Terms of Service
This agreement (“Agreement” or “Terms of Service”) is a binding agreement between you, the customer, and Model Concepts Inc. dba Model Concepts which owns and operates the website at www.ModelConcepts.ca. These Terms of Service shall govern any Project Agreement or other document entered into between you and Model Concepts (each, a “Project Agreement”). As used in these Terms of Service, “Model Concepts” or “we” or “us” refers to Model Concepts Inc. dba Model Concepts, and “you” or “your” or “Customer” refers to you, the customer. References to this “Agreement” include any Project Agreements issued hereunder.If you do not agree to these Terms, please do not use the Website or related services. Model Concepts can revise these Terms at any time by updating this posting, and your use of this Website after such change signifies your acceptance of the changed Terms, provided, however, that the Terms in effect when you agree to any Project Agreement (as defined below) will remain in effect with respect to such Project Agreement until completed. Please check these Terms periodically for changes.
Date of Last Revision: March 2, 2022
Model Concepts provides an online platform where homeowners can manage and control their residential renovation project (the “Project”) from design through construction. Model Concepts’ renovation platform allows customers to design their dream spaces, select their materials, provide the needed contractors, and pay for everything all in one place. (the “Model Concepts Services”).
The specific services included in your project will be set out in the Project Agreement agreed to between you and Model Concepts (“Services” or “Service”).
Model Concepts’ customers will be matched with contractors from Model Concepts’ extensive network at pre-negotiated prices. Model Concepts does not provide construction services, but Model Concepts will provide project support services as set out in the Project Agreement.
Model Concepts permits payments for the Services by you. The quoted price for your Project will be included in the Project Proposal (the “Payment Terms”) and may only be revised or updated subject to written agreement between you, the Contractor, and Model Concepts. The final, agreed-upon price is the “Project Fee.” Subject to the provisions below, you agree to effect full payment of the Project Fee through the Platform. Your Payment Terms may describe certain tasks and/or events associated with the Project (“Project Milestones”), which in some cases trigger payments due upon completion of those Project Milestones (“Instalment Payments”). In that case, Model Concepts will notify you when a Project Milestone is complete in writing, via email and/or the Model Concepts Platform (the “Milestone Notice”). You are responsible for monitoring all communications from Model Concepts during the course of the Project. Unless you submit a complaint in writing, via email and/or the Model Concepts Platform, within three business days of the date on which the Milestone Notice is provided (the “Milestone Complaint Period”), you agree that the work has been satisfactorily performed and, if applicable, to pay the Instalment Payment associated with the relevant Project Milestone upon expiration of the Milestone Complaint Period. If you do not submit a written complaint during the Milestone Complaint Period, and you have provided your credit card information to Model Concepts and/or our Payment Processor (defined below), Model Concepts may charge the Instalment Payment amount associated with the relevant Project Milestone to your credit card upon expiration of the Milestone Complaint Period. You will be notified in writing, via email and/or the Model Concepts Platform, before any charge is applied to your credit card.
Model Concepts will notify you in writing, via email and/or the Model Concepts Platform, when the Project is substantially complete (the “Completion Notice”). Unless you submit a complaint in writing, via email and/or the Model Concepts Platform, within three business days of the date on which the Completion Notice is provided (the “Final Complaint Period”), you agree that the work has been satisfactorily completed and, if applicable, agree to pay any outstanding amounts required to effect full payment of the Project Fee (the “Final Payment”) upon expiration of the Final Complaint Period. If you do not submit a written complaint during the Final Complaint Period, and you have provided your credit card information to Model Concepts and/or our Payment Processor (defined below), Model Concepts may charge the Final Payment amount to your credit card upon expiration of the Final Complaint Period. You will be notified in writing, via email and/or the Model Concepts Platform, before any charge is applied to your credit card. If you do not submit a written complaint within the Final Complaint Period, the Project will be marked as closed by Model Concepts.
