Upon your use of the website after the effective date indicated below, you acknowledge that you read, understand, accept and agree to be bound and are bound by all the terms and conditions of this Agreement, including the other agreements referenced herein. EstimatorPerHour.com (“EPH” for brevity) may amend these terms and conditions without prior notice to you. The revisions shall take effect immediately upon posting, unless a specific date of effectivity is reflected under the amended Agreement. It shall be the obligation of the members to check the website regularly for updates and/ or amendments.
EPH is a venue where customers find the right building designers and technical construction professionals (“Contractors”). This is the site that serves as a platform to allow customers to hire the services of Contractors. In order to make the hiring process efficient, we provide the facility for the Customers and Contractors to negotiate and transact business. We have no control over the representations made by the Customers and Contractors in this site and during the process of procuring business. We also do not guarantee the ability of the Customers and Contractor to comply with what is incumbent upon them under their service agreement. In the event of any conflict between Customers and Contractors which may arise from their agreement, such as but not limited to a breach, EPH is not in any way be liable, nor will EPH me made to interfere in any proceeding which may arise therefrom, unless otherwise required by a court of law.
EPH is also a support service provider. We render cost estimating support services to members as they may feel necessary for the completion of the project(s). Thus, this Agreement is not applicable to the estimating support services offered by EPH.
1. Definition of Terms
For purposes of this Agreement, the following words and phrases shall, where they appear in capital letters have the following meanings:
ACCEPTED PROJECT – means work concerning architectural designs, engineering calculations, cost estimating, drafting, building or construction and any design and construction supports services which a Contractor has agreed to undertake for a Customer.
AGREEMENT – means a binding instrument that provides the Terms and Conditions of the Customer and the Contractor that enters business relationship by using this website.
BIDDING – means the process where the Client posted the Job within EstimatorPerHour's website to receive proposals from interested Contractors for a particular project.
CONTRACTOR – means a business entity or individual offering technical services like architectural design, engineering calculations, cost estimating, drafting, building or construction, and other related design and/or construction support services.
CUSTOMER – means an individual or business entity who posted job, awarded and/or have an agreement with a Contractor for a particular project related to EstimatorPerHour job categories.
EPH – means EstimatorPerHour or EstimatorPerHour.com.
EPH WALLET – means a feature to make money transactions within EstimatorPerHour website. It indicates how much available money the member has into it to award the project, pay invoice(s), pay refund(s) as needed, upload funds into it if needed and transfer the money to their own bank accounts.
PRACTICAL COMPLETION – means the earliest of either: (i). completion of the Accepted Project; or, (ii). determination or termination of the Contract between the Contractor and the Customer for any reason.
RESTRICTED INFORMATION - means any information which is disclosed by either Customer and Contractor, and/or its subsidiaries to the other party pursuant to or in connection with the Agreement (whether received, learned or accessed orally, visually, electronically, in writing, or otherwise without the requirement that the information be marked, labeled or otherwise identified or expressly stated to be confidential or marked as such)
SERVICE FEE – means the fee payable to EstimatorPerHour under the provision of Paragraph 6.
TRANSACTION FEE – means a fee charge by the third-party payment gateway such as Paypal, Dwolla, Stripe and the likes.
WORKFLOW ROOM – means a feature within EstimatorPerHour’s website where the Customer and Contractor communicate each other within that particular project.
To register in the website, you need to be least 18 years old or of legal age competent under your jurisdiction to enter into a binding contract. If you are registering on behalf of a business or corporate entity, you acknowledge and represent that you have the proper authority to bind the business or corporate entity on whose behalf you are registering.
You should always provide true, accurate and complete contact information, including a valid email address. You should not misrepresent your identity. In the event that a misrepresentation on your part is discovered, EPH reserves the right to cancel your m embership or registration, without regard to any legal action which EPH or the injured party may pursue as the circumstances may warrant.
We reserve the right to reject your registration at any time and for any reason and without notice to you.
3. Contractual Relationship
Customers and Contractors hereby acknowledge that the contractual relationship created between them in using this website shall be independent contractors. This Agreement does not create a partnership, joint venture, agency or employment relationship between Registered Users. As such, neither party, or their respective employees, directors, officers, managers, representatives, and agents have not authority to speak for, or represent, make any warranty, representation or agreement for, incur any liability for, or otherwise commit or obligate the other party or any of its subsidiaries in any way.
