Effective as of August 13, 2004 until replaced.
This agreement (the “Agreement”) describes the terms and conditions under which Groton Enterprises Ltd., doing business as The Six Stars Club (“Six Stars”) will arrange and schedule various personal services (the “Services”) or purchase certain goods (the “Goods”) for you from independent third party service providers (each a “Vendor-Partner”) on an as requested basis. This Agreement applies to all Services performed for you (i) for the duration of the term chosen by you on the Membership Agreement, if you have your own Membership Agreement, or (ii) pursuant to the Corporate Member Agreement with that certain “Corporate Member” whereunder you are designated as a ‘Client’ and provided the opportunity to obtain Goods or Services pursuant to this Agreement.
1. Availability. Six Stars will provide Goods or Services to you (a) provided the requested Good or Service is able to be performed or procured within the greater Houston area, (b) provided your account with Six Stars is not delinquent, and (c) so long as Six Stars is able to find a Vendor-Partner (as defined herein) willing to provide the requested Goods or Services. Upon receipt of your request to have a Good or Service provided, Six Stars will use reasonable efforts to contact a Vendor-Partner and request the Goods or Services on your behalf, but does not promise that any Vendor-Partner will be able to respond in a timely manner, or at all, and you accept and understand that each Vendor-Partner is independent of Six Stars and that Six Stars has no control over the manner in which a Vendor-Partner performs or provides any Service for you.
2. Security Code and Use of Goods or Services. Your account will have a Security Code associated with it when you may change your Security Code at any time by contacting Six Stars. You accept full responsibility for the use and protection of your Security Code and accept full responsibility for all Goods or Services provided in conjunction with the use of your Security Code by you or third parties to whom you have made the Security Code available. In connection with your request for Goods or Services, Six Stars may request Security Code which must be provided. Six Stars may refuse to provide any Service if the your Security Code is not provided. You agree not to use the Goods or Services for any unlawful or abusive purpose or in a way that creates or risks damage to Six Stars' business, reputation, employees, facilities, third parties, including but not limited the public generally.
3. Vendor-Partners. You agree and understand that all of the Goods and Services requested by you may be provided by Six Stars or one or more Vendor-Partners and you agree to pay the rates charged by each such Vendor-Partner according to such Vendor-Partner’s standard rates and upon such Vendor-Partner’s standard terms. All Goods or Services provided by Six Stars or a Vendor-Partner are subject to this Agreement and to the extent that a Vendor-Partner has a standard Terms and Conditions Agreement (a “TCA”), to the extent that the TCA conflicts with this Agreement, the terms of such TCA of such Vendor-Partner shall govern the provision of Goods or Services by such Vendor-Partner. Some Services will be performed for you by Six Stars directly (including, without limitation, delivery services) and in such instances, Six Stars will be considered the Vendor-Partner for such Service as described herein. You agree and understand that the relationship between Six Stars and each Vendor-Partner is that of an independent contractor and NOT of any joint venture, partnership or other similar association. Further, you hereby waive any claim you may have and agree to refrain from making any claim that any relationship other than as independent contractors exists between Six Stars and a Vendor-Partner, or between multiple Vendor-Partners.
4. Payment of Charges.
a. Credit Card Authorization. You hereby authorize charges to be made by Six Stars against the credit card account you provided, as updated by you. No additional notice or authorization shall be required for such credit card charges. Inquiries about, or objections to, any amount invoiced, including those automatically billed to a credit card, must be in writing and must be received by Six Stars no later than 60 days after the invoice is sent; provided, however, all amounts due Six Stars on such invoice, including all disputed amounts, must be paid to Six Stars when due. Upon receipt of a dispute, Six Stars will undertake reasonable efforts to resolve disputes in a timely manner.
b. Charges. The monthly membership dues, initiation fees and other charges are set forth on a “Rate Schedule” which Six Stars may change at any time in its sole discretion and all such charges or fees listed on the Rate Schedule, when incurred by you, will be charged to your credit card. Six Stars will charge your credit card the applicable monthly membership dues. The membership charges DO NOT include the direct cost of any Vendor-Partner Services, including, without limitation, delivery services performed by Six Stars.
