TERMS AND CONDITIONS

Article 1 – Definitions and General Provision

1.1   Scope.    This Agreement shall be between the parties identified on page one of this document to whom this document is

addressed to (CLIENT) and Architectural Resource Consultants (ARC) (collectively the “Parties”) establishing the standard terms and conditions for this project.

1.2   Other Included Parties.    The terms “ARC”, and “CLIENT” include each party’s authorized representatives, officers, directors,

shareholders, and employees.

1.3   Days or Time   Time periods refer to calendar days, unless otherwise stated.

1.4   Effective Date.    The effective date of this Agreement shall be the date as identified on page one of this Agreement.

Article 2 – ARC’s Responsibilities

2.1   ARC’s Scope of Services   ARC's services consist of those services performed by ARC and its consultants as set forth in this

proposal/contract between the Parties.

2.2   ARC’s Excluded Services.    Work not detailed and specified in the scope of services for the project in this proposal/contract

between the parties shall be considered additional services, and shall be invoiced to CLIENT separately at ARC's standard applicable hourly rate as described in Exhibit “A”.

2.3   Information.    ARC shall indicate to CLIENT the information needed for rendering services hereunder, and CLIENT shall provide

to ARC such information as is available to CLIENT. CLIENT recognizes that it is impossible for ARC to assure the sufficiency of such information, either because it is impossible to do so, or because of errors or omissions which may have occurred in the assembling of the information. Accordingly, CLIENT waives any claim against ARC and agrees to defend, indemnify and hold ARC harmless from any claim or liability for injury or loss allegedly arising from errors, omissions, or inaccuracies in documents or other information provided to ARC by CLIENT and their consultants.

2.4   Standard of Services.    ARC will utilize its best efforts to maintain acceptable performance of services contracted for, but ARC

makes no warranties, express or implied, including warranty of merchantability or fitness for a particular purpose.

2.5   Schedule.    ARC acknowledges that timely performance of their services is an important element of this Agreement. ARC will strive

to perform its professional services in a timely manner consistent with sound professional practices.

2.6   Limitations of Construction Responsibilities.    ARC shall not have control over, or charge of, and shall not be responsible for,

construction means, methods, schedules, or delays, or for safety precautions and programs in connection with the Work.

Article 3 –Use of Documents and Data

3.1   Client’s Ownership.    Except where provided elsewhere in this agreement, CLIENT shall have, upon payment of the related fees

and costs, ownership of the documents and any other deliverables provided by ARC and a transferable nonexclusive license to use those instruments of service for constructing, marketing and maintaining the Project, it being the intention of the parties that CLIENT have full and fair use of ARC’s instruments of service for all purposes consistent with the success of the Project.

3.2   ARC Ownership.    ARC’s standard details, component designs, general notes and specification provisions are, and shall remain,

ARC’s proprietary information.

3.3   “As-Built” Plans and Area Calculations.    ARC, as the author, shall retain ownership of any and all “as-built” documents and area

calculations. CLIENT shall be granted a license for the use of these documents for the project as described in the future proposals/contracts between the Parties.

3.4   Client Termination of Agreement.    If CLIENT terminates this Agreement for other than good cause, then any and all licenses

granted pursuant to this Agreement shall likewise be terminated unless other arrangements are agreed to.

3.5   Unauthorized Alteration.    If CLIENT causes or allows the unauthorized alteration to or deviation from, the premature use or the

reuse of ARC’s instruments of service without ARC’s express consent, then any and all liability arising out of or related to such alteration, deviation, premature use and/or reuse shall be assumed by CLIENT and waived by CLIENT as against ARC; all originals and copies of the instruments of service shall be returned to ARC without delay; and CLIENT shall to the fullest extent allowed by law release and indemnify ARC and its affiliated entities and individuals from and against any and all claims, costs, losses and/or liability of any and every kind whatsoever, even in situations involving one or more indemnitees' "active negligence" or "design defect," provided only that this indemnification shall not apply to any indemnitee in situations involving that indemnitee’s sole negligence or willful misconduct. Also, in the event of unauthorized reuse, CLIENT shall pay a reuse fee equal to the fee pursuant to this Agreement.

3.6   Limits of Use.    Use of each other’s Documents or Data by the other is limited to purposes related to the Project. ARC and

CLIENT shall not make changes to each others’ Documents or Data without written permission of the other.

Article 4 – Fees, Expenses and Payments

4.1   Time of Payment.    ARC shall submit invoices every two (2) weeks unless otherwise required in the Agreement. All invoices are

due and payable upon receipt. Invoices not paid after fifteen (15) calendar days of original invoice date shall be considered past due. ARC may impose an interest charge amounting to 1.5% of the past due balance for each month or fraction thereof that the past due amount remains unpaid. Payment is due regardless of the status of any other payment to the CLIENT of any amounts owed to the CLIENT by any other parties.

4.2   Accounting Records.    Records of Reimbursable Expenses and expenses pertaining to Services performed on an hourly basis

shall be available to CLIENT or CLIENT’s authorized representative at mutually convenient times. 

4.3   Payment if Project Cancelled.    If the PROJECT is canceled or put on hold, ARC shall be entitled to payment from CLIENT for all

time and expenses incurred to date of receipt of written notice to cease work, regardless of stage of completion of work.

4.4   Expenses.    Expenses incurred by ARC shall be set forth in the invoices. CLIENT shall be responsible for reimbursing ARC for all

expenses incurred, which shall be invoiced to CLIENT at cost plus 10%.

4.5   Effect of Past Due Invoice.    In the event that any invoice is past due, ARC may discontinue, withhold or suspend services to

CLIENT or cancel this Agreement. If it becomes necessary for ARC to retain a collection agent or an attorney to collect any past due invoice, then CLIENT shall be responsible for all fees and costs arising from or relating to such collection efforts, in addition to any past due amounts and interest charges.

