Mobile App Readiness Consultation
TERMS & CONDITIONS

Version 3, November 9, 2022

SECTION 1
“GG/GAD” shall mean, for the purposes of this Agreement, any employees, officers, owners, directors, partners of GG/GAD and any firms, consultants, vendors or individuals contracted and/or hired and/or retained by GG/GAD for the purpose of creating, delivering and or executing any aspect of the work product and/or services per this Agreement, unless specified or identified otherwise in the Agreement.

SECTION 2
The work and services performed by GG/GAD shall not be sold, given away, disposed of, given to another design professional(s) or firm or otherwise produce profit or gain from the sale, use or reproduction of files by the Client, his/their/its heirs, assigns or successors in interest individually either in part or whole, to a third party without the written consent of GG/GAD.

SECTION 3
Once the Client has authorized GG/GAD to begin the project as defined by the Scope of Work, the Client’s authorization, whether verbal or written, will indicate acceptance of this Agreement, even if the Agreement is not formally signed and executed.

SECTION 4
The Client has read and understands the attached Exhibits and accepts all of their terms and conditions.

SECTION 5
The MyDowntown Mobile app, artwork, concepts, and designs, and related copyrights shall remain the property of GG/GAD. The Client shall be permitted to use GG/GAD’s MyDowntown Mobile app, artwork, concepts and designs for the duration of this Agreement. If the Client terminates this Agreement, then the Client shall no longer have the right to use the app, the MyDowntown Mobile platform, or any of GG/GAD’s intellectual property such as, but not limited to, apps, programming code, artwork, concepts, designs, and slogans.

SECTION 6
If for any reason the project is terminated, GG/GAD’s time for services rendered, up to the date of termination, shall be due and payable in full. GG/GAD must be notified by certified letter, and the date of receipt of the letter shall be considered to be the date of termination.

SECTION 7
If the Client fails to make payments to GG/GAD in accordance with this Agreement, such failure shall be considered substantial nonperformance and cause for termination or, at GG/GAD’s option, cause for suspension of performance of services under this Agreement. If GG/GAD elects to suspend services, GG/GAD shall give seven days’ written notice to the Client before suspending services. In the event of a suspension of services, GG/GAD shall have no liability to the Client for delay or damage caused the Client because of such suspension of services. Before resuming services, GG/GAD shall be paid all sums due prior to suspension and any expenses incurred in the interruption and resumption of GG/GAD’s services. GG/GAD’s fees for the remaining services and the time schedules shall be equitably adjusted.

SECTION 8
If the Client wishes to provide GG/GAD’s design(s) or web development assets to another design, web development professional(s) or firm for the purpose of applying it to new design or web development applications based on GG/GAD’s work, then an additional payment shall be required if GG/GAD agrees, provided that the Client has paid in full to GG/GAD. When the fee has been paid, GG/GAD shall then provide a release permitting the other design professional(s) or firm to use GG/GAD’s work without copyright or design infringement. GG/GAD shall not be required to discuss, answer questions or provide any design or web development support that is preliminary in nature, assumptions, interpretations, etc. that may have been incorporated or required in order to make design or production assumptions in creation of the project. In addition, the Client acknowledges and understands that any design comps are preliminary in nature, and GG/GAD shall not be responsible for the correctness, errors or omissions of, or in any work prepared by, other design professionals based on GG/GAD’s conceptual design or technical specifications.

