THIS AGREEMENT GOVERNS AND SETS FORTH THE TERMS OF SERVICE FOR CUSTOMERS USE OF DESIGN EVEREST' INC. VIRTUAL SERVICES AS DESCRIBED IN THIS AGREEMENT.
This Agreement is effective between Customer and Design Everest, Inc. (“Design Everest”) as of the date of Customer’s acceptance of this Agreement. Design Everest and Customer are individually referred to as a “Party” and collectively as “Parties” in this Agreement.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR INDICATING ACCEPTANCE OF ANY OF THE SERVICES VIA EMAIL TO DESIGN EVEREST, (3) PLACING YOUR SIGNATURE UNDER THIS AGREEMENT OR (4) USING FREE SERVICES OR PAID CONSULTATIONS, YOU AS THE CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
DEFINITIONS AND DESCRIPTION OF SERVICES
“Agreement” means this “Design Everest Virtual Services terms of Service Agreement” for Virtual Services.
“Services” or “Virtual Services” means Free Consultations and Paid Consultations provided by Design Everest, conducted telephonically or via a video conferencing application (Non-Design Everest Application). “Services” excludes any other services in relation to the architecture, engineering, or construction industry. “Services” are ordered by Customer by way of an Order Form or Design Everest’s online purchasing portal or provided to Customer free of charge (as and when applicable as in terms of this Agreement or as communicated by Design Everest), and made available via the internet by Design Everest. “Services” exclude Content and Non-Design Everest Applications.
“Content” means information obtained by Design Everest from publicly available sources and website content or third-party content providers and made available to any customers through the Services.
“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual or an agent/representative of a legal entity accepting this Agreement on behalf of a corporation or other legal entity, the corporation or other legal entity for which such individual is accepting this Agreement which have sent Order Forms to Design Everest or filled Order Forms.
“Customer Data” means any data including files, plans, any electronic data and information submitted by Customer for the purpose of the Services, excluding Content.
“Free Services” or “Free Consultations” mean virtual or telephonic consultations or Services for the purpose of initial call to collect information that Design Everest makes available to Customer free of charge. Free Services exclude Paid Consultations.
“Paid Consultations” means Services that Design Everest makes available to Customer upon receipt of consideration agreed upon for the Services between Design Everest and Customer. Paid Consultations include various types of consultations conducted by Design Everest:
“Virtual Paid Consultation” means a one-time consultation conducted virtually by Design Everest for a duration up to the time limit prescribed by Design Everest and communicated to Customer, for the purpose of discussing the initial requirements or needs of the Customers regarding an architecture, engineering, or construction project. Customers are required to check with Design Everest about such duration prior to the performance of the Virtual Paid Consultation. The fee for the Virtual Paid Consultation will be determined by Design Everest in its sole discretion depending on the complexity of Customer's plan, project, or needs (“Customized Fee”). Customized Fee shall be communicated to Customer by Design Everest prior to the performance of the Virtual Paid Consultation via email or Order Form. Customized Fee shall be required to be paid by Customer after it has been communicated to Customer by Design Everest. Design Everest shall not be obligated to perform the Virtual Paid Consultation unless the Customized Fee has been received by Design Everest from the Customer prior to the Virtual Paid Consultation.
“Premium Virtual Paid Consultation”: The following will be provided as part of the Premium Virtual Paid Consultation:
Initial telephonic or video conferencing call with Customer to discuss project information, using a Non-Design Everest Application (“Initial Call”).
Code Research and Zoning analysis (“Research”) (including setbacks, heights, floor area, site coverage, etc.) per the Authorities Having Jurisdiction, (i) to specifically determine what is permissible/allowable and what is possible on the site, (ii) to outline of the process and submittal requirements in relation to Customer’s project as applicable, (iii) the preparation of a report with findings based on the above and (iv) a video conference with Customer to review findings (“Call”).
The fee for the Premium Virtual Paid Consultation will be determined by Design Everest in its sole discretion depending on the complexity of Customer’s plan, project, or needs (“Premium Customized Fee”). Premium Customized Fee shall be communicated to Customer either after the Initial Call or prior to the Initial Call. Premium Customized Fee shall be required to be paid by Customer after it has been communicated to Customer by Design Everest. Design Everest shall not be obligated to perform the Research or the Call unless the Premium Customized Fee has been received by Design Everest from the Customer prior to the Research or the Call. Customers are required to check with Design Everest about the duration of the Call prior to the Call.