This Agreement does not create or form a joint venture, partnership, principal and agent or employer-employee relationship between EPH and the Users and/or Registered Users, or any fiduciary relationship for that matter. In the same manner, neither Customers or Contractors, or their respective employees, directors, officers, managers, representatives, and agents have not authority to speak for, or represent, make any warranty, representation or agreement for, incur any liability for, or otherwise commit or obligate EPH or any of its subsidiaries in any way.
In this regard, EPH disclaims any right, power or authority to direct or control the manner of performance as agreed upon by and between the Customers and Contractors, except those which may be expressly provided in this AGREEMENT.
Each party shall be solely responsible and liable for all compensation, benefits, withholding taxes, contributions, insurance premiums and other payments with respect to their corresponding directors, officers, managers, employees, agents or representatives, and any other persons who may be used to perform any aspect of their Agreement.
It is the sole responsibility of the Customers and Contractors to keep their business arrangements within the legal boundaries of an independent contractor services agreement and to determine that they are doing business within the legal limits of such relationship. EPH disclaims any responsibility for that determination, and for any and all consequences emanating from any mistake, oversight, fraud or error by the Registered Users.
The Customers and Contractors indemnifies and holds EPH and its respective officers, directors, agents, harmless from any and all claims, actions, losses, judgments or expenses including reasonable attorney’s fees filed by its own employees, arising from or in any way connected with the work performed during the term of this Agreement.
4. Service Standards
Customer is responsible for specifying its building and construction requirements and needs, identifying the criteria for choosing the Contractor, screening, engaging, investigating, accepting and paying for the Contractor’s Services. Customer shall undertake the foregoing responsibilities in good faith, in a timely and professional manner, consistent with the industry practice, and in conformity with the Contractor’s nature of business.
Contractor is responsible in making, presenting and posting through the Workflow Room its architectural design, engineering calculations, cost estimations and related support services required for building design and construction as indicated in the Customer’s RFP. Contractor shall undertake to post an accurate content, and shall ensure that it has the competence and commitment to perform, in a good faith and in a timely and professional manner, all the obligations generated by its posting. It is the responsibility of the Contractor to ensure that the Customer understands its business practice and policies as well as the terms and conditions pertinent to its building design and related online support services. Contractors shall be responsible, at its own expense, for the equipment, tools and other materials. Contractor shall be responsible to obtain and keep the appropriate insurance as necessary, at its own sole cost and expense, in accordance with the generally acceptable industry standards.
5. Warranties and Liability
In addition to the undertakings, representations and warranties made by the Customers and Contractors elsewhere in this Agreement, both parties further separately undertake, represent, and warrant that:
5.1 they have full power and authority to enter into this Agreement.
5.2 they have the absolute power and authority to execute and deliver, and perform all of its obligation under this Agreement; and any and all consents, authorizations, permits and licenses that are necessary for the execution, delivery and performance of, and to ensure the legality, validity and enforceability of this Agreement has been obtained, maintained, filed, registered and delivered, as the case may be.
5.3 they will not violate the terms of this agreement. Both parties shall defend, indemnify and hold EPH and its successors, assigns and licensees harmless from any and all claims, actions and proceedings, and the resulting losses, damages, costs and expenses (including reasonable attorneys' fees) arising from any claim, action or proceeding based upon or in any way related to any agreement both parties may enter into with each other in consonance herewith, or their employees, breach or alleged breach of any representation, warranty or covenant in this Agreement, and/or from their own acts or omissions or their employees.
5.4 there are no suits, actions or proceedings of whatever kind or nature that is pending, or, to its knowledge, threatened against them, the adverse determination of which might materially or adversely affect their ability to comply with their obligations under this Agreement.
5.5 Any violation by both parties of the foregoing as well as the other terms of this Agreement shall be considered a breach of this Agreement, and will be sufficient cause for the injured party to terminate this Agreement, without prejudice to other rights and remedies available in contract and in law. In such event, the Customer and Contractor shall continue to be held liable to EPH for any Service Fee, notwithstanding such breach.
5.6 Customers and Contractors shall not perform any act that will unduly prejudice or undermine fair play in the bidding process. The Customer shall not submit its own proposal to decrease the proposals made by Contractor, or the Contractor shall not make any bid contrary to its own Estimates, or use its associates, or employees do so. Users submitting quotes and proposals for the provision of services must be wholly Independent from the Customer of those services. Neither the Customer nor the Contractor shall use this site for advice only.