If you submit a complaint in writing, via email and/or the Model Concepts Platform, within the Final Complaint Period, Model Concepts will refrain from charging the Final Payment amount to your credit card pending (1) written notice of your withdrawal of your complaint or (2) resolution of the complaint as set forth below. In the event you fail to respond to Model Concepts’ communications concerning the subject of your written complaint for a period of thirty (30) or more days, Model Concepts may charge the Final Payment amount to your credit card, notwithstanding the provisions set forth below. You will be notified in writing, via email and/or the Model Concepts Platform, before any charge is applied to Customer agrees to pay the fees set out in the Project Agreement for the Services and on the terms set out therein.
Model Concepts may use a third party payment processor (the “Payment Processor”), such as Stripe, to process payments or credits, as applicable, in connection with your use of the Service. The processing of such payments will be subject to the terms, conditions and privacy policies of the Payment Processor and your credit card issuer in addition to these Terms. Model Concepts is not responsible for any errors by the Payment Processor or for any security breaches suffered by such entity. By using the Service, you hereby consent and authorize Model Concepts and the Payment Processor to share any information and payment instructors you provide to the minimum extent required to complete your transactions.
The prices set out in the Project Agreement are valid for 45 days from the date of the Project Agreement. If the Construction Services do not commence within 45 days of the Project Agreement due to delays caused by Customer or for other reasons outside Model Concepts ' control, the fees may be adjusted to account for any increased costs (associated with supply chain issues or otherwise). Any such increase in fees will not exceed 10% of the initially quoted price.
Customer agrees agree that all late payments will bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under Ontario law, calculated daily and compounded monthly. Customer also agrees to reimburse Model Concepts for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees.
TERM, TERMINATION, & SUSPENSION OF SERVICES
The term of the Agreement shall commence on the effective date specified in the Project Agreement and shall continue until the Services under all Project Agreements have been completed or terminated in accordance with the terms set out herein.
Termination by Customer
Customer may terminate the Agreement or any Project Agreement by providing 5 days’ written notice to Model Concepts . In such an event, Customer shall immediately pay to Model Concepts all outstanding balances for Services performed prior to the date of termination, as well as any costs incurred by Model Concepts in connection with the termination, including demobilization and any termination charges by vendors and subcontractors, plus 20%.
Termination by Model Concepts
Model Concepts may terminate this Agreement at any time, upon written notice to Customer, provided that Model Concepts will refund to Customer any prepaid and unearned Fees for Services that have not been performed prior to the date of termination, less any amounts owed by Customer to Model Concepts upon termination, including fees for Services performed prior to the date of termination.
Termination for Breach
Either Party may terminate this Agreement or any Project Agreement hereunder effective upon written notice to the other Party, if the defaulting Party materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the defaulting Party does not cure such breach within 5 days after receipt of written notice of such breach. Notwithstanding the foregoing, Model Concepts may terminate this Agreement or any Project Agreement hereunder immediately upon notice to Customer in the event of a Customer Default. In such an event, you shall immediately pay to Model Concepts all outstanding balances for Services performed prior to the date of termination, as well as any costs incurred by Model Concepts in connection with the termination, including demobilization and any termination charges by vendors and subcontractors, plus 20%.
Suspension of Services
Customer agrees that Model Concepts may suspend the performance of Services due to a Customer Default upon written notice of the Customer Default to Customer. Model Concepts may continue to suspend the Services until the Customer Default has been cured. Customer further understands, acknowledges, and agrees that any suspension of Services in accordance with the terms of this Agreement will automatically extend any estimated timelines by a period of time equal to the Suspension Period.
CHANGES TO SERVICES
Any changes to the scope of the Model Concepts Services shall be agreed between Customer and Model Concepts in a Change Order signed by both parties. Any changes to the Services prior to commencement of the Construction Services shall be agreed between Model Concepts and Customer through a written Change Order. Unless otherwise agreed between the parties, any changes to the Construction Services following commencement of the Construction Services shall also be agreed between Customer and Model Concepts.