SECTION 9
In recognition of the relative risks and benefits of the Project to both the Client and GG/GAD, the risks have been allocated such that the Client agrees, to the fullest extent permitted by law, to limit the liability of GG/GAD and its officers, directors, partners, employees, shareholders, owners and sub-consultants to Client, his contractors, sub-contractors, consultants, sub-consultants and/or subsequent owners, for any and all claims (including claims by third parties), losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, including attorneys’ fees and costs and expert-witness fees and costs, so that the total aggregate liability of GG/GAD and its officers, directors, partners, employees, shareholders, owners and sub-consultants shall not exceed GG/GAD’s total fee for services rendered on this Project (the “Limitation Amount”), and further, in no event shall the Limitation Amount exceed the amount of insurance proceeds actually available to GG/GAD for the claim at issue at the time of settlement or final judgment net of any and all expenses paid or incurred on the claim at issue, payments made or incurred in connection with other claims made against GG/GAD, or any other circumstances which may reduce, impair, or eliminate the overall availability of such insurance to GG/GAD. It is intended that this limitation apply to any and all liability or cause of action, including without limitation active and passive negligence, however alleged or arising, unless otherwise prohibited by law. The Client specifically agrees that it has had the opportunity to negotiate this Limitation of Liability clause and to accept or reject its inclusion herein. GG/GAD shall have no responsibility or liability for any work except the work specified to be completed by GG/GAD under this Agreement.

SECTION 10
If the application of the project deviates from GG/GAD’s design or technical specifications without GG/GAD’s review and approval, then the Client releases GG/GAD from any and all liabilities related to such deviations incurred by GG/GAD throughout the course of rendering professional services on this project to the Client, his/their/its general or other vendors and subsequent owners design guidelines or specifications. GG/GAD reserves the right to invoice the Client for any and all time or expenses required to review submissions for deviations from GG/GAD’s design guidelines or specifications.

SECTION 11
The Client will be solely responsible for the back-up of any data that may deviate from the original files provided by GG/GAD after project completion. GG/GAD reserves the right to decline a request for this service and to select an appropriate fee method. Fees for this service may be at GG/GAD’s cost plus twenty-five percent (25%) or the actual time required, billed at our hourly rates. GG/GAD may also accept referral fees from vendors in accordance with industry standards. In all cases, a minimum fee of $100 shall be billable for this service plus all sales taxes due on the purchase(s).

SECTION 12
The Client expressly acknowledges that there is no implied warranty of fitness for a particular purpose or merchantability applicable to the services rendered by GG/GAD.

SECTION 13
Use of original artwork created by GG/GAD and photos provided by GG/GAD for the app is limited to 1) use in the app itself while the Client has an active and paid-in-full MyDowntown Mobile platform account; and 2) use in promoting the app, including brochures, direct mail, email advertisements, signs and banners. The Client agrees not to use MyDowntown Mobile-specific artwork and photos or other intellectual property in any other way, without GG/GAD’s written permission.

SECTION 14
The Client acknowledges that color is rendered differently on different media and technology and understands that color may vary depending on the display vehicle. In addition, quality of image and rendition of image may vary due to methods and process of reproduction. GG/GAD will not be held responsible for these variations due to these types of media and methods. GG/GAD will submit materials to the Client such as proof prints, galleys, press proofs, and screen captures for review and approval. The Client will be solely responsible for final approval on all copy. GG/GAD will not be responsible for typographical errors or misprints that appear throughout the life cycle of the project.

SECTION 15
The Client agrees that in the event of any conflict between provisions of the terms and conditions set forth in this Agreement (including the attached Exhibits), and those of any other documentation, such as a purchase order issued to GG/GAD ordering the work outlined in this Agreement, the terms and conditions of this Agreement shall control. The issuance of a purchase order shall evidence your consent to the terms and conditions herein described. Changes to the terms and conditions contained in this Agreement may only be issued in writing by GG/GAD to the Client.

SECTION 16
If provided, GG/GAD’s review of submittals such as proofs/galleys, consultants’ drawings, content or product samples will be general in nature to determine conformance with the design concept of the project. The Client agrees that GG/GAD’s review of these submittals shall not relieve his contractors or consultants of their responsibility for the accuracy of: press proofs, digital files, file resolution. GG/GAD’s review or approval of submittals shall not be construed as approving departures from design intent guidelines or requirements or as acceptance of responsibility by GG/GAD.

