MATTHEW KOWLES LLC TERMS AND CONDITIONS
All materials and samples, such as decorative paint samples (glazed wall surfaces, textured wall surfaces, decorative painting techniques for walls, ceiling, floors, etc.) will be billed at the designer net cost.
Prices of materials may be subject to change and contractor services are subject to change. The Designer will provide notice of any price increase and will require Client approval and confirmation of the revised price in order for the Designer to proceed with the item or service.
The Client acknowledges that during construction meetings, the Designer will not be responsible for providing a record of the meeting to members of the architecture and construction teams and it is requested that the contractor provide his or her own note taker.
All items designed, selected, or specified by the Designer shall be purchased and managed solely through the Designer, unless otherwise approved in writing.
Drawings and specifications for custom-made items, including, but not limited to millwork, furniture, fabrics, embroideries, linens, rugs, and lighting, shall remain the Designer's property whether or not the design is executed.
Antiques, furniture, carpets, accessories, etc. taken on an "On Approval" basis on behalf or the Client, must be returned or purchased within forty-eight (48) hours. The Client is responsible for any fees/penalties associated with the loan and/or delivery/transportation of such items.
The Client acknowledges that the goods and services purchased through or from the Designer may be custom products and, if so, cannot be returned or exchanged once an order for such custom good or service is in progress. If cancellation occurs too late for the product or service to be halted, the Client shall be responsible for the previously agreed upon amount as well as any fees and expenses incurred.
The Designer is exempt of any and all responsibility from any possible wearing, fading, or latent defect of any item or service. The Client shall have the benefit, at the Client's sole expense in the assertion thereof, of all guarantees and warranties possessed by the Designer against suppliers and manufacturers.
Goods purchased throughout the term of the contract on behalf of the Client may need to be placed in temporary storage prior to the final delivery and installation of the residence. The Designer will select, with the Client's approval, a transport and warehouse company. The Client will contract directly with the transporter selected by the Designer based on the needs of the project. The Designer requires the right to access the storage facility and to coordinate the shipment of goods into and out of the storage facility. The Client will be directly responsible for all costs associated with the shipping and storage of goods.
The following terms and conditions are for the mutual benefit of the Client and Matthew Kowles LLC (“Designer”). It provides transparency for (i) the manner in which the Services are to be provided; and (ii) the parties’ mutual expectations.
(1) COPYRIGHTS AND LICENSES Designer is the author and owner of all drawings, models, specifications, and other documents, including those in electronic form, prepared by Designer for this Project (collectively "Design Materials"), which are instruments of Designer’s services. In consideration for this Agreement, Designer grants the Client a non-exclusive license to use the Design Materials in connection with this Project. Designer may elect, if it does not receive full payment of its invoices, to terminate this Agreement and/or revoke the Client’s license to use the Design Materials until payment is made in full to Designer.
(2) SUBSEQUENT USE If the Client utilizes the Design Materials for any addition, extension, modification or remodeling of the Project or for the completion of the Project by others, and does not retain Designer for such work, then the Client agrees, to the extent permitted by law, to delete any and all references to the Architect from all of the Project-related documents used therein; indemnify Designer in accordance with Paragraph 3 herein; and pay Designer a license fee in the amount of 20% of the unbilled Fee.
(3) INDEMNIFICATION FOR USE OF DESIGN MATERIALS The Client hereby agrees, to the fullest extent permitted by law, to hold harmless, defend, and indemnify Designer from and against all liability, loss, damages, costs and expenses, including reasonable counsel fees, which Designer may at any time sustain or incur by reason of any demands, claims, causes of action, legal proceedings, judgments, or liability arising out of or in connection with any revision, addition, misuse, alteration or deviation from the Design Materials carried out by a person other than Designer or by a person without the prior consent of Designer occurring subsequent to Designer’s completion of services under or the earlier termination of this Agreement for use on this Project or on other projects other than this Project. Nothing herein shall be deemed to require the Client to indemnify Designer against Designer’s own negligence.
