Terms of Service
Cancellation and Reschedule policy
Clients must notify the business of a cancellation or reschedule at least 48 hours in advance. Cancellations made within 48 hours before the consultation will forfeit the 50% deposit fee. If the business cancels an appointment within 24 hours of notice, they may reschedule a new appointment without penalty. Clients may reschedule by emailing everyone@aplusaplusa.com with the subject ‘reschedule design clinic’.
11.1
Definitions
11.1.1 Additional Services: Services not included in Basic Services, but that which may be required for the project and entitle A+A+A to additional compensation.
11.1.2 Basic Services (or Services): The Services to be performed by A+A+A though the Design Clinic in the manner of a one hour consultation session and a custom worksheet.
11.1.3 Brief: Statements and materials assembled by the Client with A+A+A’s assistance to summarize the Client’s initial requirements, to address the Client’s preferences and priorities, and to summarize the impact of context, environment and prevailing legislation at the time of signing this Agreement.
11.1.4 Construction Cost: Costs necessarily incurred by the Contractor in the proper performance of erecting the Works, including: any direct costs carried out by, or on behalf of, the Client; any contingencies for changes in Works or design reserve cost allowances; the cost of any equipment and/or materials provided (as if new) or to be provided by the Client to a contractor for installation during construction of the Project; and provision for contractor’s profit and overheads. The Construction Cost shall not include: any applicable tax; design fees; cost of the land; any loss and/or expense payments paid to a contractor; any liquidated damages deducted by the Client; the costs of resolution of any dispute; or the Client’s legal and in-house expenses.
11.1.5 Agreement: The agreement between the Client and A+A+A consisting of all sections in this document and all attachments listed becomes valid upon payment of 50% fee deposit towards the booking of a 60 minute consultation
11.1.6 Client: The person, company, or firm identified as the person registering for services here forward referred to as ‘the Client’.
11.1.7 Consultant: A person, company, or firm appointed by the Client to perform professional services in connection with the Project.
11.1.8 Contractor: The person, company, or firm identified in the Contract for Construction as the party responsible for executing the Works on behalf of the Client.
11.1.9 Fee: The fee structure set out for performance of the Basic Services that is payable to A+A+A as agreed by the Client and A+A+A.
11.1.10 Initial Information: The information as set forth in this agreement, which may be supplemented with information provided in APPENDIX I, if attached.
11.1.11 Instruments of Service: Representations, in any medium of expression now known or later developed, of the tangible and intangible creative work performed by A+A+A and A+A+A’s consultants under their respective professional service agreements. Instruments of Service may include, without limitation, studies, surveys, models, sketches, drawings, specifications, and other similar materials.
11.1.12 Project: The project identified in the Design Clinic consultation
11.1.13 Site: The premises where the Works are to be carried out.
11.1.14 Works: any permanent or temporary structure, building, or fixture constructed or required to be constructed on the Site as part of the Project.
11.2
A+A+A’s
Responsibilities
11.2.1 The Client and A+A+A shall work together in a spirit of mutual trust and cooperation. In relation to the Basic Services, either party shall advise the other upon becoming aware of:
11.2.1.1 A need to vary the Services and/or any other part of this Agreement,
11.2.1.2 Any incompatibility with any of the Client’s requirements in the Brief or between the Brief, any Client’s instructions, or any need to vary any part thereof,
11.2.1.3 Any information or decisions required from the Client or others in connection with the performance of the Services
11.2.2 A+A+A shall provide the Services set forth in this Agreement exercising a reasonable level of skill and care ordinarily provided by designers practicing in the same or similar locality under the same or similar circumstances.
11.2.3 A+A+A shall perform the Services with due regard to any schedule. Notwithstanding the aforesaid, A+A+A does not warrant that the Services or the Project will be completed in accordance with any such schedule or budget, nor does A+A+A warrant that approvals from third parties will be granted.
11.2.4 Client acknowledges that A+A+A is not responsible for Client’s consultants’ errors, omissions, or defaults, or for the technical sufficiency of their Works product.