SECTION 17
Concepts, wireframes, sitemaps, computer models or images created by GG/GAD are not exact representations of how the final, constructed elements may appear. The Client shall be aware that these images are approximations, a visualization tool; and due to constraints of time, available information and possible modifications during the actual design process, a certain amount of "artistic license" may be utilized to create a computer image that will generally illustrate how the element may appear. GG/GAD may apply design software and artistic license to help the Client visualize the concept or design recommendation. These are not substantive or actual representations.

SECTION 18
If GG/GAD acts as the Client’s agent to integrate or purchase items such as, but not limited to, domain name, hosting, website/e-commerce features and printing, GG/GAD will not be held liable or responsible for any defects and/or technical under-performance of item, warranty of item, loss of data or its recovery. The terms and conditions of third-party service providers, such as e-commerce, shopping cart commerce providers, and merchant accounts, shall apply.

SECTION 19
The Client acknowledges that any cost opinions prepared or provided by GG/GAD are intended to provide general budgetary guidance. GG/GAD shall not be held responsible for variations, discrepancies or inaccuracies in the opinions provided, as GG/GAD does not have any control over the cost or availability of labor, equipment, or materials including market conditions or the vendor’s method of pricing. If the Client requires accurate, “accountable” estimates, then a professional estimating service should be retained by the Client under separate contract.

SECTION 20
GG/GAD shall procure written estimates for the Clients’ from vendors, if requested by the Client. However, GG/GAD reserves the right to not provide this service. Any vendor estimates provided by GG/GAD on behalf of the Client have been done to expedite the bidding process. The Client acknowledges that these vendors are not affiliated with GG/GAD, and that GG/GAD is not responsible for any of their work, services, hosting, and warranties. All claims, complaints, warranty or service issues shall be directed to the vendor by the Client, not through GG/GAD. Vendor estimates provided by GG/GAD do not present any financial benefits to GG/GAD. In the event that GG/GAD has some financial or other relationship, it will be disclosed to the Client.

SECTION 21
GG/GAD shall not be liable for any factors, time delays or damages resulting from typographical errors or misprints in any documents or content provided by the Client, their consultants, or vendors; manufacturer provided specifications/requirements for hardware, software or other technology; changes to, or new versions of technology, software, hardware that are issued during or after GG/GAD’s portion of the related work has been completed. GG/GAD is not responsible for errors and omissions on the part of other consultants not directly contracted by GG/GAD or their failure to keep the work on schedule.

SECTION 22
GG/GAD is not responsible for any of the Client’s subconsultants’, vendors’, or employees’/staff’s methods, techniques, means or for any imperfections, incorrectness of or defects in any of their work. GG/GAD is not responsible for any unseen or unforeseen conditions such as hosting provider downtime or loss of data or its recovery due to account hacking, identity theft, virus attack, fraudulent or criminal activities (including real, perceived, probable or suspected fraud/crime). GG/GAD shall not be required to obtain releases or be liable for any copyright or license/use infringements and/or penalties, use fees, etc. for any Client (or consultant) supplied images, content or other media that shall be incorporated into GG/GAD work. Any additional work, fees or penalties incurred by GG/GAD as a result of the foregoing, shall be billed to and paid by the Client at our hourly rates plus expenses.

SECTION 23
If the design solution is developed for only a portion of a multi-part project, then GG/GAD cannot design or incorporate details that may be needed to successfully address future requirements. GG/GAD should not be held responsible for design applications that were not identified or known prior to the GG/GAD creation of the initial design solution. Any modification required to design applications will be completed at the Client’s expense.

SECTION 24
The Client shall provide to GG/GAD any items such as artwork, photography, content, formats, templates, styles, data, text, hosting information, etc. that need to be incorporated or included in order for the project to be in compliance with any statute, state or local requirements.

SECTION 25
For any projects that involve printed materials, the Client will provide GG/GAD with ten (10) copies of the final product for GG/GAD’s use.