5.7 Customer and Contractor represent that they have the authority to enter into and carry out their responsibilities under the transactions they created using this site. Contractor warrants and represents that the execution, delivery and performance of its services under this Agreement does not and will not (1) violate any agreement, contract, undertaking or instrument to which it is a party or which is binding upon it, or (2) constitute a violation of any order, judgment or decree of any court, administrative body or authority applicable to it. Customer and Contractor shall exercise all reasonable care and diligence to prevent actions or conditions, which could result in a conflict with the other party’s best interests.
6. Payment of Fees
All payments between the Customer and the Contractor shall be processed through EPH website via Online Payment Facility. The specific amount of fees and charges referred to in this section are listed in the document entitled “Fees and Charges”.
Customer is required to provide funds equivalent to the deposit amount requested by the Contractor at the time of awarding the project and before the start of the work.
Transaction fees for payments made by the Customer to the Contractor shall be deducted accordingly as required by the third party Payment Facility.
Contractor shall pay eight percent (8%) service fee to EPH for all the work billed and paid by the Customer. The fee shall be deducted on pro-rata basis for each payment made by the Customer to the Contractor. This fee is automatically added to the Contractor's bid amount when submitted the bid to the Customer.
Contractor shall pay the transaction fees imposed and/or collected by third parties in connection with the withdrawal of funds from EPH wallet.
In the event of insufficient funds or the Contractor is unable to pay, EPH reserve the right to suspend the Contractor’s account until full payment of all sums due.
Upon using the online payment facility, the Customer and the Contractor warrant that that they are authorized to use the debit or credit card to make the payments. EPH shall not be accountable for failed or error in the transmission of funds/payments or monies arising from their acts or omissions, or due to the fault of the online payment facility, or both.
In the event the payment made by the Customer or Contractor is refused or declined by the card supplier or online payment facility for any reason, the Customer or Customer shall pay and not render EPH accountable for the fees and charges arising from it. If the card supplier or online payment facility declines payment, EPH is under no obligation to bring it to the attention of the Customer and/or Contractor. It is incumbent upon the Customer and/or Contractor to check with the Card Supplier or online payment facility (as the case may be) that payment has been deducted from the debit or credit account.
By accepting these terms and conditions, Customer and Contractor accept and acknowledge the authority of EPH to charge to the debit or credit card account (if you have provided those details) or otherwise the nominated online payment facility. Customer and Contractor should keep available credit in their credit card account and/or sufficient funds in their debit card account, or the online payment facility (as the case may be) to make the recurring card payments when due.
In the event the recurring payment collection fails, Customer and Contractor acknowledge and accept that EPH will make a second attempt to collect within five (5) working days after the first attempt. For the avoidance of doubt (and regardless of whether any installment terms have been agreed), if a second collection attempt fails the full amount owing to EPH shall immediately become due and demandable, which is equivalent to 8% of the bid amount. In addition, EPH reserves the right to charge an administration fee to cover its reasonable costs for any and all collection attempts; and such costs shall be applied to the account of the responsible party which shall be due for immediate payment.
Customer and Contractor acknowledge and accept that EPH reserves the right to review its fee structure, and implement an increase from time-to-time with due notice to the parties prior to the implementation of any changes. Customer or Contractor with Accepted Project in this site cannot close its account and shall continue to be liable for the fees under the current and existing rate until Practical Completion of the last of Accepted Project, and its account shall remain open until all due payments have been made. Otherwise, changes in the EPH fees are effective immediately after such notice is given and any Accepted Projects initiated from the time of notice and/or publication of such rates shall be charged the Service Fee at the newly published rate. Customer and Contractor acknowledge and accept that EPH may choose to temporarily change its Service Fees for promotional events or new services, and such changes are effective upon posting of the temporary promotional event or new service on the sites or in EPH applications.
Contractor is solely responsible and exclusively liable for complying with all applicable local, state, federal, and international laws pertinent to the payment of taxes and contributions in connection with the moneys paid to the Contractor under this Agreement and/or arising from the use of this site. EPH and/or the Contractor are not under any obligation to deduct any part of the money due to the Contractor for payment of taxes or contributions to any government agency or instrumentality on behalf of the Contractor in any jurisdiction. Upon the request of the Customer or EPH, Contractor shall provide proof of payment of appropriate taxes and contributions referred under this paragraph.