c. Vendor-Partner Charges. You agree to pay each Vendor-Partner directly and according to the terms and conditions of each such Vendor-Partner who provided such service. If you prepay for delivery services by purchasing a “Service Plan”, as described on the Rate Schedule, Six Stars will deduct the appropriate amount of time expended to perform your delivery services from the amount of hours purchased by you in the applicable Service Plan.
d. Late Payment/Administrative Fees. Acceptance by Six Stars of checks or ACH drafts shall not constitute a waiver of Six Stars' right to payment by legal tender, and acceptance of late or partial payments or payments marked "Paid in Full" or similar notations shall not waive any rights of Six Stars hereunder. To the extent allowed by applicable law, Six Stars has the right to charge you a fee of up to $25.00 for any check returned for insufficient funds, ACH transfer that is refused or credit card charge that is denied. This fee is not an interest charge and is reasonably related to the actual expense we incur due to your late, returned or denied payment.
5. Changes to the Agreement and TC’s.
Six Stars reserves the right to modify any and all terms of this Agreement, including, but not limited to, the Rate Schedule, rates therein, charges, scope of Goods or Services, membership offers, special promotions and other such programs at any time during the term of this Agreement upon notice to you. You always have the right to terminate this Agreement and you may do so if you do not accept any such changed terms. IF YOU DO NOT NOTIFY Six Stars OF YOUR DESIRE TO TERMINATE THIS AGREEMENT WITHIN 15 DAYS AFTER RECEIVING OUR NOTICE OF A CHANGE, IT WILL MEAN THAT YOU ACCEPT THE CHANGED TERMS AND, ACCORDINGLY, THEY WILL BE BINDING ON YOU AND Six Stars. Acceptance by Six Stars of advance payments by you shall not be deemed a waiver of Six Stars' right to modify its charges, Goods or Services, this Agreement, or other terms at any time and shall not relieve you of your obligation to pay such modified charges. You may obtain the currently effective version of the Agreement online at www.SixStars.com or by contacting Six Stars.
6. Renewals/Membership Changes.
a. If (i) you have your own Membership Agreement, then this Agreement will be renewed automatically for successive 30-day terms after the term of your initial membership term has expired and Six Stars will charge the then current monthly dues to your credit card account on file; or (ii) so long as the Corporate Membership Agreement is in effect and you are designated to have access to Services thereunder, you will have access to Six Stars Goods and Services..
b. If you have your own membership, you may renew or extend the term of this Agreement by providing oral or written notice to Six Stars. If you are provided membership under a Corporate Membership, then upon termination of the Corporate Membership Agreement or if the Corporate Member removes you as a designated client under such Corporate Membership Agreement, you may enter into a personal membership with Six Stars, whereupon your account will be transferred to such personal membership. If you do not transfer your account to a personal membership, you will not be entitled to a refund of any Service Plan charges and an administrative charge may be assessed. Six Stars will make reasonable efforts to stop performance of any Goods or Services you have already requested. If Six Stars is unable to completely avoid the costs of the Goods or Services previously requested by you, you will be responsible for all outstanding costs associated therefrom. If there is any balance owed to you when you terminate this Agreement or the Corporate Membership Agreement is terminated or you are no longer designated as a client under such Corporate Membership, as the case may be, Six Stars will issue you a check for such amount within 60 days after the end of the calendar month of such termination. If there is any amount owed by you to Six Stars upon such termination, Six Stars is hereby authorized to charge your credit card for all outstanding amounts.
