WALDMAN ENGINEERING CONSULTANTS, INC.
STANDARD TERMS AND CONDITIONS
CLIENT: The entity identified in the Agreement and referred to as the Owner is the Client and is defined as the person or entity requesting and/or authorizing the services, and in so doing, represents and warrants that it is duly authorized in this role. If Client is not the Owner of the Project, then Client is acting with the consent of the Owner to execute this Agreement. Waldman Engineering Consultants, Inc. (WEC) is an independent contractor and is not an agent and has no fiduciary relationship with the Client.
AGREEMENT: WEC shall perform services in accordance with this Agreement made with the Client. This Agreement consists of WEC’s Proposal which has been accepted by the Client and these Standard Terms and Conditions. The Agreement defines the scope of services WEC will perform for the Client. The scope of services, costs, and time schedules, if any, defined in the Agreement are based on information provided by Client and shall be subject to the provisions of the Agreement. If this information is incomplete or inaccurate, or if the Client directs change to the scope of services established by the Agreement, a written amendment to this Agreement equitably adjusting the costs and time schedules shall be executed by the Client and WEC as soon as practicable.
INVOICES: WEC shall submit invoices on a monthly basis and/or upon completion of the services performed as well as for expenses incurred and not previously billed. Payment is due upon Client’s receipt of the invoice and is past due thirty (30) days from the date shown on the invoice. Client agrees to pay a service charge of one and one-half percent (1.5%) per month on all past due amounts, which compounds to 19.8% per year. WEC shall be entitled to be reimbursed for all reasonable costs and expenses incurred in the collection of past due invoices, including, but not limited to, attorney’s fees, expenses, court costs, and WEC staff time. In addition, a $50.00 fee (“NSF Fee”) will be charged-back to the Client for any check which is returned by our financial institution due to insufficient funds.
STANDARD OF CARE: WEC will perform its services under this Agreement in conformance with the case and skill ordinarily exercised by reputable members of its profession practicing under similar conditions at the same time and locale.
NO WARRANTY OF ANY KIND EXPRESSED OR IMPLIED, IN FACT OR BY LAW, IS MADE OR INTENDED. IT IS AGREED THAT THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND THE IMPLIED WARRANTY OF HABITABILITY ARE EXPRESSLY DISCLAIMED, DENIED, AND EXCLUDED FROM THIS AGREEMENT. NO WARRANTY OR GUARANTEE IS INCLUDED OR INTENDED IN THIS AGREEMENT OR INSTRUMENTS OF SERVICES.
SAFETY: WEC is not responsible for safety precautions, practice or programs in connection with the work at the Project. WEC is responsible for the safety of its employees only in the performance of their duties. It is expressly agreed that WEC has no responsibility for the protection and safety of any other persons on or about the Project site. Unless indicated otherwise in the Agreement, Client shall provide, at its expense, all facilities and labor necessary to afford WEC personnel safe access to sampling, testing, or observation locations in conformance with federal, state, and local laws, ordinances, and regulations. It is understood and agreed that WEC shall not be in charge of, and shall have no control or responsibility over, any aspect of the erection, construction, or use of any scaffolds, hoists, cranes, stays, ladders, supports, or other similar devices as defined and interpreted under any law, ordinance, or regulation relating in any way to Project safety except for scaffolds, hoists, cranes, stays, ladders, supports or other similar devices which are erected by WEC personnel.
HAZARDOUS SUBSTANCES: If WEC is to provide services in the general vicinity of a facility or other area where there may exist any substance which poses or may pose a present or potential hazard to human health, then the Client shall immediately notify WEC of such present or potential health hazard which it knows or reasonably suspects exists. Thereafter WEC is authorized by Client to take all reasonable measures, including suspension of services and termination of this Agreement, that WEC deems necessary to protect its personnel against such possible health hazards. Client shall bear the direct costs of such measures. In the event samples collected or received by WEC on behalf of Client contain any substance which poses or may pose a present or potential hazard to human health or the environment, WEC will, at the completion of testing and at Client’s sole expense, take one of the following actions:
1. Return such samples to Client or;
2. Upon written request from Client, release such samples to a carrier for transport to a location selected by Client for final disposal.
The Client is responsible for the disposal of any hazardous substances and must be in compliance with all applicable federal, state, and local statutes, as well as all applicable laws, rules, regulations, and ordinances.