8. Intellectual Property Rights
Any and all matters relative and pertinent to intellectual property rights over work products, ideas, concepts, information, materials, processes, data, programs, artworks, designs, technology, and other copyrightable works developed by the Customer and/or the Contractor in connection with the services under this Agreement shall be determined and agreed by both parties, shall be governed by applicable rules, regulations and policies of the linked and/or integrated website with its programs and applications dedicated for the uploading/downloading of documents and materials necessary to initiate, process and consummate the hiring services using this site. Customers and Contractor shall hold EPH free and harmless of any and all claims for intellectual property right infringements.
The intellectual property works and products referred to under this paragraph are not considered as materials published in this site and are not covered by the intellectual property provisions under the User Agreement.
The Customers and Contractors agree that at all times within the duration of this Agreement, it will keep confidential and not divulge, communicate, or use RESTRICTED INFORMATION, except for their exclusive use during the Term of this Agreement to the extent necessary to perform the services required.
The Customers and Contractors shall, except as may herein be provided, at all times during the continuance of this Agreement and after its termination:
- use its best endeavor to keep all RESTRICTED INFORMATION confidential and not disclose any RESTRICTED INFORMATION to any unauthorized person; and
- not use any RESTRICTED INFORMATION for any purpose other than the performance of its obligation under the Agreement;
Neither the Customers or the Contractors shall disclose any RESTRICTED INFORMATION to:
- any governmental or other authority or regulatory body unless otherwise the disclosure is required to be made pursuant to applicable law or order of a competent court or recognized government agency. Prior to such disclosure, the other party shall refer the intended/requested disclosure to the party concerned immediately.
- any of its employees hereto or of any of the aforementioned persons, except on a "need to know" basis or to such extent as is necessary for the purposes contemplated by this Agreement, or as is required by law and subject, in each case, the divulging party shall endeavor to ensure that the person to whom any RESTRICTED INFORMATION is so disclosed keeps the same confidential and does not use the same except on a purpose for which the disclosure is made. In the event that any of the employees to whom RESTRICTED INFORMATION has been disclosed violates the provisions of the extant in this Agreement, the erring party shall be held solely responsible for any damage, which such disclosure may cause without any liability on the party of EPH.
The provisions under this clause shall not apply in the following circumstances where RESTRICTED INFORMATION.
- is at the date of this Agreement, or thereafter becomes, public knowledge through no fault of any of the parties hereto (provided that in doing so the party concerned shall not disclose any RESTRICTED INFORMATION which is not public knowledge); or
- it can be shown by the party concerned, to the reasonable satisfaction of the other party, to have been known to it prior to its being disclosed by the parties to each other.
All RESTRICTED INFORMATION disclosed by either party or which has come to the knowledge of the receiving party shall remain the exclusive property of the divulging party.
Customer and Contractor agree to defend, indemnify and hold the EPH free and harmless from and against any and all suits, claims, actions, losses, costs, penalties and damages of whatever kind and nature, including attorney’s fees and costs by reason of any and all claims and demands on it, its officers and employees, arising by any third party due to or arising from breach of this Agreement, or of any infringement of any law or rights of a third party in the course of using this site or services.
Either Party may immediately terminate this Agreement and their contract by giving written notice to the other Party should one of the following defined events or circumstances arise:
10.1. Non-payment of any sum of money within seven (7) calendar days from due date;
10.2. Failure of the breaching party to remedy the breach of this Agreement or related agreement within ten (10) days from the date of the written demand by the non-breaching party;
10.3. When an encumbrancer takes possession of, or when a receiver is appointed over, any of the property or assets of any of the parties;
10.4. When any of the parties voluntarily assign its assets and properties to its creditors, or becomes subject to an administration order;
10.5. When any of the parties has a bankruptcy order made against it, or goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under the Agreement), or anything analogous to any of the foregoing under the law of any jurisdiction occurs;
10.6. When any of the parties ceases, or threatens to cease, to carry on a business; or
10.7. When any of the parties becomes incapacitated to make independent decisions.
11. Effects of Termination
Upon the termination of the Agreement for any reason:
11.1. Any sum owing by either Party to the other under any of the provisions of the Agreement shall become immediately due and payable immediately upon written notice of such termination;
11.2. All clauses, either expressly or by their nature, pertinent to the period after the expiry or termination of the Agreement shall remain in full force and effect;
11.3. The termination shall not affect or prejudice any right to damages or other remedy which the non-breaching Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Agreement which existed at or before the date of termination;
11.4. Except as otherwise provided under subparagraph 11.1 and elsewhere in the Agreement and except in respect of any accrued rights, neither Party shall be under any further obligation to the other; and
11.5. Except to the extent required to enforce the continuing rights and obligations referred to in subparagraph 11.4, each Party shall immediately cease to use, either directly or indirectly, any confidential information, and shall immediately return to the other Party any documents in its possession or control which contain or record any confidential information.