No material returns will be accepted by Model Concepts unless an item arrives damaged or an incorrect item is delivered. If an item arrives damaged or is incorrect, Model Concepts will replace the item free of charge. Model Concepts will also allow changes to materials ordered from Model Concepts’ standard catalogs within a two-week window starting from the date of the materials invoice. This two-week window does not apply to custom materials ordered outside of Model Concepts’ standard catalogs. Customer understands that once Model Concepts orders materials, the materials order may not be cancelled and Model Concepts will be obligated to pay for the materials notwithstanding that Customer has decided to cancel the order. Model Concepts shall make reasonable efforts to cancel the materials order and minimize the cancellation costs. However, Model Concepts shall be paid all monies for all material costs that a vendor refuses to cancel, and Model Concepts shall deliver those materials to Customer or dispose of them as directed by Customer. Excess material left over after construction, including tile overages, are the property of the Customer and are not eligible for refunds or returns.
Customer agrees to: (i) respond promptly to any reasonable requests from Model Concepts for information or documents required by Model Concepts to provide the Services; (ii) cooperate with Model Concepts in its performance of the Services and provide access to Customer's premises as required to enable Model Concepts to scope, price, or otherwise provide the Services; and (iii) comply with all Customer obligations under the applicable Project Agreement. Customer shall be responsible for all Materials once delivered by Model Concepts to Customer, and Model Concepts assumes no liability for Materials after they have been delivered to Customer.
Customer understands that Model Concepts’ performance is dependent in part on Customer's actions and timely provision of feedback, approvals, and other information requested by Model Concepts. Further, Customer understands that Model Concepts is relying on the accuracy and completeness of all information provided by Customer in performing the Services, and that the Deliverable(s) are intended for the specified interior and/or exterior areas of the Customer's property as represented by Customer (as specified in the relevant Project Agreement ). Accordingly, Customer will provide Model Concepts with the necessary items, information and assistance specified in the relevant Project Agreement (or otherwise reasonably requested by Model Concepts) in a timely manner. Customer shall be solely responsible for any delays, damages, losses, liabilities, delays, or expenses arising from or relating to Customer's failure to provide Model Concepts all necessary information and assistance in a timely manner, Customer’s breach of this Contract, or Customer’s provision of inaccurate information or other delay.
Review & Acceptance
Customer will review each Deliverable immediately upon delivery by Model Concepts. If the Deliverable does not conform with the specifications set out in the Project Agreement, Customer must provide Model Concepts with written notice of such nonconformity within three (3) days of delivery (the “Acceptance Period”). Upon receipt of such notice, Model Concepts will review the Deliverables and will use reasonable efforts to correct any material nonconformities specified in the notice. The provisions above shall be reapplied until the Deliverable is accepted, provided that, after the second (or any subsequent rejection notice) either party may terminate this Contract upon ten (10) days’ notice. A Deliverable may not be rejected for a previously uncited failure that was reasonably discoverable in a previously submitted version of the Deliverable.
Customer understands and agrees that Model Concepts shall not be providing any Construction Services in connection with this Agreement or the Project. Customer may choose to select a Contractor through the Model Concepts Platform at Model Concepts’ pre-negotiated rates; however, Model Concepts will not be involved in the performance of the Construction Services and any agreement relating to the Construction Services will be between the Customer and the Contractor directly. CUSTOMER HEREBY RELEASES MODEL CONCEPTS FROM ANY CLAIMS, DEMANDS, OR LIABILITIES ARISING FROM OR RELATING TO THE CONSTRUCTION AGREEMENT BETWEEN CUSTOMER AND THE CONTRACTOR OR OTHERWISE RELATING TO THE CONSTRUCTION SERVICES. Customer acknowledges and agrees that any timelines provided in the Project Agreement are estimates only and are subject to the Construction Agreement entered into between Customer and the Contractor. Customer further acknowledges and agrees that the scope of work set out in the Project Agreement is based on the information known at the time of entering into this Agreement. Customer acknowledges, understands, and agrees that conditions or circumstances may exist that are unknown to Model Concepts at the time of entering into this Agreement (including, but not limited to, the existence of mold, asbestos, latent site conditions, concealed plumbing, dry rot, knob and tube wiring replacement, changes to or relocation of pipes due to conflict with recessed fixtures, plumbing upgrades to meet code, large obstructions (such as a concrete block or otherwise) that need to be removed to achieve a new layout, walls, floors, or ceilings out of level, rerouting plumbing pipes/vents for layout changes, or furring out of walls to accommodate plumbing lines or recessed accessories). Customer acknowledges and agrees that, to the extent any unforeseen conditions are discovered at the Project Site that impact the Project cost, expected timeline, or any other aspect of the Project, Customer will work together with the Contractor to revise the scope of work in the Project Agreement as appropriate through a Change Order. Additionally, Model Concepts reserves the right to change the Contractor assigned to your Project if Model Concepts determines that Contractor cannot comply with the terms of its agreement with Model Concepts. Model Concepts will use reasonable efforts to substitute a Contractor of similar capabilities and at similar cost. You will be required to execute a Contract with any substitute Contractor. Any changes to the Project Fee made as a result of a change to the Contractor are subject to your prior approval.