7. Term and Termination of Service.
a. This Agreement will commence upon your execution of the Membership Agreement, if you are a member, or the earlier of (i) your request for any Goods or Services hereunder, or (ii) the date noted in the Corporate Membership Agreement and continue for the period designated therein and automatically renew on a monthly basis until terminated as provided below.
b. You or the holder of the Corporate Membership, as the case may be, may terminate this Agreement upon delivery of written or fax notice at any time and for any reason.
c. Six Stars has the right to discontinue Goods or Services and/or terminate this Agreement at any time without notice if the initial term of your membership expires and is not renewed, you default in the payment of any sum hereunder, you breach any obligation or representation herein, you fail to perform any of your obligations at the time and in the manner specified herein or interfere with Six Stars’ business. The remedies in this Section are not exclusive but are in addition to all remedies provided by law. Six Stars' failure at any time to require strict performance by you of any of your obligations shall not waive or diminish Six Stars' right to demand strict compliance with any provisions of this Agreement.
d. In the event of a termination by you or Six Stars pursuant to this Section, you will be responsible for payment of all outstanding balances accrued under this Agreement through the date of termination and such charges shall become immediately due and payable.
e. Six Stars is not obligated to provide any Goods or Services to you if (i) your membership expires, (ii) the Corporate Membership is terminated or expires, (iii) if you are no longer designated as a client by the Corporate Member, (iv) if this Agreement is terminated, (v) if your account is past due, or (vi) if your credit card is refused for any reason.
8. No Warranties. You acknowledge and agree that the Goods or Services provided hereunder are provided on an “AS IS” basis without any warranty from Six Stars whatsoever, and that your sole and exclusive remedy, and Six Stars’ sole obligation to you or any third party for any claim arising out of your use of the Goods or Services, is a refund of three months of membership charges. Six Stars AND ITS THIRD PARTY SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING GOODS OR SERVICES, INCLUDING WITHOUT LIMITATION THE COMPLETENESS, FITNESS, ACCESS TO, SPEED OF OR AVAILABILITY THEREOF, GOODS OR SERVICES PROVIDED OR MADE AVAILABLE HEREUNDER, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE EXPRESSLY EXCLUDED.
9.Limitation of Liability.
a. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, NONPERFORMANCE HEREUNDER BY Six Stars OR A VENDOR-PARTNER SHALL BE EXCUSED IF CAUSED BY ACT OR OMISSION OF A THIRD PARTY INCLUDING EQUIPMENT FAILURE, ACTS OF GOD, STRIKES, EQUIPMENT OR FACILITY SHORTAGE, OR OTHER CAUSES BEYOND Six Stars’ OR THE VENDOR-PARTNERS' CONTROL. NEITHER Six Stars NOR ANY OTHER VENDOR-PARTNER IS LIABLE TO YOU FOR INTERRUPTED SERVICE, OR PROBLEMS CAUSED BY OR CONTRIBUTED TO BY YOU, BY ANY THIRD PARTY OR OTHER ACTIONS OUTSIDE OF VENDOR-PARTNERS DO NOT CONTROL, OR BY ANY ACT OF GOD OR NATURAL DISASTER.
b. YOU AGREE THAT THE MAXIMUM LIABILITY OF SIX STARS OR OF ANY VENDOR-PARTNER UNDER ANY THEORY OF LIABILITY (INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, PERSONAL INJURY, NEGLIGENCE, PRODUCTS LIABILITY, MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR, DEFECT, UNAUTHORIZED ACCESS, OR OTHER FAILURE IN THE GOODS OR SERVICES FURNISHED) ARISING OUT OF OR RELATED TO THIS AGREEMENT IS LIMITED TO THREE MONTHS OF MEMBERSHIP CHARGES IF YOU ARE BILLED MONTHLY OR IF YOU ARE BILLED LESS FREQUENTLY THAN MONTHLY, THE PRORATED AMOUNT EQUAL TO THREE MONTHS OF MEMBERSHIP CHARGES.
c.IN NO EVENT SHALL Six Stars OR ANY VENDOR-PARTNER BE LIABLE TO YOU FOR (i) ANY COST, DELAY OR SPECIAL, INCIDENTAL, GENERAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE GOODS OR SERVICES PROVIDED UNDER THIS AGREEMENT OR (ii) INJURIES TO PERSONS OR PROPERTY ARISING FROM YOUR USE OF THE GOODS OR SERVICES. BOTH PARTIES AGREE THAT NEITHER YOU NOR Six Stars CAN RECOVER PUNITIVE, TREBLE, EXEMPLARY, REMOTE, SPECULATIVE CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, OR ATTORNEY'S FEES FOR ANY CLAIM, CAUSE OF ACTION OR DAMAGES ARISING OR RELATED TO THIS AGREEMENT IN ANY MANNER.
d. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS Six Stars AND EACH VENDOR-PARTNER, AND THEIR RESPECTIVE DIRECTORS, MANAGERS, PARTNERS, OFFICERS, EMPLOYEES, AFFILIATES AND AGENTS FROM AND AGAINST ANY CLAIMS, IRRESPECTIVE OF THE NATURE OF THE CAUSE OF THE CLAIMS, ALLEGING LOSS, COSTS, EXPENSES, DAMAGES OR INJURIES (INCLUDING INJURIES RESULTING IN DEATH) ARISING OUT OF OR IN CONNECTION WITH (i) THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT, WHETHER BROUGHT BY YOU, YOUR EMPLOYEES OR THIRD PARTIES, EVEN IF OCCASIONED BY THE SOLE NEGLIGENCE OF A VENDOR-PARTNER OR Six Stars (ii) CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS AGREEMENT, (iii) CLAIMS BY ANY PERSONNEL OF ANY VENDOR-PARTNER OR OF SIX STARS ARISING OUT OF ANY HARASSMENT, TORT, INJURY OR OTHER CAUSE OF ACTION OF ANY SORT CAUSED OR CONTRIBUTED TO BY YOU OR YOUR EMPLOYEES, AND (iv) THE USE, FAILURE TO USE, OR INABILITY TO USE THE GOODS OR SERVICES, EXCEPT WHERE SUCH CLAIMS RESULT FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF Six Stars. IN THE EVENT YOU HAVE AUTHORIZED Six Stars TO CHARGE AMOUNTS DUE AGAINST YOUR CREDIT CARD ACCOUNT OR BY ACH TRANSFER, THE INDEMNIFICATION AND HOLD HARMLESS AGREEMENT CONTAINED IN THIS PARAGRAPH SHALL EXTEND TO CLAIMS, EXPENSES, LIABILITIES OR DAMAGES ARISING IN CONNECTION WITH USE OR OWNERSHIP OF THE CREDIT CARD OR BANK ACCOUNT OR FROM ISSUER'S OR BANK’S REFUSAL TO PAY AMOUNTS CHARGED TO SUCH CREDIT CARD OR TO SUCH ACCOUNT.
e. You understand and agree that the Goods or Services provided by Six Stars and/or any Vendor-Partner are provided as a convenience; that the payments you provide are based solely on the value of the Goods or Services and are unrelated to the cost of any injury to or damages suffered by you; that Six Stars is not an insurer and that you should obtain and maintain insurance covering personal injury and/or loss of property. YOU HEREBY FOR YOURSELF AND OTHER PARTIES CLAIMING UNDER YOU, RELEASE AND DISCHARGE SIX STARS AND THE VENDOR-PARTNERS AND THEIR RESPECTIVE DIRECTORS, MANAGERS, PARTNERS, OFFICERS, EMPLOYEES AND AFFILIATES FROM AND AGAINST ALL HAZARDS COVERED BY YOUR INSURANCE, IT BEING EXPRESSLY AGREED AND UNDERSTOOD THAT NO INSURANCE COMPANY OR INSURER WILL HAVE ANY RIGHT OF SUBROGATION AGAINST SIX STARS OR THE VENDOR-PARTNERS.
f. THE LIMITATIONS OF LIABILITY AND INDEMNITIES IN THIS SECTION APPLY TO CLAIMS MADE BY YOU, YOUR EMPLOYEES, YOUR CUSTOMERS, AND ANY THIRD PARTIES MAKING CLAIMS HEREUNDER AND SURVIVE TERMINATION OF THIS AGREEMENT.