SECTION 26
If at any time following acceptance of this Agreement, the Client should desire to change the specifications or other elements of the scope of work, the Client shall submit to GG/GAD requested changes in writing. If GG/GAD does not approve the scope of work changes, GG/GAD shall not be obligated to perform any additional services hereunder.

SECTION 27
Upon completion of the project and the delivery of all items required to be provided under this Agreement, the Client shall have thirty (30) business days from such completion to inspect, test, and evaluate the project to determine whether it satisfies the required criteria set forth in this Agreement. If the project does not satisfy the required criteria, the Client shall provide GG/GAD written notice stating why the project is unacceptable.

SECTION 28
The Client shall have sixty (60) calendar days to request any bugs be fixed on their web sites and/or apps upon completion of the project. Bugs are restrained to functionality that was developed under this Agreement. Bugs do not include upgrades or maintenance as well as functions and features of any third-party plug-ins or software provide by the Client. After sixty (60) calendar days, any work requested by the Client shall be billed at GG/GAD hourly rates or an agreed-upon flat rate unless contained in this Agreement.

SECTION 29
GG/GAD shall provide no formal training in the use of web sites and/or apps unless specifically requested by the Client and/or contained in this Agreement. Limited support via phone or e-mail will be available to the Client for thirty (30) days following acceptance of the App. Customer support is provided during GG/GAD’s normal business hours. Whenever possible, GG/GAD will endeavor to accommodate Client requests beyond GG/GAD’s normal business hours. “Limited support” shall include instructions to access, alter, and maintain the App, using the provided content management system, unless additional support is specifically requested by the Client. GG/GAD is not responsible for providing software and/or technology needed to support the provided work to the Client, unless specifically retained to do so.

SECTION 30
The Client shall promptly report to GG/GAD any defects or suspected defects in GG/GAD’s services of which Client becomes aware. Failure by Client, or its contractors or subcontractors, to notify GG/GAD within 15 business days shall relieve GG/GAD of the costs of remedying the defects above the sum that such remedy would have cost had notification been given within 15 business days.

SECTION 31
GG/GAD will not research or apply for copyrights, trademarks or register and protect intellectual property unless specifically requested by the Client. However, GG/GAD reserves the right to not provide this service. The Client shall be responsible for verifying that any content provided to us by them (or any other party) to be used as the basis of design, or for inclusion in GG/GAD’s work shall have the required releases and/or permissions or inclusion in the work and their intended usage. Should the Client request that GG/GAD research or protect any intellectual property, then any hourly time, consultant expenses and reimbursable expenses shall be billable.

SECTION 32
GG/GAD shall not be required to execute any documents subsequent to the signing of this Agreement that in any way might, in the sole judgment of GG/GAD, increase GG/GAD's contractual or legal obligations or risks, create a fiduciary obligation or an uninsurable risk, or adversely affect the availability or cost of its professional or general liability insurance or otherwise materially change the terms of this Agreement.

SECTION 33
The word "CERTIFY" shall mean an expression of GG/GAD’s professional opinion to the best of its information, knowledge and belief, and does not constitute a warranty or guarantee by GG/GAD.

SECTION 34
GG/GAD shall not be required to execute certificates or consents that would require knowledge, services or responsibilities beyond the scope of this Agreement, and shall not be required to sign any documents that would result in GG/GAD having to certify the existence of conditions whose existence GG/GAD cannot ascertain. Any certificate will state that it is based on the best of the GG/GAD’s (and/or the signatory’s) knowledge, information and belief. If the Client requires GG/GAD to provide certifications, the Client shall pay GG/GAD’s full compensation for all services provided prior to the date when GG/GAD is required to execute such certificates.