Release of Responsibility for Contractors or Contracting Services
Model Concepts, which operates a service that includes connecting Contractors and individuals, is not an agent of either Contractors or such individuals, and does not have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of any Contracting Services provided in connection with any Project, nor of the integrity, responsibility or any of the actions or omissions whatsoever of any Contractors. You acknowledge and agree that Model Concepts will have no responsibility or liability relating to (i) compliance with CEPA Lead laws and regulations, OSHA safety requirements and other laws, regulations and rules relating to the Contracting Services provided by Contractors, or (ii) compliance with provincial or local licensing regulations applicable to Contractors. Model Concepts takes reasonable commercial efforts to screen Contractors using reasonable background checks, reference checks and interviews. We also take reasonable steps to verify that Contractors have obtained applicable province licenses and insurance/bonding. However, Model Concepts does not independently verify information from third party sources. You acknowledge that Model Concepts is not liable for misrepresentations or misleading or inaccurate information supplied by Contractors or third party sources, and you release Model Concepts (and its officers, directors, agents, investors, subsidiaries, parents and employees) from any liability in connection therewith.
Because Model Concepts is not a party to the Contract between you and the Contractor and is not involved in the completion of the Contracting Services, if you have a dispute with a Contractor, you release Model Concepts (and its officers, directors, agents, investors, subsidiaries, parents and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes (“Dispute Liabilities”), as further provided in the Liability Disclaimer and Release provision below
LIMITATION OF LIABILITY
Waiver of Consequential Damages
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO MODEL CONCEPTS PURSUANT TO THE APPLICABLE PROJECT AGREEMENT IN THE 6 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
No Liability for Third Party Expenses
CUSTOMER ACKNOWLEDGES AND AGREES THAT MODEL CONCEPTS SHALL NOT BE LIABLE FOR ANY THIRD-PARTY FEES OR EXPENSES THAT CUSTOMER MAY INCUR AS A RESULT OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, LODGING, HOUSING, OR ACCOMMODATION COSTS, PERMITTING FEES, OR ANY OTHER THIRD-PARTY FEES AND EXPENSES, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN AN PROJECT AGREEMENT. CUSTOMER AGREES THAT ANY TIMELINES PROVIDED BY MODEL CONCEPTS ARE ESTIMATES ONLY AND MAY BE ADJUSTED BASED ON PROJECT REQUIREMENTS, AS DETERMINED BY MODEL CONCEPTS IN ITS REASONABLE DISCRETION. CUSTOMER ACKNOWLEDGES AND AGREES THAT MODEL CONCEPTS SHALL NOT LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM A DELAY IN DELIVERY OF THE SERVICES OR ANY DELIVERABLE UNDER AN PROJECT AGREEMENT.
All intellectual property rights created in connection with the Services shall be owned by Model Concepts. The Model Concepts name and logos are trademarks and service marks of Model Concepts (collectively the “Model Concepts Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Model Concepts. Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Model Concepts Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Model Concepts Trademarks will inure to Model Concepts’ exclusive benefit.