(4) CLIENT’S RESPONSIBILITIES The Client will provide all relevant and applicable information, requirements, and surveys for the Project in Client’s possession or reasonably accessible to Client at no additional cost, including program information describing the Client’s objectives, schedule, constraints and criteria, space requirements and relationships, flexibility, expandability, special equipment, systems, and site requirements, and budget. Designer shall be entitled to rely upon the accuracy and completeness of all such information provided by the Client. The Client shall make prompt and timely decisions regarding design, budget, consultant retention (if applicable) and other issues that may affect Designer’s ability to perform and complete its Services on schedule. The Client shall provide prompt written notice to Designer if it becomes aware of any fault or defect in the Design Materials or the Project. Designer is not responsible for any delays caused by the Client, the Client’s consultants, or any factor outside of Designer’s control, including any force majeure events (i.e. tornado, flood, hurricanes, strikes, lockouts, labor disputes, riots, shortage or unavailability of materials, supplies, labor, orders, judgments, etc.).
(5) CHANGES IN DESIGN DOCUMENTS Changes requested by the Client to the extent inconsistent with prior approvals shall be considered an Additional Service.
(6) PAYMENT The Client shall provide any objection to Designer’s invoices, and its reasons therefore, in writing within seven (7) days of receipt of Designer’s invoice or they are deemed accepted by the Client. If the Client materially breaches this Agreement, including if payment of an invoice is not received by Designer within thirty (30) days, then Designer may, upon five (5) days written notice to the Client and without any liability to the Client (including for delay or otherwise), suspend its Services and receive interest on any unpaid amount of 18% annually (on a monthly basis). Upon receipt of payment in full of all outstanding sums due from the Client, or curing of such other breach which caused Designer to suspend services, Designer shall resume services after an agreed upon mobilization period and there shall be an equitable adjustment to the remaining Project schedule and Fees as a result of the suspension. No payments may be withheld to Designer by reason of any offset claimed by the Client. Designer shall be entitled to recover reasonable attorneys’ fees associated with collections on a payment dispute.
(7) PUBLICATION The Client agrees to make reference to Designer as the designer for the Project in any publication, caused or permitted by the Client, of depictions, photographs, or representations of the Project as designed. The Client will require any third party who is granted permission to publish a depiction, photograph, or representation of the Project to be bound by this Paragraph. Upon Project completion and with the Client’s approval (which shall not be unreasonably withheld), Designer shall be permitted to take photographs of the Project for Designer’s use at a mutually convenient time.
(8) SUCCESSORS AND ASSIGNS The Client and Designer, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither the Client nor Designer shall assign this Agreement without the written consent of the other.
(9) SCOPE OF AGREEMENT This Agreement represents the entire and integrated agreement between the Client and Designer and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Client and Designer. To the extent this Agreement requires any negotiation involving legal counsel to be retained by Designer, the Client shall reimburse such legal expenses.
(10) APPLICABLE LAW This Agreement shall be governed by and construed in accordance with the laws of the State of New York without reference to its conflicts of laws principles.
(11) DISPUTES In the event of any dispute arising out of the services in this Agreement, the parties agree to arbitration, before one (1) arbitrator in New York, to resolve the dispute. This Agreement shall be governed by the laws of New York. To the extent the dispute involves a payment dispute, and Designer substantially prevails, Designer shall be entitled to recover all associated costs, expenses, and fees, including attorneys’ fees. The arbitration procedure shall be as follows:
(a)The party bringing the Claim shall, in writing, set forth the details of its Claim and its desire to resolve the dispute in accordance with this Section.
(b) The other party shall, within ten (10) days of receipt of the written demand, accept arbitration and set forth at its option, in detail, any counterclaim of its own.
©The Client and Designer agree to the joinder of any other parties separately retained by the Client and Designer (collectively, the “Parties”), as a party to any arbitration called for in this Agreement. The Client shall provide for the joinder of these Parties in the applicable and respective agreements with other such Parties.