“Virtual Site Observation/Inspection” means a consultation conducted telephonically or via a video (using a Non Design Everest Application), for a virtual site inspection or virtual structural observation of the construction site, in relation to specific items for ongoing construction for purposes such as the determination of the conformity of the approved plans for an engineering project (which are approved by Authorities Having Jurisdiction and granted permit for the actual construction and execution) with the ongoing construction. The fee for the Virtual Site Observation/Inspection will be determined by Design Everest in its sole discretion depending on the complexity of Customer’s plan, project, or needs (“Inspection Fee”). Inspection Fee shall be communicated to Customer prior to the Virtual Site Observation/Inspection via email or Order Form. Inspection Fee shall be required to be paid by Customer after it has been communicated to Customer by Design Everest via email or Order Form. Design Everest shall not be obligated to perform the Virtual Site Observation/Inspection unless the Inspection Fee has been received by Design Everest from the Customer prior to the Virtual Site Observation/Inspection.
“Non-Design Everest Application” means a Web-based, mobile, offline or other software application functionality that interoperates with Design Everest, that is provided by Customer or a third party.
“Order Form” means an ordering document or email (online order/ receipt email), specifying the Services to be provided hereunder that is entered into between Customer and Design Everest.
“Design Everest Consultant” means those engineers, architects, designers and drafters who may perform the Services provided by Design Everest to Customers, each of whom is responsible under Design Everest for his or her services and compliance in relation to the performance of Services with the requirements applicable to his or her profession and license.
DESIGN EVEREST RESPONSIBILITIES
Provision of Paid Consultations. Subject to the payment of the fee as communicated by Design Everest to Customer, Design Everest will (a) make the Services and Content available to Customer pursuant to this Agreement, and any applicable Order Forms, (b) Use commercially reasonable efforts to make the Paid Consultations available to the Customer pursuant to this agreement, except for: (i) planned downtime (of which Design Everest shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Design Everest’s control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Design Everest’s employees, contractors, consultants, and/or agents), Internet service provider failure or delay, failure of delay caused by Non-Design Everest Application, or denial of service attack, and (c) provide the Services in accordance with the applicable laws and regulations applicable to Design Everest’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement, the and the applicable Order Form.
Protection of Customer Data. Design Everest will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data provided to Design Everest. Those safeguards will include measures taken to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Design Everest and its consultants, agents, suppliers, contractors and/or employees).
Design Everest Personnel. Design Everest will be responsible for the performance of its personnel (including its employees, contractors, consultants, suppliers and agents) and their compliance with Design Everest’s obligations under this Agreement, except as otherwise specified in this Agreement.
Free Services. Design Everest may make Free Services available to Customer at the request of Customer via email or Order Form. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other section of this Agreement, this section shall prevail. Free Services are provided to Customer without charge up to certain limits (time limits or otherwise any limitations whatsoever) as described in the website of Design Everest or as otherwise communicated by Design Everest via email or in writing, and any other documentation and information provided to Customer by Design Everest. Customer is required to check the duration of the Free Consultation from Design Everest. Customer hereby agrees that Design Everest, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that Design Everest shall not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services during Design Everest’s performance of free services or prior to termination of Customer’s access to the Free Services, except as required by law. The Free Services provided to Customer by Design Everest are based on the facts of the specific information, documentation and Customer Data as provided by Customer to Design Everest and is subject to the accuracy of such information. It is hereby agreed by Customer that Customer shall not rely on the general advice provided by Design Everest in any circumstances, for any purpose whatsoever. Design Everest does not assume any liability whatsoever for its advice rendered as part of the Free Services. The information materials and opinions communicated by Design Everest as part of Free Services are for general information purposes only, are not intended to constitute professional advice, and should not be relied on or treated as a substitute for specific advice relevant to circumstances. Free Services are also not and shall not be construed to be substitute for plans, drawings, calculations and any documentation required for the fulfillment of engineering, architectural, design and any other services generally provided by Design Everest.
