1. SERVICES

1.1 During the Term of this Agreement, Company will provide certain services (“Services”) to Client as mutually agreed upon between the parties pursuant to a written statement of work (“Statement of Work”). The terms of this Agreement shall apply to all subsequent Statements of Work agreed to by the parties for the duration of each applicable Statement of Work and acceptance of any subsequent Statement of Work by Client shall be deemed a continuing acceptance of this Agreement. Services will be provided and performed under the terms and conditions of this Agreement and any signed Statement of Work, provided that Company's performance obligations will not arise until Company's receipt of a mutually executed Statement of Work and any required deposit payments. Company agrees that its employees and/or independent contractors shall be bound to Company to comply with Sections 3. and 4. of this Agreement. After the execution of an applicable Statement of Work, Company may recommend and/or Client may request a change to the current Statement of Work or additional Services be added to the Statement of Work, but any proposed change or addition shall only be binding upon mutual execution of a change order which specifies any applicable change or addition as well as the associated impact on the schedule and fees for the Services.

1.2 Client agrees that it will designate a qualified representative primarily responsible for interface with the Company and will actively assist Company by, among other things, timely providing Company the necessary documents and other data or materials required by Company to complete any Services. Failure to do so will be considered a breach of this Agreement by Client.

1.3 Client understands, and agrees that Company may use third party independent contractors to provide the Services provided for herein and any executed Statement of Work.

1.4 Client understands, and agrees that the deadline indicated within the Statement of Work is the standard schedule to perform the listed services. Any request to shorten the schedule will be considered an expedited service (“Expedited Service”). Company will consider all requests for Expedited Services on an individual case basis. Each Expedited Service will incur an additional fee that shall be outlined in the Statement of Work prior to the commencement of services. The one-time fee for Expedited Service may vary depending on circumstances. Company reserves the right to determine if it can accommodate an expedited service request.

2.1 Client shall pay Company for the Services and at the rates set forth in mutually executed Statement of Work. Unless otherwise expressly indicated in the Statement of Work, a late payment charge of two percent (2%) per month may be added to any invoiced amounts which are unpaid when due. The failure of either party to enforce any right or remedy provided in the Agreement or by law on a particular occasion, including but not limited to the applicable late fee, will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy.

2.2 In the event this Agreement is voluntarily terminated by Company prior to completion of the Services, Company shall be entitled to compensation for that portion of the Services set forth in the applicable Statement of Work mutually agreed upon as completed prior to termination together with reimbursable expenses, whether Client has paid such amount yet or not.

2.3 Client acknowledges that Company may be required to engage independent contractors to perform the Services pursuant to contractual commitments and Client therefore agrees and acknowledges that refunds will not be given for any reason and, in the event this Agreement is voluntarily terminated by Client prior to completion of the Services, Client agrees that the remainder of the outstanding balance for all the Services set forth in the applicable Statement of Work, and completed at the time of termination as determined by Company, shall nonetheless be due and owing.

3.1 Company agrees that the Client-specific results of all third-party peer review and other Services provided by Company will be considered works made for hire and shall be assigned to Client as the sole and exclusive property of Client and Client’s assigns, nominees, and successors. Notwithstanding the above, Company utilizes CheckSET™ and other proprietary methodologies, software, algorithms, formats and associated intellectual property and Company retains all associated intellectual property rights.

4.1 Both parties (Client and Company), during the term of this Agreement, may exchange written material, oral instructions, and have access to and become acquainted with each other’s confidential information (“Confidential Information”). Parties agree and understand that each party has spent extensive time and money in creating such Confidential Information, and that the same is not generally known to the public. Both parties shall not disclose any Confidential Information, directly or indirectly, or use such information in any way, either during the term of this Agreement or at any time thereafter, except as required in the course of Company’s Services under this Agreement. Confidential Information (including but not limited to Clause 1.3) does not include information that: (a) currently is or becomes generally available to the public through no fault of either party; (b) must be disclosed to governmental agencies or other third parties to the extent reasonably necessary to achieve the purposes of this Agreement; (c) can be demonstrated was known to the public prior to entering into this Agreement; (d) is disclosed pursuant to the order of a court, administrative agency or other governmental body, provided, that each party notifies the other of such order sufficiently in advance to allow the enough time to seek a protective order from a court.

4.2 Both parties (Client and Company) shall have a non-exclusive, perpetual, royalty free, and worldwide license to display the other Party’s name, logo, and publicly available project data within each Party's marketing website, advertising, and literature solely for the purpose of promoting or exemplifying the services performed under this agreement.