From time to time during the Term of this Agreement, either Party may disclose or make available to the other Party Confidential Information of the Disclosing Party. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy. For purposes of this Section only, Receiving Party's Group shall mean the Receiving Party's affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
USE OF IMAGES
Customer hereby grants Model Concepts the right to photograph the Project, including before, during, and after completion of the Services, for Model Concepts’ portfolio and/or marketing purposes, including online use. Upon request from Model Concepts, Customer agrees to accommodate Model Concepts’ reasonable requests for photography. Model Concepts will not publish, without Customer’s express permission, Customer’s full name, address, or any other sensitive information relating to Customer. The photography session costs will be borne and paid by Model Concepts. In line with standard industry practice, Model Concepts may include Customer’s first name or initials as part of a list of current or past clients for marketing purposes.
BINDING ARBITRATION AGREEMENT
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in the city in which the Project is located, before one arbitrator. The arbitration shall be administered by a third party arbitrator to be appointed by Model Concepts. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
If Model Concepts is rendered wholly or partly unable to carry out its obligations under this Agreement due to a Force Majeure Event, Model Concepts’ obligations will be suspended during the period of the Force Majeure Event, and Model Concepts shall use its commercially reasonable efforts to remedy the cause of such Force Majeure Event in a reasonably timely manner. If a Force Majeure Event extends for a period of thirty (30) days or more, then either Party shall have the right to terminate this Agreement upon written notice to the other Party.
14. INSURANCE; WAIVER OF SUBROGATION
Customer and Model Concepts waive all rights against each other and against all other subcontractors for loss or damage to the extent reimbursed by any property or equipment insurance applicable to the work, except such rights as they may have to the proceeds of such insurance. If any applicable policies of insurance require an endorsement or consent of the insurance company to provide for continued coverage where there is a waiver of subrogation, the Customers of such policies will cause them to be so endorsed or obtain such consent.
The parties are independent contractors, and nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between them. Neither party shall be authorized to contract for or bind the other party in any manner whatsoever.
Except as otherwise provided herein, all notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the first page of the Signed Contract (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Section.
Entire Agreement; All Other Agreements Superseded
The Parties agree and acknowledge that, during the proposal process, Model Concepts and Customer may have discussed different plans, pricing options, services, deliverables, timelines, and other details relating to the proposed project and Services. Notwithstanding the foregoing, Customer and Model Concepts hereby expressly acknowledge and agree that any prior proposals, discussions, agreements, or understandings are superseded by this Agreement and the Project Agreement, and that this Agreement, together with any Project Agreements issued hereunder, is the entire agreement and understanding between the Parties. The Parties further acknowledge and agree that, during the course of providing the Services, Model Concepts and Customer may discuss different plans, pricing options, services, deliverables, timelines, and other details relating to the proposed project and Services. Notwithstanding the foregoing, Customer and Model Concepts hereby expressly acknowledge and agree that any discussions, agreements, or alleged understandings between the Parties are not valid unless agreed in a Change Order signed by both Parties. This Agreement, together with any Project Agreements or Change Orders validly issued hereunder (or any other documents expressly incorporated herein by reference), constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
Order of Precedence
In the event of any conflict between the terms and provisions of these Terms of Services and those of any Project Agreement, Change Order, or other document issued hereunder, then these Terms of Service shall control unless expressly set forth otherwise in a document signed by both parties.
Customer may not assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without Model Concepts’ prior written consent. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance by Customer in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
No Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
Amendment and Modification; Waiver
This Agreement may be amended, modified, or supplemented only by an agreement in writing signed by each party hereto. No failure to exercise any rights, remedy, power or privilege (“Right(s)”) arising from this Agreement shall operate or be construed as a waiver thereof. No single or partial exercise of any Right hereunder precludes any other or further exercise thereof or the exercise of any other Right.
No invalidity, illegality, or unenforceability of any provision herein in any jurisdiction, shall affect any other term or provision of this Agreement or invalidate or render such provision unenforceable in any other jurisdiction. If any provision is determined to be invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible.