11.3
Client’s
Responsibilities
11.3.1 Where decisions are required of the Client, such decisions shall be given in a reasonable time to A+A+A to enable A+A+A to perform the Services properly and in a timely manner.
11.3.2 The Client shall commit adequate resources to the Project to enable A+A+A to perform the Services properly and in a timely manner.
11.3.3 Client shall provide prompt written notice to A+A+A if Client becomes aware of any fault or defect in the Project, including errors, omissions, or inconsistencies in A+A+A’s Instruments of Service.
11.4
Fees
11.4.1 The Client must pay to A+A+A, all fees due plus applicable taxes and expenses as specified. 11.4.2 In addition, the Fee Proposal covers only the Services set out in this Agreement. Any additional services required to be performed by A+A+A over and above such Services shall require a new contract, or as otherwise agreed by Client and A+A+A in advance of Additional Services being performed. A+A+A shall advise the Client as soon as practicable that Additional Services have been, or are being, carried out and that, as a consequence, additional fees are payable.
11.4.2 All fees are to be paid within 14 days of invoice. Amounts due under an invoice and not paid within the period stated above will be subject to late-fee of 5% of the invoiced amount per week.
11.4.3 The Client may not deduct, reduce or withhold any payments due to A+A+A under this Agreement by reason of claims or alleged claims against A+A+A.
11.5
Copyrights and Licenses
11.5.1 A+A+A and its consultants, if any, shall be deemed the authors and owners of their respective Instruments of Service, including the documents, drawings and specifications, and shall retain all common law, statutory and other reserved rights, including copyrights. Submission or distribution of Instruments of Service to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the reserved rights of A+A+A and its consultants, if any.
11.5.2 Such limited, nonexclusive license shall, in any case, not extend to the Client developing (whether itself or through a third party) any models or merchandise based on the Instruments of Service. Any such activity would be subject to separate terms, including an entitlement of A+A+A to suitable royalties.
11.5.3 In the event this Agreement is terminated prior to the completion of the Project and Client uses A+A+A’s Instruments of Service to complete the Project, A+A+A shall have no responsibility or liability to Client with respect to any use, modification to or misuse of A+A+A’s Instruments of Service made by Client or anyone acting on its behalf, including, without limitation, any other design professional retained by Client. Client hereby releases and agrees to indemnify A+A+A and its officers, directors, shareholders, partners, principals, employees, agents, successors and assigns for all costs (including reasonable attorney’s fees, expenses and insurance deductibles), claims, damages and liability and defend and hold harmless A+A+A against any claims caused by or resulting from any modification to A+A+A’s Instrument of Service or Client’s use, implementation, interpretation, reuse, misuse, deviation from, addition to or alteration of any of the Instruments of Service prepared by A+A+A in connection with the Project. Use of A+A+A’s Instruments of Service for extensions of the Project or for new projects shall require the prior written consent of A+A+A. If requested by A+A+A, Client shall promptly remove A+A+A’s name from the Instruments of Service where used by Client in accordance with this Section.
11.5.4 In the event Client uses the Instruments of Service without retaining the author of the Instruments of Service, Client releases A+A+A and its consultant(s), if any, from all claims and causes of action arising from such uses, including but not limited to use of, deviations from or changes to the Instruments of Service. Client, to the extent permitted by law, further agrees to indemnify and hold harmless A+A+A and its consultants from all costs and expenses, including the cost of defense (including but not limited to legal fees of counsel for A+A+A’s choice and insurance deductibles), related to claims and causes of action asserted by any third person or entity to the extent such costs and expenses arise from Client’s use of the Instruments of Service under this section. The terms of this section shall not apply if Client rightfully terminates this Agreement for cause. Notwithstanding anything to the contrary contained above, A+A+A may retain copies of all Instruments of Service and may reuse details of such Instruments of Service on other Projects. This indemnity shall survive the expiration or earlier termination of this Agreement.