Article 5 – Claims and Disputes

5.1   Arbitration.    The parties shall attempt to resolve all disputes arising out of this agreement in a spirit of cooperation without formal

proceedings. Any dispute that cannot be resolved (other than the collection of money due on unpaid invoices) shall be subject to arbitration upon written demand of either party. Arbitration shall take place in Orange County, California, through the American Arbitration Association in accordance with its Rules. The prevailing party shall be entitled to recover reasonable attorney's fees and costs. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

5.2   Indemnification   CLIENT understands and acknowledges that ARC is an outsource architectural service. ARC’s fees and rates

are for outsource architectural services only and not for design and/or administration of the PROJECT. In light of the limited ability of ARC to affect the risks inherent in the Project, CLIENT shall release and indemnify ARC and ARC’s subconsultants, if any, and their affiliated entities and individuals, to the fullest extent allowed by law from and concerning any and all claims, costs, losses and/or liability of any and every kind or cause whatsoever related to the Project to which they, or any of them, may be subjected through no active fault of their own. CLIENT acknowledges that ARC assumes no responsibility for design or code compliance, and assumes no responsibility for any errors or omissions relating to the PROJECT.

5.3   Limitation of Liability.    In light of the disparity between ARC's fee and the potential liability for problems or alleged problems with

the Project, CLIENT agrees to limit the total aggregate liability concerning or related to the Project of ARC and ARC's consultants, if any, and its and their respective affiliated entities and individuals, on any and all legal and equitable theories and concerning any and all kinds and causes of losses, to the fullest extent allowed by law as to CLIENT and the Project’s contractor(s) to the amount of the greater of $50,000, or ARC's fee received pursuant to this Agreement.

5.4   Waiver of Claims Against Individuals.    CLIENT and ARC both acknowledge that each is a business entity, and that neither intends

that either’s involved individuals should be subjected to personal exposure for the risks attendant to the Project. Therefore, any and all remedies with either party and its affiliated entities and individuals have or might have concerning the Project and/or this Agreement shall be sought against only the other’s business entity or affiliated business entities and waived as to the affiliated individuals, and in no event shall damages or indemnification concerning this Agreement and/or the Project ever be sought against either party’s affiliated individuals. 

5.5   Waiver of Consequential Damages.    ARC and CLIENT each waive any right to claim or to recover any consequential damages

from the other concerning any breach or alleged breach of any duties or obligations pursuant or related to this Agreement or the termination of this Agreement.

Article 6 – Termination

6.1   Termination by Either Party.    This Agreement may be terminated by either party upon not less than seven (7) days written notice

should the other party fail substantially to perform in accordance with the terms of this Agreement. ARC may terminate this Agreement for convenience upon not less than seven (7) days written notice.

6.2   Compensation.    If this Agreement is terminated through no fault of ARC, ARC shall be compensated for Services performed and

Reimbursable Expenses incurred prior to termination.

Article 7 – Miscellaneous Provisions.

7.1   Marketing   CLIENT represents and warrants to ARC that CLIENT has authority and right to provide information and documents

pertaining to the PROJECT. CLIENT agrees to allow ARC to make reference to projects worked on for CLIENT for the purpose of marketing.

7.2   Confidentiality of Client Documents.    ARC agrees to take reasonable steps to maintain the confidentiality of the documents

received from CLIENT and identified as “Confidential” and not disclose same except on as may be required by Law.

7.3   Non-Competition.    CLIENT agrees not to recruit, hire or contract with any ARC staff for a period of three years from the date of

the most recent contract with ARC without the express written consent of the President of ARC. The parties expressly acknowledge that any violation of this provision will result in damages to ARC which may be difficult or impossible to establish and/ or prove in a court of law. Accordingly the parties stipulate and agree that in the event of any violation of this provision, ARC shall be entitled to receive the sum of $100,000 as liquidated damages.

7.4   Notices.    All notices may be sent by fax or first class mail to the address or fax number most recently provided and shall be

effective upon transmission or mailing.

7.5   Modification of Terms.    The terms and conditions of this Agreement are not subject to addition, change or modification unless

such change, addition or modification is made in writing by a duly authorized representative of ARC. No addition, change or modification made as herein provided shall void this Agreement.

7.6   Entire Agreement.    This Agreement is complete and contains all of the rights, privileges and obligations of the parties hereto and

shall replace and supersede all prior negotiations, proposals, understandings, agreements, whether verbal, written or otherwise, if any, including letters of intent and proposals for services between CLIENT and ARC concerning the Project.

7.7   Severability.    If any provision or portion of this Agreement shall become or shall be held by a court of competent jurisdiction to

be illegal, null, void or otherwise unenforceable for any reason, the remaining provisions or portions of this Agreement shall remain in full force and effect and not be affected thereby.

7.8   Drafted by All.    This Agreement shall not be construed in favor of or against any party hereto, but rather, shall be construed as if

all parties hereto have jointly and mutually negotiated and prepared this Agreement.

7.9   Successors and Assigns.    Neither party shall assign this Agreement or any right or cause of action arising out of this Agreement

or the performance of obligations hereunder without the written consent of the other.

7.10  Third Party.    Nothing contained in this Agreement shall create a contractual relationship with, or a cause of action in favor of, any

third party.

7.11  Perpetuity.    This agreement shall remain binding on ARC and CLIENT until the completion, to the satisfaction of ARC and Client,

of all aspects of the project as described in the future proposals/contracts between the Parties and / or upon the express written agreement of ARC and CLIENT that this agreement shall no longer be binding on the Parties.

United States

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