NOTWITHSTANDING ANYTHING STATED IN THIS AGREEMENT, THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND DESIGN EVEREST SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE DESIGN EVEREST’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $1.00. WITHOUT LIMITING THE FOREGOING, DESIGN EVEREST, ITS PARTNERS, EMPLOYEES, CONSULTANTS, SUPPLIERS AND AGENTS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE OR RELIABLE FOR ANY PURPOSE WHATSOEVER.
Design Everest shall not be responsible for the acts or omissions of the contractor or other parties in relation to the Services.
Design Everest devotes considerable effort to optimizing signal strength and diagnosis deficiencies but is not responsible for the internet or data bandwidth and signal of Customer’s mobile device or any Non Design Everest Application and shall not be liable for any losses or damages that occur as a result of such deficiencies.
USE OF SERVICES AND CONTENT
Disclaimer. Any Paid Consultations are intended to enable Design Everest to understand the nature of a potential client’s or Customer’s requirements and to provide professional opinion as to the possible options forward to meet such requirements, if any. Such opinions are limited by the information provided by Customer and any limitations as a result of virtual access and technological capacities. Paid Consultations are also not and shall not be construed to be substitute for plans, drawings, calculations and any documentation required for the fulfillment of engineering, architectural, design and any other services provided by Design Everest, except as expressly stated to be part of the Paid Consultations.
Customer Responsibilities. Customer shall (a) be responsible for compliance with this Agreement and Order Forms, (b) be responsible for the accuracy, quality, completeness, and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data in relation to the Services, and the interoperation of any Non-Design Everest Applications with which Customer uses Services or Content, (c) use best efforts to prevent unauthorized access to or use of Services and Content, and notify Design Everest promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement.
None of the content on the website of Design Everest or any other communication or marketing materials shared by Design Everest should be considered advice or an endorsement, representation or warranty that any particular solution or Service is safe, appropriate, or effective for Customer’s project needs or any other usage of the Services, since further verification may be required specifically for the project in relation to which Services are sought by Design Everest.
FEES AND PAYMENT
Fees. Customer will pay all fees specified in Order Forms or as communicated by Design Everest in writing, prior to the commencement of the Paid Consultations. Except as otherwise specified herein or in an Order Form, Customer’s payment obligations are non- cancelable, and fees paid by Customer are non-refundable. Design Everest shall not be under any obligation to provide any Paid Consultations without the payment of the fees due and payable for such Services. For the purpose of clarification, the terms and conditions applicable to Paid consultations are the following:
The fee for the Virtual Paid Consultation will be determined by Design Everest in its sole discretion depending on the complexity of Customer’s plan, project, or needs. Customized Fee shall be communicated to Customer by Design Everest prior to the performance of the Virtual Paid Consultation via email or Order Form (Customized Fee). Customized Fee shall be required to be paid by Customer after it has been communicated to Customer by Design Everest. Design Everest shall not be obligated to perform the Virtual Paid Consultation unless the Customized Fee has been received by Design Everest from the Customer prior to the Virtual Paid Consultation.
The fee for the Premium Virtual Paid Consultation will be determined by Design Everest in its sole discretion depending on the complexity of Customer’s plan, project, or needs (Premium Customized Fee). Premium Customized Fee shall be communicated to Customer either after the Initial Call or prior to the Initial Call. Premium Customized Fee shall be required to be paid by Customer after it has been communicated to Customer by Design Everest. Design Everest shall not be obligated to perform the Research or the Call unless the Premium Customized Fee has been received by Design Everest from the Customer prior to the Research or the Call.
The fee for the Virtual Site Observation/Inspection will be determined by Design Everest in its sole discretion depending on the complexity of Customer’s plan, project, or needs (Inspection Fee). Inspection Fee shall be communicated to Customer prior to the Virtual Site Observation/Inspection via email or Order Form. Inspection Fee shall be required to be paid by Customer after it has been communicated to Customer by Design Everest via email or Order Form. Design Everest shall not be obligated to perform the Virtual Site Observation/Inspection unless the Inspection Fee has been received by Design Everest from the Customer prior to the Virtual Site Observation/Inspection.
Invoicing and Payment. Customer will provide Design Everest with valid and updated credit card information, check image, or with a valid purchase order or alternative document acceptable to Design Everest. If Customer provides credit card information to Design Everest, Customer authorizes Design Everest to charge such credit card for all Paid Consultations listed in the Order Form or as mutually agreed upon between Design Everest and Customer in writing as set forth in this Agreement. If the Order Form specifies that payment will be by a method other than a credit card, Design Everest will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Customer is responsible for providing complete and accurate billing and contact information to Design Everest and notifying Design Everest of any changes to such information, at least twenty-four hours prior to the commencement of the Services.
