EXISTING BUILDING, LLC TERMS AND CONDITIONS
1. Agreement: Existing Building, LLC (hereinafter referred to as “Consultant”) , subject to Client's written acceptance of such Proposal(s)agrees to provide the services described in one or more Proposal(s) (the “Proposal(s)”) for the Client in connection with the project set forth in the Proposal (the “Project”). These Terms and Conditions, together with the Client executed Proposal(s), form the entirety of the agreement between Consultant and Client (the “Agreement”). By executing a Proposal, Client expressly acknowledges that Client has read, understood, and accepts and agrees to all terms outlined in the Agreement. Provided the Consultant’s proposal is deemed acceptable, the Client shall confirm its acceptance of the scope of work, anticipated project timeline, and proposed service fee via email or countersignature.
2. Proposals; Performance of Services: Each Proposal shall specify the scope of work and services to be performed by the Consultant, deliverables, timeline, fees, and any other Project-specific terms. All Proposals shall be subject to and incorporated into this Agreement. In the event of any conflict between the terms of these Terms and Conditions and any Proposal, the terms of these Terms and Conditions shall control unless the Proposal expressly states otherwise with specific reference to the provisions of these Terms and Conditions being modified. Consultant shall deliver services set forth in the Proposal in accordance with the standard of care, skill, and diligence typically practiced by professionals providing similar consulting services under comparable conditions and within the same geographic area at the same time. Consultant expressly disclaims all other warranties, whether expressed or implied of any kind, including but not limited to warranties of merchantability, fitness for a particular purpose, or any other warranty arising by statute or custom. Consultant will use commercially reasonable efforts to meet deadlines mutually agreed upon in writing by the parties, subject to Client's timely provision of necessary information and approvals. Client is responsible for informing Consultant of all pertinent dates and deadlines that may affect the services to be performed under the Proposal(s). It is essential that Client provide this information in a timely manner to enable Consultant to effectively and efficiently fulfill its obligations. Client acknowledges and agrees that the timeline for any deliverables, if any, set forth in a Proposal, can be influenced by numerous factors outside the Consultant’s control, including but not limited to unforeseen site conditions, changes in Client’s requirements, or delays in obtaining necessary information or approvals. Therefore, any timeline provided by Consultant is intended as an estimate and not a guarantee of completion by a specific date.
3. Force Majeure: Consultant shall not be held responsible for delays, damages, or costs resulting from events outside of its reasonable control (“force majeure”). Such events include, but are not limited to, acts of God, severe weather, pandemics, labor disputes, governmental delays, acts of war, unforeseen site conditions, supply chain disruptions, or cyber attacks. In the event of a force majeure, Consultant's timeline shall be extended by at least the duration of the force majeure event, and Consultant shall be entitled to additional compensation for any increased costs resulting from such event. Consultant is entitled to suspend services during such force majeure events.
4. Independent Contractor: The Consultant ‘s relationship with the Client is that of an independent contractor. This Agreement does not create a partnership, joint venture, fiduciary obligation, agency, or employment relationship between the parties, and Consultant shall have no authority to bind or commit Client in any way. Consultant shall perform all services independently and shall not act as an agent of the Client.
5. Limitations on Responsibility: Consultant is not responsible for and expressly disclaims any liability for the actions, omissions, means, methods, techniques, sequences, or procedures of the Client, contractors, subcontractors, or other third parties involved in the Project. Consultant's services do not include supervision or inspection of construction work or the work of any other party unless explicitly stated in the applicable Proposal. Consultant does not supervise construction methods, safety precautions, or compliance with safety standards at the site and shall not be liable for any failures in these areas.
6. Compliance with Laws: Consultant will perform its services in good faith and consistent with the standard of care set forth in paragraph 2 above. While Consultant will make reasonable efforts to comply with applicable laws, codes, and regulations in force at the time the services are rendered, Client acknowledges that interpretation of such requirements may vary and final determination of compliance rests with regulatory authorities.