5.1 This Agreement does not prohibit or restrict a Client’s performance of services or employment for any third party in any manner or respect as long as Client does not engage in marketing and selling competitive services to those marketed and sold by Company. Nothing herein shall restrict Company in any way.

6.1 Client agrees that during and for a period of twenty-four (24) months immediately following the termination of this Agreement for any reason, whether with or without cause, Client shall not either directly or indirectly solicit, induce, recruit or encourage any of the Company’s service providers (whether employees or independent contractors) to terminate their relationship with the Company, or take away such persons or attempt to solicit, induce, recruit, encourage or take away persons, either for Client or for any other person or entity.

7.1 The term of this Agreement will begin on the Effective Date and will continue for one (1) year from the Effective Date, but shall automatically renew for successive one (1) year periods unless earlier terminated, pursuant to this Agreement, by either party. Company shall begin providing the applicable Services after Client and Company mutually execute the applicable Statement of Work.

7.2 Company may terminate this Agreement (a) upon written notice of an intention not to renew at least thirty (30) days prior to the expiration of each one (1) year term, or (b) at its sole discretion with ten (10) days’ prior written notice to Client. Without limiting the foregoing, Company retains the right to suspend the performance of any work in progress based on Client’s failure to timely make any required payment to Company and failure to cure within ten (10) days of the applicable due date.

7.3 Client may terminate this Agreement (a) upon written notice of an intention not to renew at least thirty (30) days prior to the expiration of each one (1) year term, or (b) for a material breach immediately upon ten (10) days’ prior written notice to the Company, unless Company has begun a diligent cure of the breach within the ten (10) day cure period in which case the Term shall be extended a reasonable amount of time for Company to effectuate the necessary cure and shall not be terminated if Company timely completes such cure.

7.4 Company may terminate any Statement of Work under this Agreement if the shared documents are not within the acceptable standard, as determined by the Company, to perform the services and failure to cure within three (3) days of email notification. Statement of Work deadline shall be extended by the number of days taken to cure the documents.

8.1 To the fullest extent permitted by law, both Company and Client shall indemnify, and hold harmless both parties' directors, officers, employees, agents, partners, members, contractors, successors and assigns from and against any claims, damages, losses, liabilities, costs, actions, causes of action, suits, penalties, fines and expenses, including but not limited to attorneys’ and experts’ fees, arising, or alleged to arise out of, in whole or in part, out of or resulting from performance of the Company’s Services under the Agreement, including, without limitation, any of the Company’s Services performed by any contractors retained by Company; except to the extent such portion of any Claims are caused by the gross negligence or intentional/willful misconduct of the Company

8.2 Client understands and acknowledges that the Company is not the Architect of Record. Additionally, Client understands and acknowledges that Company may utilize non-licensed persons to perform Services hereunder, and therefore Client acknowledges that an Architect or Record is separately retained and is solely responsible for any final plans, drawings, specifications, or other work product. 

9.1 Client agrees to comply with all laws, rules and regulations governing Client’s practice, and Client’s agreement with its end-user customers, and warrants that Client’s use of Company’s Services is and will be legally and contractually compliant.

9.2 This Agreement is by its nature personal to Company and Client based on their unique attributes, and neither party may assign this Agreement without the prior written consent of the other party to this Agreement which may be withheld for any reason.

9.3 If any part or parts of this Agreement are held to be invalid, the remaining parts of the Agreement will continue to be valid and enforceable.

9.4 This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law principles.

9.5 The parties recognize that serious injury could result to Company and its business if Client breaches its obligations under this Agreement. Therefore, Client agrees that Company will be entitled to a restraining order, injunction or other equitable relief if Client breaches its obligations under this Agreement, in addition to any other remedies and damages that would be available at law or equity.

9.6 The headings in this Agreement are for reference purposes only; they will not affect the meaning or construction of the terms of this Agreement.

9.7 All the provisions of this Agreement that by their nature are intended to survive its expiration or termination shall so survive including without limitation, Sections 3, 4, 5, 6, 8 and 9.

9.8 The provisions of this Agreement are for the sole benefit of the parties, and not for the benefit of any other persons or legal entities, and nothing in this Agreement or any applicable Statement of Work shall create a contractual or third-party beneficiary relationship with any customer of Client or any other third-party, or provide any other basis for a third-party claim against Company.

9.9 Client and Company are independent parties, and nothing in this Agreement or any applicable Statement of Work makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or to create any obligation on behalf of the other party.