SECTION 35
GG/GAD shall have the right to credit for all designs, apps, web development, and photography for the above-mentioned project and to use photos in the promotion of its professional practice through advertising, public relations, brochures or other marketing materials. Should additional photos be needed in the future, the Client agrees to provide reasonable access to the project. The Client has specific usage permissions for original designs, photography, and artwork that are created in service of the scope of work that have been outlined previously in this document. GG/GAD has no rights to transfer ownership and/or licenses for use of any designs, photography, and/or original artwork it has licensed from a third party in service of this scope of work to the Client. Such rights, ownership and/or licenses for use must be negotiated separately with the third party for any additional use. Any rights, ownership and/or licenses for designs, photography, and/or original artwork the Client supplies to GG/GAD remains theirs, and it is the Client’s responsibility to secure any necessary permission and/or licenses for its use.

SECTION 36
If the Client requests that GG/GAD design with environmentally sensitive design solution products such as recycled paper, biodegradable inks, etc., the Client acknowledges that GG/GAD’s recommendations are based on manufacturer/vendor/supplier and/or third-party information, and GG/GAD shall not be held responsible for accuracy and/or validation of the vendors’ assertions.

SECTION 37
Invoices for professional services shall be processed and generated by Gruskin Group, A Professional Corporation, as billing agent for Gruskin Architecture + Design, P.C. and Gruskin Creative. Our address is:
Gruskin Group, A Professional Corporation / Gruskin Architecture + Design, P.C.
294 Morris Avenue
Springfield, NJ 07081

SECTION 38
GG/GAD develops its applications based upon a third-party software platform. In the event the software is otherwise no longer available as the platform for the application, GG/GAD may cancel this Agreement upon thirty (30) days written notice, in which case GG/GAD will have no further obligation or liability to the Client. The Client will be reimbursed based upon the pro-rata share of outstanding service. All provisions of this Agreement which by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limits of liability. In the event that the third-party software platform service rates are increased, GG/GAD reserves the right to raise GG/GAD rates by the same dollar amount as the third party.

SECTION 39
All costs incurred in pursuing the collection of any monies owed, due or outstanding to GG/GAD, including any attorney’s or collection agency’s fees and expenses may be added to monies due to GG/GAD, including interest at eighteen percent (18%) per annum on any outstanding amounts. The Client also grants GG/GAD permission to obtain a credit check and will provide us with either a business’ Federal ID Number or individual Society Security Number(s), as appropriate or required.

SECTION 40
Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, neither the Client nor GG/GAD, their respective officers, directors, partners, employees, contractors or subconsultants shall be liable to the other or shall make any claim for any incidental, indirect or consequential damages arising out of or connected in any way to the project or to this Agreement. This mutual waiver of consequential damages shall include, but is not limited to, loss of use, loss of profit, loss of business, loss of income, loss of reputation and any other consequential damages that either party may have incurred from any cause of action including negligence, strict liability, breach of contract and breach of express or implied warranty. Both the Client and GG/GAD shall require similar waivers of consequential damages protecting all the entities or persons named herein in all contracts and subcontracts with others involved in this project.

SECTION 41
GG/GAD agrees, to the fullest extent permitted by law, to indemnify and hold harmless the Client, its parents and affiliates, and each of their respective officers, directors, agents, successors and assigns, and employees (collectively, Client) against all damages, liabilities or costs, including reasonable attorneys’ fees and defense costs, to the extent caused by GG/GAD’s negligent performance of professional services under this Agreement. Notwithstanding the foregoing the parties expressly agree that GG/GAD has no duty to defend the Client from and against any claims, causes of action, or proceedings of any kind unless an applicable insurance policy provides for costs of defense and then only to the extent of such insurance. The Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless GG/GAD, its parents and affiliates, officers, directors, employees, agents, successors and assigns and subconsultants (collectively, GG/GAD) against all damages, liabilities or costs, including reasonable attorneys’ fees and defense costs, to the extent caused by the Client’s negligence in connection with the project and/or the negligence of its contractors, subcontractors, design and/ or engineering professionals, consultants, subconsultants and/or anyone for whom the Client is legally liable. Neither the Client nor GG/GAD shall be obligated to indemnify the other party in any manner whatsoever for the other party’s own negligence, acts or failures to act or for the negligence, acts or failure to act of others, other than as set forth above.