7. Termination and Suspension of Services:
i.Term: This Agreement shall commence on the Effective Date and continue until all the services set forth in the scope(s) of work in the Proposal(s) are completed, unless earlier terminated in accordance with paragraph 7 (ii), (iii), or (iv).
ii. Termination of Agreement for Convenience: Either party may terminate this Agreement with thirty (30) days’ written notice. Such termination shall result in the termination of all Proposals in effect at the time of termination. However, if Client terminates before the completion of services, Consultant may finalize necessary documentation to preserve its professional reputation. Client shall compensate Consultant for: (i) all services rendered through the termination date, (ii) a pro rata share of fixed-fee services as determined in good faith by the Consultant, (iii) reasonable demobilization costs, and (iv) any non-cancellable commitments made by Consultant in reliance on this Agreement.
iii. Termination of Individual Proposal(s): Either party may terminate an individual Proposal without terminating this Agreement by providing thirty (30) days’ written notice specifically identifying the Proposal to be terminated. Such termination shall not affect the validity of these Terms and Conditions or any other Proposal in effect. Client shall compensate Consultant for services rendered up through the termination date.
iv. Termination of Agreement for Cause: Either party may terminate this Agreement upon five (5) days’ written notice if the other party materially breaches the terms of this Agreement. Termination of an individual Proposal for cause shall not affect the validity of this Agreement or other Proposals unless explicitly stated in the termination notice. Consultant reserves the right to suspend services with three (3) days’ notice if the Client fails to make timely payments or otherwise breaches this Agreement. Consultant shall not be liable for any costs or damages resulting from such suspension.
8. Payment: Invoices are due upon receipt and shall be paid within 30 days. Interest shall accrue on unpaid amounts at the lesser of 1.5% per month (18% per annum) or the maximum rate permitted by Florida law, whichever is less. Payment of invoices shall be made in full without any set off or deductions. If the Client disputes any portion of an invoice, the dispute must be raised in writing within thirty (30) calendar days of the date set forth on the invoice, specifying the disputed amount and reason. Failure to dispute within this timeframe constitutes acceptance of the invoice. Any undisputed portion must be paid promptly, and unresolved disputes will be addressed per the Dispute Resolution provision set forth in paragraph 16.
9. Additional Services: Additional services added to, or changes made to a Proposal must be documented in writing and signed by both parties. Consultant shall be entitled to additional compensation for such services as set forth in the Proposal(s). The Consultant shall not be required to perform any such services unless the parties have agreed on the amount of compensation associated with such additions and changes to the services set forth in a Proposal.
10. Client Obligations: Client agrees to provide Consultant timely, safe, and unrestricted access to the site to perform the services set forth in the Proposal, including necessary security clearances and building access credentials. The Client agrees to provide necessary information, services, and reports at no cost to the Consultant. Consultant is entitled to rely on the accuracy and completeness of these materials but assumes no responsibility for verifying their validity. The Client agrees to indemnify, defend, and hold Consultant harmless from any claims, losses, damages, liabilities, and expenses, including reasonable attorneys’ fees, arising from or related to any inaccuracies or omissions in the information, services, or reports provided by the Client or its representatives or agents.
11. Indemnification:
i. Consultant’s Indemnity: Consultant agrees to indemnify and hold Client harmless from third-party claims to the extent such claims arise from Consultant's proven negligence in performing professional services under this Agreement, except where such claims arise due to the negligence or misconduct of the Client or third parties not under Consultant's direct control. Notwithstanding the previous statement, Client acknowledges and agrees that, despite Consultant’s adherence to professional standards, the performance of services may result in unavoidable damage to the building or site. The Consultant shall not be held liable for such unavoidable damage, provided that the Consultant has exercised reasonable care consistent with industry standards. The Client agrees to hold Consultant harmless from any claims related to such unavoidable damage.
ii. Client’s Indemnity: Client shall, to the fullest extent permitted by law, indemnify and hold Consultant harmless from and against any and all claims, damages, losses, costs and expenses (including reasonable attorneys' and expert fees, interest and court costs) (“Client’s Indemnity Claims”) to the extent such Client’s Indemnity Claims result from the negligent act, error or omission of the Client, its employees, construction managers, contractors, or anyone for whose actions the Client is legally responsible..
iii. Defense Exclusion: Neither party shall be obligated to provide a defense to the other unless otherwise required by law. 12. Insurance: During the term of this Agreement, Consultant will maintain, at its own expense, insurance coverage as follows, subject to standard policy terms, conditions, and exclusions:
• Workers’ Compensation: $1,000,000 per occurrence
• General Liability: $1,000,000 per occurrence
• Professional Liability: $1,000,000 per claim/aggregate
Client is responsible for maintaining its own liability and property insurance. Both parties waive rights of subrogation against each other and their respective officers, directors, and employees to the extent losses are covered by insurance.
13. LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONSULTANT’S TOTAL LIABILITY FOR CLAIMS ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID FOR THE SPECIFIC SERVICES GIVING RISE TO SUCH CLAIMS. NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS OR GOODWILL. CLIENT AGREES FOR ITSELF AND ANYONE CLAIMING BY, THROUGH, OR UNDER IT, INCLUDING ITS SUBSIDIARIES, AFFILIATES, AND SUBCONTRACTORS, AS WELL, AS THEIR RESPECTIVE OFFICERS, SHAREHOLDERS, MANAGERS, SUCCESSORS, AND ASSIGNS, THAT ALL CAUSES OF ACTION, INCLUDING STRICT LIABILITY, CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE SUBJECT TO THIS LIMITATION. THE CLIENT ACKNOWLEDGES THAT WITHOUT THIS LIMITATION OF LIABILITY, CONSULTANT WOULD NOT ENTER INTO THIS AGREEMENT OR PERFORM ANY SERVICES. THIS LIMITATION OF LIABILITY PROVISION IS A LIMITATION AND NOT AN EXCULPATION OF CONSULTANT’S LIABILITY. ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE COMPLETION OF THE SERVICES SPECIFIED IN THE APPLICABLE PROPOSAL, OR SUCH CLAIMS SHALL BE FOREVER BARRED.
In accordance with Florida Statute 558.0035, it is agreed by the parties that any individual employee or agent of Consultant who performs services under this Agreement shall not be held personally liable for any professional negligence, errors, or omissions in the performance of this Agreement. Such liability, if any, shall be solely the responsibility of Consultant, provided that the services are within the scope of the employee's or agent's employment or engagement with Consultant. This provision is intended to ensure that claims for professional negligence are directed exclusively towards Consultant and not its individual employees or agents.
14. Ownership of Intellectual Property: For purposes of this Agreement, “Intellectual Property” means all patents, copyrights, trademarks, trade secrets, know-how, and other intellectual property rights recognized by law. All rights to Intellectual Property owned by Consultant, as well as any updates, modifications, or enhancements to such Intellectual Property shall remain the exclusive property of Consultant throughout the world in perpetuity. All deliverables, designs, software, documentation, and other materials produced during the Project prepared by or on behalf of the Consultant, its employees, contractors, subcontractors, representatives for or related to the services provided in a Proposal, including all Intellectual Property therein (together the “Work Product”), shall remain the property of the Consultant. Consultant shall be deemed the sole and exclusive author and owner of the Work Product and shall retain all common law, statutory, and other reserved rights, including copyrights, throughout the world in perpetuity. Upon execution of the Proposal and payment of all fees due upon signing of the Proposal, Consultant grants Client a non-exclusive, limited, revocable license to use and reproduce the Work Product provided by Consultant to Client solely for purposes related to the Project at the specified location(s) identified in the applicable Proposal, provided Client shall comply with all obligations, including prompt payment of all sums when due, under this Agreement. If Client does not promptly pay invoices as set forth in paragraph 8 of this Agreement, Client agrees that all Work Product furnished to the Client or its agents, shall be returned upon demand and will not be used by Client for any purpose whatsoever. Unauthorized use is prohibited.
15. Confidentiality:
i. Definition: "Confidential Information" means any non-public information disclosed by either party to the other, whether orally, in writing, or by other means, including but not limited to business plans, financial data, proprietary technologies, trade secrets, customer information, and employee data.
ii. Obligations: Each party agrees to maintain the confidentiality of the other party's Confidential Information and shall not disclose such information to any third party without prior written consent, except as required by law or necessary to defend legal claims. Each party shall protect the other's Confidential Information using the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care.
iii.Exclusions: Confidential Information does not include information that: (i) becomes publicly available through no fault of the receiving party; (ii) is independently developed by the receiving party without use of the disclosing party's Confidential Information; (iii) is rightfully received from a third party without restriction; or (iv) was already known to the receiving party prior to disclosure.
iv. Term: The confidentiality obligations shall survive the termination of this Agreement for a period of five (5) years, except for trade secrets which shall be maintained as confidential for so long as they qualify as trade secrets under applicable law.
v. Return of Information: Upon termination of this Agreement or upon written request, each party shall return or destroy all Confidential Information of the other party and certify such return or destruction in writing if requested.
vi. Remedies: Each party acknowledges that any breach of confidentiality obligations may cause irreparable harm for which monetary damages would be inadequate and agrees that the disclosing party shall be entitled to seek injunctive relief in addition to any other available remedies.