9.10 Unless otherwise provided, any legal notice required or permitted under this Agreement shall be given in writing and shall be deemed effectively given upon personal delivery to the party to be notified or by a nationally-recognized delivery service (such as Federal Express or UPS) or seventy-two (72) hours after being deposited with the United States Post Office, by registered or certified mail, postage prepaid and addressed to the Party at the address set forth in this Agreement, or at such other address as may be designated in writing. Company’s address for such notices is NCBR, Inc., P.O. Box 2691, Laguna Hills, CA 92654 Attention: Legal.

9.11 Agreement to Negotiate. To expedite resolution and reduce the cost of any dispute, controversy or claim related to or arising out of this Agreement or the Services (“Dispute”), Client and Company agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration. Such informal negotiations will commence upon written notice.

9.12 Dispute Resolution Forum. If Client and Company are unable to resolve a Dispute through informal negotiations, all claims arising out of a Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”).

9.13 WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Client and Company agree that any arbitration will be limited to the Dispute between Company and Client individually. Client ACKNOWLEDGES AND AGREES THAT Client AND Company ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both Client and Company otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution Forum” Section will be deemed null and void.

Arbitration will take place in Orange County, California. Client and Company agree that for any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, the California state and Federal courts located in Orange County, California have exclusive jurisdiction and Client and Company agree to submit to the personal jurisdiction of such courts.

9.14 Time Limitation for Claims. Client agrees that regardless of any otherwise applicable statute or law to the contrary, any claim or cause of action against Company or it’s agents, employees or independent contractors arising out of a Dispute or arising out of or related to this Agreement or the Services (whether brought in court or through arbitration) must commence within one (1) year after the completion of the Services. Otherwise, such claim or cause of action is permanently barred.

9.15 Subpoenas and Depositions. If Company is required by government regulation, subpoena, or other le gal process to produce documents or personnel as witnesses arising out of or in connection with Services provided under this Agreement, and provided that Company is not a party to the legal proceedings, Client shall reimburse Company for its reasonable professional time, legal fees and expenses incurred in responding to such requests.

9.16 The services contracted for herein are provided on an “as is” basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose and non-infringement. Company makes no warranties or representations about the accuracy or completeness of the services provided herein. Company assumes no liability or responsibility for any (I) errors, mistakes, or inaccuracies of completed or uncompleted services, (ii) financial damage, business damage, personal injury or property damage, of any nature whatsoever, resulting from the services.

Without limiting the foregoing, neither Company nor its affiliates warrant that the services will be uninterrupted or that the services will be error-free; nor does Company make any warranty as to the results that may be obtained from the use of the services, or as to the timeliness, accuracy, reliability, completeness or content of any of the services, information or materials provided through or in connection with the use of the services. Client understands and acknowledges that Company may utilize unlicensed persons to complete the services provided under this agreement, and Client further agrees and warrants that it will maintain control of all projects and remain as the architect of record for any and all projects for which it may use Company’s services.

Client acknowledges and agrees that Company is only willing to provide the services if Client agrees to certain limitations of Company’s liability to Client and third parties. Therefore, Client agrees not to hold Company, its affiliates, agents, employees, officers, contractors, directors, or corporate partners liable for any damages, suits, claims, and/or controversies (collectively, “liabilities”) that have arisen or may arise, whether known or unknown, relating to Client’s or any other party’s use of or inability to use the services.

Under no circumstances will Company, its affiliates, contractors, agents, employees, officers, directors, corporate partners, be liable for any indirect, incidental, consequential, special, punitive or exemplary damages arising in connection with Client’s use of or inability to use the services, even if advised of the possibility of the same. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations may not apply to Client.

9.17 Limitations of Liability. If, notwithstanding the foregoing exclusions, it is determined that Company or its affiliates, agents, employees, officers, directors, corporate partners, or participants is liable for damages, in no event will the aggregate liability, whether arising in contract, tort, strict liability or otherwise, exceed the total fees paid by Client to Company for the single applicable statement of work giving rise to such liability and up to the time the cause of action giving rise to such liability occurred.

9.18 This Agreement (including any associated Statement of Work) contains the complete and exclusive understanding of the parties with respect to the matters contained herein, and supersedes all prior oral or written representations or agreements by the parties with respect to the subject matter of the Agreement including any initial proposal or pitch by the Company. No waiver, alteration or modification of any of the provisions of this Agreement will be binding unless in writing and signed by a duly authorized representative of the party to be bound. Neither the course of conduct between the parties nor trade usage will act to modify or alter the provisions of this Agreement.