SECTION 42
Any claims or disputes between GG/GAD and Client, its contractors or employees arising out of this Agreement or the services to be provided thereunder, which cannot be resolved by mutual agreement shall, as a condition precedent to litigation, be submitted to non-binding mediation provided GG/GAD’s professional liability insurance carrier agrees (if such consent is necessary). The costs of the mediator shall be shared equally between the Parties. If a dispute is not resolved after mediation, either Party may submit such dispute to litigation. Notice of a demand for mediation shall be made in writing to the other Party to this Agreement. The demand for mediation shall be made within a reasonable amount of time after the claim, dispute or other legal matter in question has arisen, but not later than the time period provided by the applicable statute of limitations of the State of New Jersey. The demand shall describe in detail the dispute and the relief requested. Discovery shall be permitted as provided by the Rules of Court of the State of New Jersey.

SECTION 43
The venue for any court action shall be in the Superior Court of New Jersey, Union County and any mediation proceeding shall also take place in Union County, New Jersey, unless GG/GAD agrees to another location. The laws of the State of New Jersey shall be applicable to any mediation and/or litigation.

SECTION 44
This Agreement is based upon GG/GAD’s preparation of work and shall not be valid should there be any changes in the scope of the work and the project without the consent of GG/GAD. This Agreement is valid only if signed within thirty (30) days of the date of this Agreement, unless extended by both parties.

SECTION 45
If any of the provisions of this Agreement shall contravene or be held invalid under the laws of any jurisdiction, the Agreement shall be construed as if not containing such provision and the rights, remedies, warranties, representations, covenants, and provisions hereof shall be construed and enforced accordingly in such jurisdiction and shall not in any manner affect such provision in any other jurisdiction, or any other provisions of this Agreement in any jurisdiction. Any dispute resolution provisions, limitations of liability, and indemnities shall survive termination of this Agreement.

SECTION 46
The Client understands and accepts that GG/GAD is not responsible for the MDM app’s compliance with any accessibility requirements; and all accessibility conformance shall be the responsibility of the end user’s mobile phone operating system.

SECTION 47
The term Force Majeure Event shall include, without limitation, acts of God, fire, explosion, vandalism, storm, severe weather disruptions, virus (or similar) disease, outbreak or other public health event or crisis, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or other labor disputes or any other events or circumstances not within the reasonable control of the affected party, whether of the class of causes enumerated above or not. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such Party, or its employees, officers, agents, or affiliates. Neither Party shall be in breach of its obligations under this Agreement, or incur any liability to the other Party for any losses or damages of any nature whatsoever incurred or suffered by that other Party, if and to the extent it is prevented from carrying out those obligations by, or such losses or damages are caused by, a Force Majeure Event, except to the extent such breach would have occurred, or the relevant losses or damages would have arisen, even if the Force Majeure Event had not occurred. Any Party invoking this Force Majeure provision, (the “Affected Party”) shall give prompt written notice of such Force Majeure Event, to the other Party (the “Unaffected Party”) in accordance with the Notice provision of the Agreement. The Affected Party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance, to mitigate the effect of any Force Majeure Event and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. As soon as reasonably practicable following the date of commencement of a Force Majeure Event, and within a reasonable time following the date of termination of a Force Majeure Event, the Affected Party shall submit to the Unaffected Party reasonable proof of the nature of the Force Majeure Event and of its effect upon the performance of the Affected Party’s obligations under this Agreement. Should a single Force Majeure Event exist for a continuous period of more than 180 days, then the Parties shall endeavor to agree to modification of the Agreement, including, without limitation, extension of the time for completion or termination of the Agreement. Any failure to agree shall be subject to the Dispute Resolution provisions of the Agreement.

‍