(d) Within twenty (20) days after joinder of all parties, the parties shall agree upon a sole arbiter (the “Arbiter”) who shall hear any disputes arising under this Article. If the parties cannot agree on an Arbiter, they agree to use American Arbitration Association (“AAA”) rules to appoint an Arbiter. The AAA shall make such appointment within ten (10) days of receipt of a written request by either party. The parties agree to share equally the costs of the Arbiter associated with the resolution of any dispute.
(e) Within ten (10) days of his/her appointment, the Arbiter shall hold a hearing, limited to no more than two (2) days per party, which limit shall not be exceeded except for unusual reasons and/or by agreement of the Arbiter and the parties.
(f) The Arbiter shall render his/her written decision within forty-eight (48) hours after the close of the hearing. The decision shall be in writing and may, at the Arbiter’s option, provide an explanation for such decision.
(g) The Arbiter’s decision shall be final and binding upon all parties and judgment may be entered upon it in the appropriate court in the State of New York. If a challenge to the Arbiter’s decision is made by a party in the applicable court and such challenge is thereafter rejected, by appeal or otherwise, the prevailing party shall be entitled to its reasonable attorney’s fees and expenses for such proceeding(s).
(12 )LIABILITY Designer’s liability is limited to the amount of the Fee paid to Designer or the amount of Designer’s available insurance, whichever is greater, and no personal liability shall attach to any individual, officer, shareholder, member, employee, director, principal or representative of Designer.
(13) TERMINATION Designer may terminate this Agreement upon written notice to the Client (i) should the Client substantially fail to perform in accordance with the terms of this Agreement, including, but not limited to, non-payment of any portion of the Fee or delay in providing timely information and materials to Designer; (ii) if the Project is permanently abandoned by the Client; or (iii) the Client becomes insolvent or is the subject of a petition in bankruptcy, insolvency or similar laws; or makes an assignment for the benefit of creditors, or is dissolved or liquidated. The Client’s failure to pay Designer any monies due pursuant to Designer’s invoices shall be deemed a material breach of this Agreement. In the event of a termination of this Agreement, Designer shall be compensated for all Services performed and Reimbursable Expenses incurred through the date of such termination, plus reasonable expenses associated with such termination.
(14) SUSPENSION If Designer’s services or the Project are suspended for more than thirty (30) days, consecutive or in the aggregate over the term of this Agreement, Designer shall be compensated immediately for all services performed and Reimbursable Expenses incurred prior to such suspension. If Designer’s services or the Project are suspended for more than ninety (90) days, consecutive or in the aggregate over the term of this Agreement, Designer may treat such suspension as a permanent abandonment by the Client and shall be permitted to terminate the Agreement upon five (5) days written notice to the Client. Upon resumption of services, the Client shall compensate Designer for expenses incurred as a result of the suspension and resumption of its services, and Designer’s schedule and fees for the remobilization and the remainder of the Project shall be equitably adjusted.
(15) MEANS AND METHODS Designer shall not have control or charge of, and shall not be responsible for construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the Work, (collectively the "construction methods"). Designer shall not be responsible for (i) the acts or omissions of any Contractor performing the Work; (ii) the failure of any of them to carry out the Work in accordance with the Construction Documents; or (iii) for the safety of any workers at the Project site, or any visitors, invitees or otherwise to the Project site.
(16) WAIVER OF CONSEQUENTIAL DAMAGES The Client and Designer mutually waive all rights and claims against each other for any incidental, indirect, special, or consequential damages of any kind, including, but not limited to, any loss of use, loss or interruption of business, or loss of profit, economic loss or financing costs.
(17) ARCHITECT OF RECORD It is expressly recognized by the parties to this Agreement that Designer is not a licensed design professional and shall not be deemed to hold itself out as a licensed design professional or to perform any professional services.