Thank you for your interest in Existing Conditions. These Terms and Conditions govern your use of the products, services, and technologies that Existing Conditions offers, except where we expressly state that separate Terms apply. Please scroll down and read our Terms and Conditions below.
1. SCOPE OF WORK
a. Existing Conditions Surveys (“ECS”) shall undertake work for the client subject to these terms and conditions. Where ECS has issued a proposal to the client regarding the performance of certain services, the services shall be provided in accordance with the final proposal submitted by ECS.
b. ECS shall prepare documents for the client using generally accepted standards and practices prevailing in the industry. ECS shall not be obligated to obtain field data where site conditions may prevent ECS from obtaining data that is not visible, accessible, or safe at the time of surveying.
c. ECS is not an architectural, land surveyor, or engineering entity. None of the documents prepared by ECS for the client shall have any stamping or certification of any trade professionals.
d. Upon delivery, the client shall field verify ECS’s work, and notify ECS within 30 days for any requested revisions and/or updates. ECS shall review the client’s request and, if the updates are within the original scope of work, ECS shall make revisions and redeliver the work to the client. Field verification of drawings by the client shall done prior to any design or construction or any other use.
e. Any use of, or reliance on, all or a portion of a building information model without agreement to protocols governing the use of, and reliance on, the information contained in the model and without having those protocols agreed mutually in writing, shall be at the using or relying party’s sole risk and without liability to the other party and its contractors or consultants, the authors of, or contributors to, the building information model, and each of their agents and employees.
2. COMPENSATION AND PAYMENT
a. ECS may require a deposit for certain services, and shall state the amount of the deposit in the proposal provided to the client. The deposit shall be credited against the total fee proposal and shall be paid before mobilization.
b. The compensation to be paid for services rendered shall be as set out in the Proposal provided by ECS to the client. All billing shall be sent to the client that hires and retains ECS whether or not the client is the owner of the buildings and land where services shall be performed by ECS. ECS shall be paid for its services by the client whether or not the client is the owner of the land and buildings. Unless separately agreed to in writing by ECS, ECS and the client expressly agree that there shall be no condition for payment that the client first be paid by the owner (in instances where the client is not the owner).
c. For projects estimated to take less than thirty (30) days for completion, ECS shall invoice the total amount of fees and expenses due for completed services on or before final document delivery. For projects estimated to exceed thirty (30) days for completion, interim billing shall be sent by ECS to the client.
d. Payment. Payment is due thirty (30) days from the date of any invoice whether such invoice shall be interim or final billing. Unless separately agreed to in writing by ECS, no retainage shall be held by client on any invoices of ECS.
3. ADDITIONAL SERVICES
a. If the client requests changes or additional services during the course of the work, such modifications and additional services shall be subject to additional fees as provided by ECS in an Additional Services Order. The Additional Services Order shall advise the client of any additional fees, expenses and time required to execute the changed or additional services and is subject to all the terms and conditions set forth herein. The additional services order must be signed by the client and provided to ECS within seven (7) days.
b. ECS shall not perform any additional services without a written Additional Services Order signed by the client.
4. PROFESSIONAL LICENSE
a. ECS does not manage construction, or provide architectural, land surveying, engineering or other services for which a professional license is required, and makes no warranty or guarantee of any kind for any of our drawings or deliverables. If ECS recommends that the client to consult with providers of licensed services, the client shall directly consult with such providers and the providers shall not be subcontractors of ECS. Invoices from any providers not directly hired by ECS for the client shall be billed directly by the providers to the client. ECS shall not be responsible for any services and/or invoices provided by the licensed consultants to the client.
b. Any professionally licensed services or other similar services are the sole responsibility of the client. ECS shall have no responsibility or liability for the acts or omissions of any licensed service providers hired by the client, including without limitation, upon the recommendation of ECS. Any warranties or representations of hired licensed service providers shall run directly to the client from the provider. The client shall not rely on ECS for the accuracy of any representation or warranty of those providing licensed services to the client.
a. Unless otherwise agreed to in writing by ECS, ECS and the client agree that each shall maintain commercial general liability insurance and premises liability insurance in the amount of $2,000,000 for each occurrence and such insurance shall be written with an insurance company licensed in the state where the property is located. The client or owner (of building or land) shall name ECS as an additional named insured on its CGL insurance. The insurance of the client (or owner) shall be deemed to be primary and the insurance of ECS shall be deemed to be excess or secondary. Before commencement of the work, the client (or owner) shall provide ECS a certificate of insurance showing that ECS has been named on such insurance as an additional named insured.
6. LIMITATION OF LIABILITY
a. Notwithstanding anything else to the contrary, and except with respect to intentional misconduct, ECS’s total liability for any and all injuries, claims, losses, attorneys’ fees, costs, expenses or damages whatsoever arising out of or in any way related to these terms and conditions or any other agreement concerning the work from any cause or causes, including any indemnification provision, shall not exceed the lesser of ECS's project fee amount and the coverage actually afforded by Consultant’s applicable insurance policy(ies). Under no circumstance, however, will ECS be liable for consequential damages, lost profits, lost revenues, loss of use and loss of reputation arising out of or relating to these Terms and Conditions or any other agreement concerning the work. No principal, officer, director, shareholder, manager, member, partner, trustee, beneficiary, agent, employee, official, joint venturer, consultant, representative, property manager, affiliate or volunteer participant of ECS shall be personally liable under any term or provision of these terms and conditions or any other agreement concerning the work for payment obligations or otherwise, or because of any breach of these terms and conditions or any other agreement concerning the work, the client and/or owner agreeing to look solely to the assets of ECS, for the satisfaction of any liability.