11.5.5 Except for the licenses granted in this Agreement, no other license or right shall be deemed granted or implied under this Agreement. Client shall not assign, delegate, sublicense, pledge or otherwise transfer any license granted herein to another party without the prior written agreement of A+A+A. Any unauthorized use of the Instruments of Service shall be at Client’s sole risk and without liability to A+A+A and its consultants, if any.
11.6
Publicity
11.6.1 Client will attribute, and ensure proper attribution of, credit to A+A+A for the design services provided by A+A+A and its consultants, if any, for the Project in all marketing and media, whether digital or hard copy, in which the Project is referred to.
11.6.3 A+A+A shall have the right to include photographic or artistic representations of the design of the Project among A+A+A’s promotional and professional materials. However, A+A+A’s materials shall not include Client’s confidential or proprietary information if Client has previously advised A+A+A in writing of the specific information considered by Client to be confidential or proprietary. Client shall provide professional credit for A+A+A in Client’s promotional materials for the Project
11.7
Liability
11.7.1.1 Subject to the remaining clauses of this section, A+A+A’s total liability to the Client under this Agreement (including the performance or non-performance of the Services), whether under the law of contract, in tort, in equity, under statute or otherwise, is limited to the amount A+A+A has been paid by Client under the contract.
11.7.1.2 The extent of A+A+A’s liability, whether in contract, in tort, in equity, under statute or otherwise, is reduced proportionately to the extent that the Client and/or any other person, including any third party, has contributed to the claim, liability, damage, loss or expense and irrespective of whether such contribution arises in contract, tort or otherwise.
11.7.1.3 If A+A+A is liable to the Client, whether in contract, in tort, in equity, under statute or otherwise, A+A+A will only be liable for any reasonable, foreseeable, and fully mitigated damage, loss or expense incurred by the Client, caused directly by a breach of A+A+A’s legal obligations. A+A+A has no liability to the Client in respect of any indirect, consequential, or special losses (including loss of profit, loss of business, opportunity and payment of liquidated sums, or damages under any other agreement).
11.7.1.4 A+A+A has no liability in respect to the Services after the expiration of 1 year from the completion of the Services subject to any compulsory limitation of action provisions which cannot by law be excluded or restricted in any contracts made between the parties.
11.7.1.5 In the circumstances where the Services (as described in Section 10 of this Agreement) are reduced, limited or varied by later agreement or the Agreement is terminated prior to the completion of the Services, A+A+A’s liability will attach only to those services actually performed and then only to the extent that the reduction of that part of the Services has not compromised or not denied A+A+A the opportunity to correct the performed services or to otherwise mitigate the Client’s loss.
11.7.1.6 A+A+A shall not be liable to any person other than the Client, and disclaims responsibility, in tort or otherwise, for any liability, damage, loss or expenses suffered or incurred by such person. In the event that the Project to which the Services relate is leased, transferred, sold, or otherwise disposed of in part or whole to other persons, then the Client warrants that such persons shall be advised in writing that A+A+A accepts no responsibility in law to them. In the event of breach of this clause, the Client and in the case of a company, its directors, shall fully indemnify A+A+A against any claim by such persons, whether such claim is in tort or otherwise.
11.7.1.7 The Client shall indemnify A+A+A against the adverse effects of all claims including claims by third parties which arise out of or have a connection with this Agreement and are made after the expiry of the period of liability referred to in clause 11.7.3.4 subject to any compulsory limitation of action provisions which cannot by law be excluded or restricted in any contracts made between the parties. For avoidance of doubt the indemnity includes claims in negligence made against A+A+A.
11.7.1.8 The Client acknowledges that A+A+A operates through employees, managers, members, officers, agents and sub-consultants and agrees that no reliance has or will be placed on them personally by the Client in connection with this Agreement on the performances of the Services.
11.7.1.9 The limitations of liability as described above will confer, to any extent relevant, a benefit on the employees, members, managers, officers, agents or sub-consultants of A+A+A.
