TERMS OF SERVICE
A. ENTIRE AGREEMENT. These Terms and Conditions, in combination with those documents incorporating them by reference, constitute the entire agreement (the “Agreement”) between Dominique Higgins (“Company”) and any users (“Clients”) Company has granted access to the website dominiquehiggins.com, or any users who engage the Company for the performance of the individually priced consulting services: “land use summary report”, “list of probates subject to overbid” (the “Services”). This Agreement supersedes all prior proposals or negotiations between the parties with respect to the subject Services. In the event of any conflict between these terms and conditions and the provisions of any order or other document, email, or communication transmission, these terms and conditions shall control unless the conflicting document expressly supersedes specific provisions hereof. This Agreement may not be modified except in writing executed by both parties.
NOTE: Dominique Higgins is licensed as a real estate broker, however does not operate in this capacity when providing the Services. NO agency relationship is implied in this Agreement.
B. SERVICES. The Services will be performed in material compliance with the provisions of the Agreement. Client has reviewed the Agreement in detail and agrees that the Services are appropriate to meet Client’s needs and requirements. Unless specified elsewhere in the Agreement, Company shall furnish all technical and professional services, including labor, material, supplies, equipment, transportation, accommodation, subsistence and supervision of Company personnel, to perform the Services. Client acknowledges that Company may utilize third-party service providers in the performance of its obligations hereunder. Company shall at all times be an independent contractor and no persons involved in connection herewith shall be considered employees of the Client for any purpose.
Additionally for “Land Use Summary Report” Service the following terms apply:
All material presented herein is intended for information purposes only. While, this information is believed to be correct, it is represented subject to errors, omissions, changes or withdrawal without notice. Due to the nature of the report, the information is subject to change and Client understands they retain total due diligence as to the veracity of the findings. Reports received after 8pm PST will be considered received the next business day, and will be completed no later than one business day following that, unless placed on a rush, in which case they will be processed within two hours. The 15 minute follow up call is optional, and is solely to answer any questions as to the findings. At no point is the report to be considered an opinion or recommendation as that is not the intent. Company will call Client on the same business day of delivery. Thereafter it is Client’s responsibility to call Company within one week to discuss the findings, thereafter Service is considered complete in full.
Additionally, for “List of Probates Subject to Overbid” Service the following terms apply:
All material presented herein is intended for information purposes only. While, this information is believed to be correct, it is represented subject to errors, omissions, changes or withdrawal without notice. Due to the nature of the report, the information is subject to change and Client understands they retain total due diligence as to the veracity of the findings. The list is generated every Monday (or Tuesday when Monday is a holiday). Orders placed between Monday 8:00am PST and Friday 4:30pm PST will receive the list generated the Monday of that week. Orders placed after Friday 4:30pm PST will receive the list generated the following Monday.
C. FEES, INVOICING AND PAYMENT. Charges for all services shall be paid prior to furnishing of service. Due to the specialized, service based nature of the Services, there are no refunds. Should any invoice be in dispute, only that portion of the invoice in dispute may be held in abeyance until the dispute is resolved. Company may suspend or terminate further performance under this or other agreements with Client upon reasonable notice for the non-payment of invoices. Company shall have no responsibility or liability in connection with the Services, and Client shall have no right to rely on any report or other materials delivered, until all invoices have been paid in full.
D. CONFIDENTIALITY. Information which the Client identifies as confidential upon provision to Company and which is not publicly available will be treated as confidential. Company shall have no liability to Client or any third party for notifications or reports made in accordance with such laws or orders and Client shall defend, indemnify and hold harmless Company from and against any and all claims, demands, liabilities, costs and expenses, including reasonable attorney’s fees, incurred by Company in connection with such notifications or reports.
E. INDEMNIFICATION. Company agrees to indemnify and hold Client harmless from any damage, liability or cost (including reasonable attorney’s fees and costs of defense) to the extent caused by Company’s negligent acts, errors or omissions in the request of services under this Agreement. Client agrees to indemnify and hold Company harmless from any damage, liability or cost (including reasonable attorney’s fees and costs of defense) to the extent caused by Client’s negligent acts, errors or omissions and those of its contractors, subcontractors or anyone for whom the Client is legally liable and arising from the project that is the subject of this Agreement, and for any liabilities incurred by Company in excess of those limitations contained in Section F below. Each of the foregoing indemnities is conditioned upon the indemnified party (i) providing prompt notice to the indemnifying party of any potential claim, (ii) tendering control of the defense and/or settlement of such claim to the indemnifying party, and (iii) reasonably cooperating with the indemnifying party in the defense and/or settlement of such claim.
F. LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, ANY LOSS OF INCOME, PROFITS OR DATA OR DIMINUTION OF VALUE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF, OR HAD REASON TO KNOW OF, THE POSSIBILITY OF SUCH DAMAGES. CLIENT AND COMPANY AGREE THAT COMPANY’S AGGREGATE LIABILITY TO THE CLIENT AND ALL THIRD PARTIES IN CONNECTION WITH THE SERVICES SHALL BE LIMITED TO GENERAL MONEY DAMAGES NOT TO EXCEED TWO HUNDRED DOLLARS ($200.00). THIS LIMITATION SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION OR LEGAL THEORY PLED OR ASSERTED. THE PARTIES ACKNOWLEDGE THAT THEY HAVE CONSIDERED THE ALLOCATION OF RISK PRESENTED BY THE PROVISIONS OF THIS PARAGRAPH AND THAT THE ALLOCATION IS REASONABLE UNDER ALL FACTS AND CIRCUMSTANCES SURROUNDING THE AGREEMENT.
G. WARRANTY. SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Company warrants that the Services will be performed in a good and workmanlike manner in accordance with prevailing standards and practices applicable to the Services at that time. COMPANY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. All material presented herein is intended for information purposes only. While, this information is believed to be correct, it is represented subject to errors, omissions, changes or withdrawal without notice. Information is obtained from various sources and will not be verified by Company. There is no guarantee of accuracy of all data including measurements, conditions, and features of property. All property information should be verified by your own attorney, architect or zoning expert. All information is subject to change.
ANY MATERIAL DOWNLOADED, VIEWED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT USER'S OWN DISCRETION AND RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER'S COMPUTER SYSTEMS AND NETWORKS, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD, VIEWING OR USE OF ANY SUCH MATERIAL.
H. RELIANCE. Client understands that Services governed by this agreement are for their sole use and benefit and agrees not to authorize any third party to rely on the Services, unless they have the prior written consent of Company.
I. TERMINATION. This Agreement may be terminated at any time by mutual consent or by notice by either party in writing prior to completion of Services only. In the event of termination prior to completion of the Services (i) by Client for any reason, or (ii) by Company due to breach of this Agreement by Client, Company reserves the right to complete such analyses and records as are necessary to place its files in order and, where considered by Company as necessary to protect its professional reputation, to complete a report on Services performed to date. Company shall have the right to receive a reasonable termination charge to cover half of the fees of the requested Services.
J. DISPUTES AND ARBITRATION. This Agreement shall be governed by, subject to, and construed in accordance with the laws of the county of Los Angeles State of California Country of the United States of America. Any controversy, claim or action arising out of, or related to, this Agreement, the breach thereof, or the coverage of this arbitration provision shall be settled by arbitration which shall be conducted in the state of California in accordance with the Commercial Arbitration rules of the American Arbitration Association as such rules shall be in effect on the date of delivery of demand for arbitration. The arbitration of such issues, including the determination of the amount of any damages suffered by either party hereto by reason of the acts or omissions of the other, shall be to the exclusion of any court of law except for enforcement of an arbitrated award. The decision of the arbitrators, or a majority of them, shall be final and binding on both parties and their respective successors and assigns. If the arbitrators determine that a party has initiated a recovery action on a basis inconsistent with the provisions of this Agreement, the initiating party shall, without exception, be assessed all costs incurred by the responding party. Except as identified above, each party shall pay the fees of its own attorneys, and the expenses of its witnesses and all other expenses connected with the presentation of its case. The costs of the arbitration, including the cost of the record or transcripts thereof, if any, administrative fees, fees of the arbitrators, and all other fees and cost shall be borne as determined by the arbitrators.
K. MISCELLANEOUS. The failure of either party to exercise any right or remedy hereunder or to take any action permitted on a breach by the other party shall not be deemed a waiver of such right or remedy or of any other rights or subsequent breach of a like or different nature. The provisions of this Agreement are severable. The invalidity of any part of this Agreement shall not invalidate the remainder of the Agreement or the remainder of any portion hereof. Neither party shall initiate any claim or action against the other more than eighteen (18) months after completion of the Services. With the exception of Company submittals to Client, all documents, including, without limitation, historical research, field data, field notes, calculations and analyses prepared as instruments of service shall remain the property of Company. Company will retain all pertinent records relating to the services performed for a period of eighteen months following the completion of Company’s services. After this period, they may be discarded. Neither party shall assign their rights under this Agreement to any third party without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed. Each party, and the person executing on behalf of such party, represent and warrant that such person has the full power and authority to bind the party represented.
L. COMMERCIAL USE. Due to the proprietary nature of the Services, Client agrees not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, deliverable of the Service, or access to the Service or site.
M. LINKS. The Site may provide links to other World Wide Web sites or resources. Because Company and its representatives have no control over such sites and resources, Client acknowledges and agrees that Company and its representatives are not responsible for the availability of such external sites or resources, and does not endorse nor is responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. User further acknowledges and agrees that Company and its representatives shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any third party sites or resources, or any goods or services available on or through any such site or resource.