Overdue Charges. If any invoiced amount is not received by Design Everest by the applicable due date, then without limiting Design Everest’s rights or remedies, Paid Consultations will be put on hold until the payment by Customer is received by Design Everest.
Any additional work requested by the Customer must be the subject of a new agreement/ engagement between Design Everest and Customer, and will be based on a separate fee structure and scope of work, and charged at the then going prices in force from time to time as communicated by Design Everest and appropriately determined by Design Everest.
Design Everest represents that all services and/or material described on the Design Everest website, or the Services available by Design Everest and its representatives , are appropriate or available for use only in the State of California and are not available in locations outside the United States or other states and territories within the United States.
WARRANTIES AND DISCLAIMER OF WARRANTIES
REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS Each Party represents that it has validly entered into this Agreement and has the legal power to do so. Each of the Parties represents and warrants that (a) it/he/she has the right to enter into this Agreement and the right to grant the rights granted herein; (b) it/he/she is not a party to any agreement, contract, or understanding that would prevent, limit or hinder its performance of this Agreement; (c) during the term of this Agreement, it/he/she will not enter into any contract, agreement or understanding which is in conflict or which would interfere with the full and complete performance of any of the duties or grants hereunder. Each of the Parties hereby agrees to comply with all applicable laws in the future including but not limited to local, state, federal laws, and regulations as of the effective date or execution of this Agreement and during the term of this Agreement.
CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK. ALL SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. DESIGN EVEREST EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA AND SYSTEM INTEGRATION.
Design Everest makes no warranties, expressed or implied, under this Agreement or otherwise, in conjunction with Design Everest’s services.
The contents of the feasibility report provided to Customer as part of the Premium Virtual Paid Consultation are valid only as on the date of such report. Such validity may be affected by any changes outside the control of Design Everest or the professional consultant (architect or designer), including but not limited to the changes in the applicable code and regulations, or other directives and regulations passed by the local authorities having jurisdiction. Design Everest or the architect/designer/engineer do not take any responsibility for the same.
OPINIONS OF PROBABLE COST (COST ESTIMATES)
Design Everest cannot and does not warrant that bids or negotiated prices will not vary from Customer’s construction budget or from any cost estimate or evaluation prepared or reviewed by Design Everest. Any estimate prepared or reviewed by Design Everest as part of the Services represents its judgment as a design professional. The parties acknowledge that neither Design Everest nor Customer has control over the cost of labor, materials or equipment; the methods of determining bid prices; or competitive bidding, market or negotiating conditions. Design Everest does not guarantee that proposals, bids or actual project or construction cost will not vary from opinions of probable cost/budget estimate that its professionals may advise about during Free Consultations or Paid Consultations. Design Everest assumes no liability for such variance.
PRIVACY AND COMMUNICATIONS.
As part of providing Customer with the Services, Design Everest may need to provide Customer with certain communications such as email notifications, appointment reminders, service announcements, privacy notices, administrative messages and other communications about the Services (“Communications”). These Communications are considered part of the Services.
PROPRIETARY RIGHTS AND LICENSES
Reservation of Rights. Subject to the limited rights expressly granted hereunder, Design Everest, its affiliates, its licensors and content providers reserve all of their right, title and interest in and to the Services and Content as applicable, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms and this Agreement and the deliverables if provided by Design Everest as part of the Paid Consultations.
License by Customer to Design Everest. Customer grants Design Everest, its employees, affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-Design Everest Applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for Design Everest to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement.
License by Customer to Use Feedback. Customer grants to Design Everest and its affiliates a worldwide, perpetual, irrevocable license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of Design Everest’s services.
Definition of Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the Parties in connection with the evaluation of any additional Design Everest services (besides the Services).