b. To the fullest extent permitted by law, the client agrees to defend and indemnify ECS for any claims brought by third parties for losses, injuries, wrongful death, property damage or any other claim for damages for any alleged acts or omissions of any individual or entity other than ECS.
c. ECS shall not be liable for any delays, interruptions or any damages caused by events beyond its control including delays by the client and/or owner, suppliers or third parties; acts of God, such as severe acts of nature or weather events including floods, fires, drought, tidal waves, tsunamis, earthquakes, lightning strikes, hurricanes, or explosions; war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilization, requisition, embargo, riots, civil war, rebellion, insurrection, or threats or acts of terrorism; ionizing radiation or contamination, contamination by radioactivity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly; pandemics, epidemics, famines, plagues, diseases, or quarantines; acts of governmental authorities such as expropriation, condemnation, curfews, shutdowns, stay-at-home, shelter-in-place, or quarantine orders, travel advisory warnings, curtailment of transportation services or facilities affecting ECS’s ability to perform the work, and changes in laws and regulations; industrial disturbances, riots, strikes, work stoppages, and labor disputes; or unusually severe weather that makes it unsafe or impracticable for ECS to perform its services.
d. ECS shall not provide structural analysis, MEP analysis, or due diligence drawings or documents. Visible and accessible elements shall be modeled for location and size. Further structural or MEP analysis may be required by other providers not under the control or consult of ECS.
e. ECS represents and warrants that its drawings, specifications, surveys, reports, recommendations and other documents prepared for the client and/or owner as part of its services will be reasonably adequate in all respects for their intended purposes, except to the extent that any inadequacies are the result of inaccurate survey control/data provided to ECS by the client and/or owner or any third-party on behalf of the client and/or owner. ECS makes no representations or warranties whatsoever with regard to such survey control/data and the client and/or owner agrees that ECS shall not be responsible in any way for any inaccuracies in such survey control/data. Except to the extent ECS has actual knowledge of a material discrepancy, inconsistency or missing information in the survey control/data, ECS may rely upon the accuracy of such survey control/data provided to ECS by the client and/or owner or any third-party on behalf of the client and/or owner, and shall not be liable based on any inaccuracies not actually known to ECS; and such reliance shall not be a breach of the standard of care applicable to ECS. Nothing in these terms and conditions or any other agreement concerning the services provided by ECS obligates ECS to make any inquiries or investigations as to the accuracy of the survey control/data. No other representation, expressed or implied, and no warranty or guarantee is included or intended in this Agreement, or in any report, opinion, document or otherwise.
f. ECS shall have the right to cure any default, nonconforming service, drawing or material within thirty (30) days of receipt of written notice specifying the default or nonconformity.
7. OWNERSHIP OF WORK
a. Unless otherwise agreed to in writing by ECS, ECS may use the client’s name and the name of the project and a general description of the services provided by ECS with respect to the project in promotional literature and advertising, including without limitation, on any website.
b. ECS shall retain ownership of the survey and documentation process including field notes, progress drawings and models and other materials, methods, tools, equipment, technology, software and other proprietary parts of the process used to generate the final product/deliverable as defined in the scope of services. All of the documents generated by ECS used to prepare the final product for client shall remain the property of ECS. The final product finished 2D CAD drawings, 3D models 3D scan data, and the drawing files associated with the final product shall become the property of the client upon payment in full for all invoices.
a. Subject to the cure provision in paragraph 6(f), ECS or the client may terminate this agreement for failure of the other to fulfill any material conditions under these terms and conditions or any other agreement concerning the services provided by ECS.
b. Regardless of the reason for termination, ECS shall be entitled to compensation for services rendered and work completed up to the date of written notice of termination. All terms hereof which survive termination shall remain in full force and effect.
a. The client shall not assign any rights under these terms and conditions without written consent by ECS and such consent shall not be unreasonably withheld. Any assignment by the client without written consent by ECS shall be null and void.
a. The parties shall use their best efforts and good faith to resolve any and all disputes that may arise in connection with these terms and conditions.
b. If the parties are not able to resolve any such dispute, they shall proceed to nonbinding mediation through the American Arbitration Association (AAA) in Boston, Massachusetts. Either party may demand mediation after thirty (30) days of the start of any such dispute.
c. If the parties are unable to settle their dispute at mediation, then ECS and the client agree to resolve any such dispute by binding arbitration through American Arbitration Association (AAA) in Boston, Massachusetts. The parties agree to follow the rules of the AAA for construction disputes. Either party may file an action to enforce any decision by the AAA with a filing in the Suffolk Superior Court in Boston, Massachusetts.
d. For any collection matter brought by ECS for the payment of fees for services under these terms and conditions (including any claims for expenses), ECS shall be entitled to the award of reasonable attorney’s fees and costs in the event that it is successful in such dispute.
a. These terms and conditions are entered into solely between ECS and the client and shall not create any rights in third parties or create any obligation of the parties to any third party. These terms and conditions shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts without giving effect to any choice-of-law rules.
b. No amendment, modification, or addendum to these terms and conditions shall be effective unless provided in writing and signed by duly authorized officers of both parties. No term or provision hereof will be deemed waived and no breach excused unless such waiver or consent is in writing and signed by an authorized officer of the party claimed to have waived or consented. These terms and conditions, along with the final proposal provided to the client by ECS, constitutes the entire agreement between the parties hereto concerning the matters covered herein and supersedes all prior agreements and or understandings between the parties, whether written or oral concerning the matters addressed herein.
c. It shall be the responsibility of the client to assure ECS that the site for the performing of services shall be safe for the employees and/or representatives of ECS. Prior to commencement of the work by ECS, the client shall inform ECS in writing of any known hazards of the premises where services shall be performed.
4815-4066-6043, v. 1