Miscellaneous Nutcracker Agreement

MISCELLANEOUS NUTCRACKER AGREEMENT

WHEREAS, Client Name: desires to engage Contractor Name: to design, fabricate, deliver and, if applicable, install or perform services relating to a decorative Nutcracker sculpture, display, and related components (collectively, the "Nutcracker Work").

WHEREAS, Contractor represents that Contractor has the necessary skill, experience, materials and personnel to perform the Scope of Work described herein and will perform such work in a professional manner consistent with industry standards.

WHEREAS, the parties wish to set forth the terms and conditions under which the Nutcracker Work will be performed, accepted and compensated effective as of Effective Date: .

Scope of Work

Contractor shall perform the services and deliverables described below. Contractor shall incorporate any materials, finishes and installation requirements agreed in writing by the parties. Acceptance criteria and any site-specific requirements must be set forth below.

Deliverables and Milestones

List principal deliverables, milestone descriptions, and expected completion dates. Time is of the essence for milestones identified below where indicated.

Payment Terms

Client agrees to pay Contractor the total contract amount set forth below in exchange for the Nutcracker Work and related services. Unless otherwise specified in a written change order signed by both parties, payments made hereunder are non-refundable except as expressly provided in this Agreement.

Final payment due on or before Final Payment Due Date: or upon acceptance. Late payments shall accrue interest as set forth below.

Term and Termination

This Agreement commences on Start Date: and continues until End Date: unless earlier terminated in accordance with this Section.

Either party may terminate for convenience upon written notice to the other at least Notice Period (days): days prior to the intended termination date. Either party may terminate immediately for material breach if the breaching party fails to cure such breach within thirty (30) days of written notice.

Confidentiality

Each party (the "Receiving Party") shall hold in strict confidence any non-public information disclosed by the other party (the "Disclosing Party") that is designated confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure ("Confidential Information"). Confidential Information shall not include information that is (a) publicly known through no wrongful act of the Receiving Party, (b) rightfully received from a third party without obligation of confidentiality, or (c) independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.

Intellectual Property; Ownership

Unless otherwise agreed in writing, Contractor shall retain ownership of Contractor's preexisting materials and general skills, techniques and know-how used to perform the Nutcracker Work. Upon full payment, Contractor grants Client a nonexclusive, nontransferable license to use the delivered Nutcracker Work for the purposes described in this Agreement. If the parties desire assignment of rights, the parties shall indicate assignment terms below.

Insurance; Indemnification

Contractor shall maintain customary commercial general liability insurance and, where applicable, installation and automobile coverage in amounts sufficient to cover liabilities that may arise from performance of the Nutcracker Work. Contractor agrees to indemnify and defend Client from third-party claims arising from Contractor's negligent acts or willful misconduct in performing the Work, except to the extent caused by Client's negligence or willful misconduct.

Limitation of Liability; Warranties

Contractor warrants that the Nutcracker Work will materially conform to the Scope of Work at the time of delivery and installation for a period of Warranty Period (months): months, subject to normal wear and tear, misuse, modification or exposure to extreme conditions. Except as expressly set forth in this Agreement, Contractor disclaims all other warranties, express or implied. Neither party shall be liable to the other for incidental, consequential, special or punitive damages except for liability arising from gross negligence or willful misconduct.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to its conflict of law principles. The parties submit to the exclusive jurisdiction of the state and federal courts located in that State for disputes arising hereunder.

Entire Agreement

This Agreement, including any exhibits, attachments and written change orders signed by both parties, constitutes the entire agreement between the parties with respect to the Nutcracker Work and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, whether written or oral. Any amendment or waiver must be in writing and signed by an authorized representative of each party.

Miscellaneous

Notices shall be delivered in writing to the addresses set forth above. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect. Neither party may assign this Agreement without the prior written consent of the other, except that a party may assign to an affiliate or successor by merger or sale of substantially all assets.

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