16. Dispute Resolution: Any dispute, controversy, or claim arising out of or relating to this Agreement shall be resolved as follows: i. Good Faith Negotiations: The parties shall first attempt to resolve any dispute through good faith negotiations between authorized representatives of both parties for a period of fourteen (14) days from the date that either party provides written notice of the dispute to the other party.
ii. Mediation: If the dispute remains unresolved after fourteen (14) days of good faith negotiations, the parties shall proceed to non-binding mediation. The parties shall mutually select a qualified mediator within fifteen (15) days. In the event that the parties cannot agree on a mediator within the specified timeframe, either party may request that the American Arbitration Association administer the mediation and appoint a qualified mediator from their panel who is experienced in the subject matter dispute. The American Arbitration Association’s mediator selection shall be final and binding on the parties.
iii. Litigation; Attorneys’ Fees: If there is an impasse or the dispute is not fully resolved through mediation, either party may initiate litigation. If a statute of limitations deadline would bar the initiation of a lawsuit due the duration of good faith negotiation or mediation, either party may proceed directly to litigation. In the event of any litigation arising out of or related to this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable attorneys' fees, costs, and expenses incurred in connection with such action, provided that Consultant's total liability for such fees, costs, and expenses shall be subject to the limitations set forth in Section 13 (Limitation of Liability) of this Agreement. This includes any fees and costs associated with enforcing any judgment or award. The determination of the prevailing party shall be made by the court as part of the final judgment or award.
iv. Waiver of Jury Trial: TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES HEREBY WAIVE ALL RIGHTS TO A JURY TRIAL IN ANY DISPUTE.
17. No Claim for Professional Negligence Without Certification: No claim for professional negligence or breach of professional standard of care, either directly or by way of a cross-complaint, shall be made against Consultant unless Client provides a written certification executed by an independent consultant who is currently practicing in the same discipline and is licensed in the state where the Project is located. The certification must state that, in the certifier’s professional opinion, there is a reasonable basis to believe that Consultant has engaged in conduct that constitutes professional negligence in the performance of its duties under this Agreement. The certification must include the certifier’s license, professional qualifications, the methodologies used to arrive at the opinion and must be based upon a thorough review of all relevant project documents and standards of care applicable to the services provided. The failure to provide such certification shall be grounds for dismissal of the claim.
18. Ethics; Conflicts of Interest; Equal Employment: Both parties shall conduct their activities in accordance with the highest ethical standards and in compliance with all applicable laws and regulations. Each party shall promptly disclose any actual or potential conflicts of interest that may arise during the term of this Agreement. No party shall engage in conduct that constitutes a conflict of interest, and all conflicts must be disclosed and addressed to the satisfaction of both parties.
No party shall violate the U.S. Patriot Act, or any rules or regulations promulgated by the Office of Foreign Assets Control (OFAC). Furthermore, both parties agree to comply with the provisions of the Foreign Corrupt Practices Act (FCPA), and neither party shall engage in bribery or any form of corruption in connection with this Agreement.
Consultant does not discriminate in employment against any individual based on race, color, religion, sex, national origin, age, disability, ancestry, sexual orientation, gender identity, or any other protected status under applicable law.
19. Governing Law: This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, without giving effect to any choice of law or conflict of law provisions. Notwithstanding the dispute resolution provisions set forth in paragraph 16, either party may seek injunctive or equitable relief in the state and federal courts located in Hillsborough County, Florida. Such venue shall be the exclusive venue for any mediation, claims, controversies and disputes and each party waives any objection to the laying of venue in said courts.
20. No Third Party Beneficiaries: This Agreement is intended solely for the benefit of the parties hereto, and no third party shall have any rights, benefits, or claims under this Agreement.
21. Assignment: Consultant may assign this Agreement or any rights or obligations hereunder to a subsidiary, affiliate, successor in interest, or to any entity acquiring substantially all of Consultant's assets, provided that such successor assumes all obligations under this Agreement. Client may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Consultant, which consent shall not be unreasonably withheld. Any attempted assignment in violation of this section shall be null and void. This Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
22. Severability: If any provision is deemed unenforceable, the remainder of the Agreement shall remain in full force and effect.
23. Entire Agreement: These Terms and Conditions and the corresponding Proposal(s) represent the entire and integrated agreement between the Client and Consultant and constitutes the complete understanding between the parties and supersedes any prior agreements, representations, or negotiations, whether written or oral. No amendments, modifications, or waivers shall be effective unless made in writing and signed by authorized representatives of both parties. No terms in Client's purchase orders, invoices, or other documents shall modify this Agreement.
24 Survival: Notwithstanding the termination or expiration of this Agreement, the provisions of Sections 5 (Limitation of Responsibility), 8 (Payment), 11 (Indemnification), 13 (Limitation of Liability), 14 (Ownership of Intellectual Property), and paragraphs 15 -24 shall survive such termination or expiration and remain in full force and effect. Additionally, any other provisions which by their nature should reasonably survive termination shall also remain in effect, including but not limited to obligations for payment of fees, costs, and expenses incurred prior to termination, and any confidentiality obligations.
[END OF TERMS AND CONDITIONS]
EXISTING BUILDING, LLC | TERMS AND CONDITIONS