11.7.1.10 If any of these clauses is void as a result of any applicable legislation, or any regulations or rules promulgated thereunder, then A+A+A’s liability for a breach of a condition or warranty is limited to the: Supplying of the relevant services again, or; Payment of the cost of having the relevant services supplied again. through employees, directors, officers, agents and sub-consultants and agrees that no reliance has or will be placed on them personally by the Client in connection with this Agreement on the performances of the Services.
11.7.1.11 The limitations of liability as described above will confer, to any extent relevant, a benefit on the employees, directors, officers, agents or sub-consultants of A+A+A.
11.7.1.12 If any of these clauses is void as a result of any applicable legislation, or any regulations or rules promulgated thereunder, then A+A+A’s liability for a breach of a condition or warranty is limited to the: Supplying of the relevant services again, or; Payment of the cost of having the relevant services supplied again.
11.8
Assignment
11.8.1 Client and A+A+A, respectively, bind themselves, their agents, successors, assigns and legal representatives to this Agreement. Neither Client nor A+A+A shall assign this Agreement without the written consent of the other, except that Client may assign this Agreement to a lender providing financing for the Project if A+A+A is paid in full as of the date of the assignment and Client’s lender agrees to assume Client’s rights and obligations under this Agreement.
11.9
Termination or Suspension
11.9.1 If Client fails to make any payments due to A+A+A in accordance with this Agreement, and such failure continues for more than ten (10) days following Client’s receipt of a written notice from A+A+A advising Client of the same, such failure shall be considered substantial nonperformance and cause for termination or, at A+A+A’s option, cause for suspension of performance of services under this Agreement at the expiration of the ten (10) day period. In the event of a suspension of services, A+A+A shall have no liability to Client for delay or damage caused to Client because of such suspension of services.
11.9.2 The rights to terminate this Agreement shall not prejudice any other right or remedy of either party in respect of any breach or cause of action accrued at the date of termination.
11.10
Claims and Disputes
11.10.1 The parties shall seek to resolve any dispute or difference arising under this Agreement in good faith.
11.10.2 To the extent damages are covered by property insurance, Client and A+A+A waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages. Client or A+A+A, as appropriate, shall require of the contractors, consultants, agents and employees of any of them similar waivers in favor of the other parties enumerated herein.
11.10.3 A+A+A and Client waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination of this Agreement, except as specifically provided.
11.11
General
11.11.1 This agreement shall be governed by the law of the State of New York.
11.11.2 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either Client or A+A+A.
11.11.3 A+A+A’s services do not include services related to detection, reporting, permitting, analysis, or abatement of asbestos, hazardous or toxic materials including molds and fungus (collectively “Hazardous Materials”) at the Project site, and A+A+A shall not have any responsibility or liability for any Hazardous Materials at the Project site.
11.11.4 To the fullest extent permitted by law, Client will indemnify, defend and hold A+A+A harmless from and against any third party claims, loss, liability, damages, costs and expenses (including reasonable attorneys’ fees, expenses and insurance deductibles) relating to or arising out of Client’s negligence or the negligence, failure, acts and/or omissions on the part of any consultant, vendor, supplier, contractor or agent hired or retained by Client.
11.11.5 If A+A+A or Client receives information specifically designated by the other party as “confidential” or “business proprietary,” the receiving party shall keep such information strictly confidential and shall not disclose it to any other person except: (1) to its employees, (2) to those who need to know the content of such information in order to perform services or construction solely and exclusively for the Project, (3) to its consultants whose contracts include similar restrictions on the use of confidential information, (4) as required by law, or (5) as may be otherwise be publicly available.
11.11.6 In the event any provision of this Agreement is held invalid or unenforceable, such holding shall only apply to such provision and shall not affect or render invalid or unenforceable any other provision of this Agreement.
11.11.7 A+A+A shall be entitled to rely upon the accuracy and completeness of: the information furnished by the Client, and; the Client’s approvals.
11.11.8 Nothing makes ineffective, or reduces, any protection at law from liability which A+A+A is entitled to in the state of territory of the applicable law.
11.11.9 This Agreement supersedes all prior agreements relating to the Services for the Project, and does not apply to any services provided by A+A+A before the formal execution of the Agreement.