This Agreement shall be governed by and construed in accordance with the internal laws of the province in which the Project is located without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction. Each party irrevocably waives any right to trial by jury. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
Equitable Relief; Cumulative Remedies
Each party acknowledges that a breach of the (Intellectual Property Rights; Ownership) section or the (Confidentiality) section may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation. In the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief. Except as expressly set forth in this Agreement, the right and remedies under this Agreement are cumulative and in addition to any other rights or remedies available at law or in equity or otherwise.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Any terms under this Agreement that, by their nature, would be expected to survive termination or expiration of this Agreement, shall survive such termination or expiration.
The following terms, when capitalized in this Agreement (including in a Signed Contract), shall have the meanings set out below:
A written proposal from Model Concepts to Customer setting out the Services to be provided to Customer, which is accepted by Customer. Customer hereby agrees that all Project Agreements constitute a legally binding contract between Model Concepts and Customer, and all Project Agreements shall be governed by these Terms of Service.
An amendment to a Project Agreement that is signed by both Parties and expressly references the relevant Project Agreement.
Confidential Information means (i) the terms of the Project Agreement; (ii) any non-public, proprietary, and confidential information of the Disclosing Party, whether disclosed in writing or orally, that a reasonable person would expect to be treated as confidential; (iii) any information, documents or communications relating to a dispute between the Parties. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of Section 9 of these Terms of Service.; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.
An agreement for Construction Services between Customer and the Contractor.
The construction services provided by the Contractor under a separate agreement between the Customer and the Contractor.
The contractor selected by Customer to perform the Construction Services.
Customer’s failure to comply with any of its obligations under this Agreement or the applicable Project Agreement , including, but not limited to, Customer’s obligations under Sections (Fees), (Changes to Services) Section, (Unforeseen Conditions) Section, (Customer Obligations) Section, any failure by Customer to make design decisions in a reasonable time period (or as otherwise specified in the Contract), or if Customer shall be adjudged bankrupt; become insolvent; file or be subject to any arrangement, reorganization or other bankruptcy proceedings; be subject to any receivership proceedings; make an assignment for the benefit of creditors; become deceased or is determined to be mentally incompetent (if an individual); or dissolve or terminate its existence (if a business entity).
Any deliverable identified in a Project Agreement, including any design deliverables, drawings, renderings, mock-ups or materials ordered by Customer.
The design services described in the Agreement.
The Customer Contact or Model Concepts Contact, as applicable, as identified in the applicable Project Agreement.
A Party disclosing Confidential Information to the other Party under the Confidentiality Section of these Terms of Service.
Force Majeure Event
Any event or circumstance that is outside the reasonable control of a Party, such acts of God, epidemics, pandemics, landslides, mudslides, explosions, fires, storms, hurricanes, tornados, high-water washouts, lightning, earthquakes, severe or unusual weather conditions, floods or similar cataclysmic event, infectious diseases of a contagious nature, acts (or failure to act) of governmental authorities, acts of public enemy, wars, armed conflict, blockades, civil disturbance or insurrections, riots, acts or threats of terrorism, sabotage, lockouts, strikes or other labor issues/difficulties or industrial disturbances (suffered by a Party), governmental actions such as the enactment of statutes, laws or regulations frustrating the purpose of this Agreement or the Project, failure of Model Concepts’ Suppliers to comply with their obligations to Model Concepts, changes in law, failure to obtain or changes in authorizations or permits that are not the direct fault of Model Concepts, interruptions in supply chains, emergencies at the Project, and any other cause or causes, whether of the kind herein enumerated or otherwise, not within the reasonable control of such Party.
Intellectual Property Rights
All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Model Concepts in the course of performing the Services.
Model Concepts Services
The services provided through the Model Concepts Platform, including project design services, materials selection services, materials procurement, project management, contractor selection services, and payment processing services.
Model Concepts and/or Customer, as the context requires
The renovation project described in a Project Agreement.
The location of the Project
The Party receiving Confidential Information from the other Party under Section 9 of these Terms of Service.
The services identified in the applicable Order From.
Any period of time during which the Services are suspended in accordance with the terms of this Agreement.
Terms of Services
These Terms of Service.