10. Arbitration. YOU AND Six Stars EACH AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW:
a. Any controversy or claim arising out of or relating to this Agreement, or to any Service provided under or in connection with this Agreement, will be settled by independent arbitration involving a neutral arbitrator and administered by the American Arbitration Association ("AAA"). Arbitration is not a court proceeding. The rules of arbitration differ from the rules of court. There is no judge or jury in an arbitration proceeding.
b. No arbitrator has authority to award relief in excess of what this Agreement provides, or to order consolidation or class arbitration, except that an arbitrator deciding a claim arising out of or relating to a prior agreement may grant as much substantive relief on a non-class basis as such prior agreement would permit.
c. IN THE EVENT THE FOREGOING ARBITRATION REQUIREMENTS ARE EVER DETERMINED NOT APPLY, YOU AND Six Stars EACH WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY TRIAL BY JURY, AND A JUDGE WILL DECIDE ANY AND ALL DISPUTES.
11. Privacy. Six Stars values your privacy and as such will comply with the “Six Stars Privacy Policy”. You understand and agree that in conjunction with employee training, quality control and the provision of Service, Six Stars may monitor and/or electronically record your conversations with call center representatives.
12. No Agency Created. This Agreement does not in any way create the relationship of principal and agent, joint venture, partner, or employer and employee between you and Six Stars, and under no circumstances shall you hold yourself out to be or in any way be considered an agent of Six Stars.
13. Assignment. Six Stars may assign in whole or in part, its rights or duties under this Agreement, without notice to you. You may assign this Agreement only with the prior written consent of Six Stars. Subject to this restriction, this Agreement shall apply to, inure to the benefit of, and be binding upon the heirs, successors, subcontractors, and assignees of the respective parties.
14. Notices. Notices to you shall be deemed given if deposited in the U.S. Mail, addressed to your last known address as shown on the Membership Agreement form or sent by electronic mail to the email address on the Membership Agreement. Notice to Six Stars shall be deemed given when received by Six Stars at the address shown on this Agreement or when you call Six Stars pursuant to the terms herein.
15. Governing Law. This Agreement, including all matters relating to the validity, construction, performance and enforcement hereof, shall be governed by the laws of the state of Texas without regard to its conflicts of laws, promises and applicable federal law or the laws and regulations of the state where Goods or Services are provided. This Agreement is subject to amendment, modification or termination if required by such regulations or laws. Sections 5, 8, 9, 10 and 15 survive the expiration or termination of this Agreement.
16. Other. This represents the final and entire Agreement between you and Six Stars and replaces and supersedes all prior or contemporaneous agreements, representations or contracts, verbal or written. If any part or portion of this Agreement is found invalid, the balance of the provisions shall remain unaffected and shall be enforceable.
17. DTPA DISCLAIMER. AS A MATERIAL INDUCEMENT FOR SIX STARS TO ENTER INTO THIS AGREEMENT, YOU WAIVE, TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, ALL PROVISIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES CONSUMER PROTECTION ACT (“DTPA”) AND EXPRESSLY AGREE, ACKNOWLEDGE, REPRESENT, WARRANT AND COVENANT THAT IN CONSIDERING THIS AGREEMENT AND THIS SECTION 17 THAT YOU (i) HAVE KNOWLEDGE AND EXPERIENCE IN THE SERVICES YOU WILL NEED SIX STARS TO PERFORM AND SUCH KNOWLEDGE AND EXPERIENCE ENABLES YOU TO EVALUATE THE MERITS AND RISKS OF ALL OF THE TRANSACTIONS, OPERATIONS AND SERVICES CONTEMPLATED BY THIS AGREEMENT, AND (ii) HAVE THE ABILITY TO PERFORM THE SERVICES PROVIDED BY SIX STARS OR TO PROCURE SERVICES FROM OTHER PROVIDERS AND ARE NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION RELATIVE TO SIX STARS, BUT THAT YOU HAVE AGREED TO THIS AGREEMENT AND SPECIFICALLY THIS SECTION 17 IN NEGOTIATIONS INVOLVING REAL CHOICE ON YOUR PART.
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