Contracts are formed directly between Customers and Contractor, to which EPH is not privy. The negotiation, terms of contract, and any cancellations and its consequences are matters to be determined by the Customers and Contractors. However, the cancellation of the contracts between the Customers and Contractors does not result to the cancellation of the applicable provisions of this Agreement or of the agreements integral in the use of this site when the supply of building design, engineering calculations, cost estimating or any construction support services has commenced. Customer and Contractor agree and acknowledge that Service Fees are not refundable under any circumstances. It shall remain the obligation of both parties to immediately notify EPH in writing or in email of any cancellation of contract which was procured through the website, in consonance with this Agreement.
Customer is entitled to a full refund when the Contractor fails to respond in the Workflow Room within three (3) working days from the commencement of the Accepted Project. Customer is entitled to a refund of a sum of money agreed upon by the parties when any of the following circumstances occur:
13.1. Contractor did not deliver the work according to the specification of the Accepted Project or within the timescales indicated in the proposal;
13.2. Contractor did not meet the terms and conditions defined by the Customer to remedy the material breach within the period as may be agreed upon by both parties;
13.3. Contractor lost a dispute adjudicated between the Customer and the Contractor;
13.4. Any other grounds that may be mutually agreed upon by the Customer and the Contractor.
Customer acknowledges, agrees and warrants that it will not file any dispute or attempt to reverse payment through its credit or debit card, Bank or PayPal and the likes. Any attempts to seek a refund in this manner will result to an automatic suspension of the Customer's account with EPH. Customer agrees to fully indemnify EPH for any financial losses or damages arising from such acts. However, nothing in this provision shall affect the liability of both parties to EPH with respect to the Service Fees, which are not refundable under any circumstances.
14. General Provisions
All monetary amounts contemplated in this Agreement shall be in U.S. dollars.
In addition, Contractors and Customers likewise agree to indemnify and hold harmless, EPH, its employees and agents against all actions, claims and demands (including the cost of defending or settling any action, claim or demand) which may be instituted against EPH, its employees or agents howsoever arising against any and all losses (whether direct, consequential or special losses), liabilities, damages, costs, and expenses which any of them may incur or suffer arising out of or otherwise in connection with the performance of this Agreement by the Contractors and Customers, its personnel, its agents, employees or any permitted sub-contractor or any other person for whose acts or omissions Contractors and Customers are vicariously liable and so against any action, claim or demand by such personnel, employees or agents or their personal representatives or dependents.
The provisions of this Clause shall survive the termination of this Agreement.
Any illegal, invalid or unenforceable provision of this Agreement shall not affect the legality, validity and enforceability of any part of this Agreement, and shall deem deleted in this Agreement.
This Agreement and any claim or action related thereto shall be governed by and construed in accordance with the laws of the state of New York and the courts of the state of New York have exclusive jurisdiction over such claim and action. However, the parties shall endeavor to resolve the dispute through alternative dispute resolution, such as mediation or arbitration, before enforcing their rights in courts.
No rights, benefits, duties or obligations under this Agreement may be assigned, transferred or subcontracted without the prior written consent of the other party. In case the transferee or assignee is an affiliate of the assigning party, the other party shall not withhold its consent. The term “affiliate” means any subsidiary or holding company of the assigning party. In the event of any assignment under this provision, the assignee shall automatically be bound by the terms of this Agreement, and all rights of EPH as herein stated shall be enforceable against said assignee without need of notice.
The waiver or failure of either party to enforce any provision of this Agreement shall be nonrecurring.
This Agreement may be revised at any time by posting the amended terms on this site. Except as stated otherwise in this Agreement or elsewhere, all amended terms shall automatically be effective thirty (30) days after they are initially posted.
This Agreement is the final, complete and exclusive agreement of the parties pertinent to the subject matters covered hereof.