Protection of Confidential Information. As between the Parties, each Party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its employees, affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither Party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates, employees or contractors on a need to know basis, legal counsel and accountants without the other Party’s prior written consent. Notwithstanding the foregoing, Design Everest may disclose the terms of this Agreement and any applicable Order Form to its affiliates, consultants, suppliers or subcontractors to the extent necessary to perform Design Everest’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
LIMITATION OF LIABILITY
Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
Design Everest shall not be liable to the Customer or be deemed to be in breach of the Agreement by reason of any delay in performing or failure to perform any of Design Everest's obligations in relation to the Services if the delay or failure was due to any events, circumstances or causes beyond Design Everest’s control and in such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligations has been delayed or failed to be performed.
TERM AND TERMINATION
Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions by Customer to Services hereunder have expired or have been terminated.
Schedule of Paid Consultations. The schedule of each Service purchased by Customer in terms of this Agreement shall be as specified in the applicable Order Form or communicated by Design Everest in writing via email, unless either Party gives the other written notice (email acceptable) to change such schedule at least two (2) days before the original scheduled date of the Free Consultation or the Paid Consultation scheduled for Customer.
Termination. A Party may terminate this Agreement for cause (i) upon two (2) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Any notice required under this Agreement shall be in writing, addressed to the appropriate Party at its address on the signature page and given personally, by registered or certified mail postage prepaid, or by a commercial courier service. All notices shall be effective upon the date of their receipt.
Design Everest and Customer agree to negotiate any claim(s) or dispute(s) arising out of or related to the Agreement between them in good faith prior to exercising any other provision of this Agreement.
If a claim or dispute between Design Everest and Customer cannot be settled within thirty (30) days by good faith negotiations, Design Everest and Customer agree to submit the claim or dispute to mediation in accordance with the Construction Rules of JAMS.
If the claim or dispute cannot be settled by good faith negotiations or mediation, the Parties will resolve the claim or dispute through binding arbitration administered by JAMS.
In no event shall a claim or dispute be made or sustained if it would be barred by the applicable statute of limitations.
DISCLAIMERS IN RELATION TO VIRTUAL SITE OBSERVATION/INSPECTIONS:
In relation to any Virtual Site Observation/Inspection in terms of this Agreement, the following disclaimers will apply. The Virtual Site Observation/Inspection:
is limited to the areas visible to Design Everest (in its opinion) and shown by Customer during the Virtual Site Observation/Inspection using Non Design Everest Application.
is for the limited purpose of viewing and examining specific areas of the site as mutually agreed prior to the Virtual Site Observation/Inspection.
shall not include inspection of any areas on site which cannot be examined during the Virtual Site Observation/Inspection in the opinion of the engineer.
does not include conditions which may become, or cause, structural deficiencies or defects if not addressed.
are limited to the condition of the structure at the time of the evaluation.
are opinions based on visual evidence of only visually accessible areas.
do not include destructive or invasive testing.
are not technically exhaustive and do not include comprehensive engineering evaluations.
are not a fulfillment of any state or local disclosure requirements
do not include systems or components that are not related to the structure, such as Heating, AC, Electrical, Plumbing, Roofing, etc.
do not include recommendations for improvements or upgrades.
do not include maintenance and/or cosmetic suggestions or recommendations.
do not include warranties or guarantees.
are not a replacement for a buyer’s pre-purchase home inspection.
do not determine the presence or absence of any suspected hazardous substances including but not limited to toxins, carcinogens, noise, and or contaminants in soil, water, and air.
are not for compliance or non-compliance of governing building codes.
do not report on the presence or absence of pests such as wood destroying organisms, rodents, or insects.
do not require any party to enter any area or perform any procedure that may damage the property or present a danger to the engineer or others.
are limited to the areas actually examined by the engineer using virtual means.
In the event Design Everest notices any hazard, risk, or unsafe conditions during a Virtual Site Observation/Inspection or is made aware of any such condition, Design Everest shall notify Customer. If Customer does not rectify the conditions to the satisfaction of Design Everest or its affiliates with immediate effect, Design Everest has the right to inform the relevant local authorities regarding the existence of such conditions.
The responsibility of moving personal items, furniture, equipment, plant life, soil, snow, ice, or debris that obstructs access or visibility of the engineer during the Virtual Site Observation/Inspection shall be of Customer.
The services provided or procured as part of Virtual Site Observation/Inspection by Design Everest will be from an engineering professional. The Virtual Site Observation/Inspection provided by Design Everest shall be consistent with the skill and care ordinarily exercised by such engineers or such professionals at the time, place and circumstances as the services are rendered (Standard of Care).
