves the right to retain any funds paid to Eskew Studios by Customer under this contract until such suits, action or actions, claim or claims for injuries or damages as aforesaid shall have been settled and satisfactory evidence to that effect furnished.
14. Force Majeure. Eskew Studios shall be excused from any delay or failure in performance required hereunder if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, insurrection, laws proclamations, edits, ordinances or regulations, strikes, lock-outs or other serious labor disputes, riots, earthquakes, floods, explosions or other acts of nature. The obligations and rights of Eskew Studios so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, Eskew Studio’s respective obligations hereunder shall resume. In the event the interruption of Eskew Studio’s obligations continues for a period in excess of sixty (60) days, Eskew Studios shall have the right to terminate this Agreement upon sixty (60) days’ prior written notice to the Customer.
15. Other Terms. Eskew Studios reserves the right to refuse Services, and access to or removal from, Eskew Studio’s Premises any Customer at any time for any reason, at the sole discretion of Eskew Studios.
16. Grievance. Customer agrees to notify Eskew Studios first with any claim of dissatisfaction with Eskew Studios products, Services, Premises, or performance under this Agreement. Customer agrees to give Eskew Studios thirty (30) days from the day each claim is communicated to Eskew Studios to address each claim before communicating this claim to any other party or disclosing information in any way related to the claim orally or using any media, medium or technology. If Customer breaches this section or any other part of this Agreement, Eskew Studios reserves the right to seek and enforce injunctive relief upon and punitive damages from Customer.
17. Non-Disparagement. For the purposes of this Agreement, Customer agrees not to, directly or indirectly, in any capacity or manner, make, express, transmit, speak, write, verbalize or otherwise communicate in any way (or cause, further, assist, solicit, encourage, or support any third party to participate in any of the foregoing), any remark, comment, message, information, declaration, communication or other statement of any kind, whether verbal, in writing, electronically transferred or otherwise, that is intended or would reasonably be construed to be derogatory or critical of, or negative toward, or to attack, criticize, speak ill of, impugn the character or honesty, integrity, morality, abilities, or business acumen of, defame, disparage, damage, or harm the reputation or good name of, or lead to unwanted or unfavorable publicity to Eskew Studios, including but not limited to any of its products, services, business practices, its business or operations, or current or former officers, affiliates, subsidiaries, successors, assigns, management, directors, equity holders, employees, attorneys, agents, third party contractors, consultants, or their respective businesses. Customer agrees to be liable with respect to the covenants and remedies contained in this provision and will take reasonable steps to prevent and will not knowingly permit any of their respective employees or agents to do the same. In case of breach of this clause, the Customer agrees to pay US$1000.00 to Eskew Studios per occurrence. Customer agrees and acknowledges that this Non-Disparagement provision is a material term of this Agreement, the absence of which would have resulted in Eskew Studios and Customer refusing to enter into this Agreement. Customer agrees not to reveal, disclose, incorporate, base other works or materials upon, discuss, include or otherwise involve any proprietary or confidential information, or any information that would reasonably be considered proprietary or confidential, including but not limited to all Eskew Studios business practices, to any other party. Notwithstanding the foregoing, nothing in this provision or elsewhere in this Agreement shall prohibit either party from making any statement or disclosure required under applicable laws; provided, that Customer must provide written notice to Eskew Studios at least thirty (30) days prior to making any such statement or disclosure.
18. Arbitration of Disputes. All disputes, claims, and questions regarding the rights and obligations of the parties under the term of this Agreement are subject to arbitration. Either party may make a demand for arbitration by filing such demand in writing with the other party within (120) days after the dispute arises. Subsequently, arbitration shall be conducted by three arbitrators acting under the rules of commercial arbitration of the American Arbitration Association.
19. Prevailing Party. In the event of any dispute arising out of any of the terms and conditions of this Agreement, the prevailing party is entitled to recover from the other reasonable costs and expenses, including attorneys’ fees and court costs, incurred by the prevailing party in exercising any of its rights or remedies hereunder or enforcing any of the terms, conditions, or provisions hereof.
20. Notices. Each notice, request, or demand given or required to be given pursuant to this Agreement shall be in writing and shall be deemed sufficiently given if emailed to the opposing party’s email address.
21. Jurisdiction. This Agreement shall be deemed to have been made in the State of Tennessee. Tennessee state law (exclusive of any choice of law principles) shall govern this Agreement. Customer consents to the jurisdiction of the state or federal courts serving Davidson County, Tennessee for the resolution of any disputes arising under this Agreement.
22. Assignment. This Agreement may not be assigned by any party without the express written consent of Eskew Studios.
23. Rules of Construction. The language in all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against either party. Section headings in this Agreement are for convenience only and are not to be construed as a part of this Agreement or in any way limiting or amplifying the provisions hereof. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identifications of the person or persons, firm or firms, corporation or corporations may require.
24. Headings. Headings and subheadings are for convenience only and shall not be deemed to be a part of this Agreement.
25. Survival. This Agreement supersedes all prior agreements, written or oral, between Customer and Eskew Studios relating to the subject matter of this Agreement.
26. Authority. Both parties warrant that they have the authority to enter into this Agreement and that entering into this Agreement is not restricted or prohibited by any existing agreement to which each are a party to.
27. Entire Agreement. This Agreement constitutes the complete agreement and sets forth the entire understanding and agreement of the parties as to the subject matter of this Agreement.