MISCELLANEOUS CONDITIONS AND DISCLAIMERS.
This Agreement shall be governed by the laws of the State of California. This Agreement and its referenced exhibits represent the entire and integrated agreement between Customer and Design Everest and supersedes all prior negotiations, statements or agreements, either written or oral. The parties may amend this Agreement only by a written instrument signed by both Customer and Design Everest.
In the event that any term or provision of this Agreement is found to be unenforceable or invalid for any reason, the remainder of this Agreement shall continue in full force and effect, and the Parties agree that any unenforceable or invalid term or provision shall be amended to the minimum extent required to make such term or provision enforceable and valid.
Irrespective of any other term in this Agreement, should Design Everest provide construction phase services including Virtual Site Observations/Inspections, Design Everest shall not control or be responsible for: (a) construction means, methods, techniques, schedules, sequences or procedures; or for safety precautions and programs in connection with the work, other than its own acts or the acts of Design Everest’s consultants; (b) for any other party’s errors, omissions or (c) any other party’s failure to complete its work or services in a workmanlike manner and in accordance with the respective project documents. Although Design Everest may observe and discuss potential problems, Virtual Site Observations/Inspections are not construction inspections or a guarantee that there will not be construction deficiencies.
If included in Design Everest’s Services, its review of shop drawings or other contractor submittals is not for the purpose of determining the accuracy and completeness of other information such as dimensions, quantities, and installation or performance of equipment or systems, which are the contractor’s responsibility. Design Everest’s review of any shop drawings or other contractor submittals shall not constitute approval of safety precautions or of any construction means, methods, techniques, sequences or procedures. Design Everest’s approval of any specific items during Virtual Site Observations/Inspections shall not indicate approval of an assembly of which the item is a component.
It is recognized by both Parties that unforeseen conditions may arise during an installation or during construction of the project. Typical unforeseen conditions include, but are not limited to: concealed utilities located in walls or structures to be removed, conditions of existing materials and assemblies that once revealed are damaged or do not meet building codes, other conditions that may exist but are hidden or otherwise not be visible upon a reasonable visual inspection of accessible areas without destructive testing or an invasive investigation, or a requirement imposed by a building code official at his/her discretion. Contingencies for unforeseen conditions such as these are a common part of the design and construction process and Customer assumes the risk of same and Design Everest shall have no responsibility for any costs, expenses, damages or delays arising from or related to any unforeseen conditions.
Nothing in this Agreement shall create a contractual relationship for the benefit of any third party.
To the fullest extent permitted by law, and notwithstanding any other provision in this Agreement, Design Everest, and its officers, members, directors, principals, shareholders, partners, agents, employees and consultants, including its engineers, shall not be liable to Customer or anyone claiming by, though, or under Customer for any and all claims for or alleged entitlement to special, incidental, indirect, or consequential damages whatsoever arising out of, resulting from, or in any way related to this Agreement from any cause or causes, including, but not limited to loss of use, diminution of value, loss of income or economic damages.
Design Everest shall perform the Services as an independent contractor, and nothing contained herein shall be deemed to create any association, partnership, joint venture, or relationship of principal and agent, master and servant, employer and employee between the Parties hereto or any affiliates or subsidiaries thereof, or to provide either Party with the right, power or authority, whether express or implied, to create any duty or obligation on behalf of the other Party.
All express waivers, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason.
A Party’s non-enforcement of any provision shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement.
Customer acknowledges that any deliverables if provided by Design Everest as part of Paid Consultations or Free Consultations will be of a technical nature and Customer may be unable to interpret some or all of such deliverables.
Due to the unpredictability of the design and construction process and the need for information and input from many other project participants, Design Everest cannot guarantee that the Services will be completed within any particular time frame. Design Everest shall have no liability for any claims or damages resulting from Design Everest’s failure to perform pursuant to any pre-determined schedule of performance.
Updates. Design Everest may change these Terms of Service (or any associated policies and documents) at any time at its sole discretion, in whole or part. In the event of any material or substantial change in the terms and conditions, Design Everest may notify Customer by posting an announcement of the changes on its website, through its applications or by email. Customer is expected to periodically check these Terms of Service and request Design Everest for information in writing via email.
Entire Agreement. This Agreement is the entire agreement between Design Everest and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.