DELAYS: WEC shall not be considered in default under this Agreement if its performance is prevented or delayed by any cause which is beyond its reasonable control. Further, Client understands and agrees to pay all reasonable charges associated with any delays, cancellations, rescheduling, or other activities that may alter time schedules and anticipated costs and that are due as a result of circumstances that are beyond the reasonable control of WEC.
OWNERSHIP OF DOCUMENTS: All documents, including plans, specifications, field data, field notes, laboratory test data, calculations, and analyses (hereinafter “Instruments of Service”) prepared by WEC shall remain the property of WEC. WEC and WEC’s consultants shall be deemed the authors and owners of their respective Instruments of Service and shall retain all common law, statutory, and other reserved rights, including copyrights. Provided the Client complies with the obligations of the Agreement, including prompt payment of all sums when due, WEC grants to the Client a license to use its Work Product to complete the Project. Any termination of this Agreement shall terminate the foregoing license. The Instruments of Service shall not be used by Client for future additions or alterations to this Project or for other projects, without the prior written agreement of WEC. Any unauthorized use of the Instruments of Service shall be at Client’s sole risk and without liability to WEC and/or WEC’s consultants. Client agrees, to the fullest extent permitted by law, to defend, indemnify and hold harmless WEC and their respective officers, employees, agents and representatives, from any claim, damage, liability or cost (including reasonable attorney fees), caused by arising or allegedly arising out of any unauthorized reuse or modification of the Instruments of Service by Client or any person or entity that acquires or obtains the Instruments of Service from or through Client without the written authorization of WEC. WEC will retain all pertinent records relating to the services performed for a period of two (2) years following the completion of WEC’s services. After this period, they may be discarded unless other arrangements are requested and paid for by Client. WEC also reserves the right to use any photographs taken during the course of the service(s) provided to Client in various commercial advertising, including but not limited to various marketing pieces, trade show displays, website(s), presentations, etc.
SUBPOENAS OR COURT ORDERS: If any subpoena or court order is served upon WEC and/or any of its staff or consultants or requiring the presentation of documents or appearance at a deposition or trial, or for other discovery purposes, arising out of services provided under this Agreement, Client shall pay the charges applicable to WEC’s compliance with the subpoena or court order. Charges will accrue on an actual time and related expense basis in accordance with specific WEC rates which are in effect at the time process service is effectuated upon WEC of any such subpoena or court order. Invoices will include all time and expenses incurred from gathering, organizing, and duplicating documents, preparing to give testimony, travel, and testifying in any deposition and/or trial.
OPINIONS OF PROBABLE COST: In fulfilling the services of this Agreement, WEC may identify probable costs related to future expenditures. WEC’s opinions of probable costs provided as part of the services under this Agreement are made on the basis of WEC’s knowledge, experience, and qualifications and represent WEC’s judgment as being experienced, qualified, and familiar with the construction industry. WEC cannot and does not guarantee that proposals, bids, or actual costs will not vary from the opinions of probable costs provided by WEC.
LIMITATION OF LIABILITY: THE LIABILITY OF WEC FOR ANY REASON ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PERFORMANCE OF SERVICES THEREUNDER SHALL NOT EXCEED, IN THE AGGREGATE, WEC’S AVAILABLE INSURANCE PROCEEDS COVERING SUCH LIABILITY. IN ADDITION, IN NO EVENT WILL WEC BE LIABLE FOR ANY CLAIM OR DEMAND BY CLIENT, OR AGAINST CLIENT BY ANY THIRD PARTY, IN ANY AMOUNTS REPRESENTING LOSS OF PROFIT, LOSS OF BUSINESS, DELAY DAMAGES, OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES. THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION, NEGLIGENCE, STATUTE, OR OTHERWISE.
INDEMNIFICATION: If any claim, suit, or legal action arising out of the services under this Agreement is asserted against WEC by a person or entity who is not a party to this Agreement, Client agrees to indemnify and hold harmless WEC from and against any , liability, damage, costs, and expenses associated therewith, except to the extent that such liability is found to have been caused by the negligence of WEC. The Client’s obligation hereunder includes but is not limited to the payment of reasonable legal fees, attorneys’ fees, court costs, and expert and consulting charges, costs, and expenses required for the proper and vigorous defense of WEC. No third party shall have any right to rely upon any statement made by WEC, or any act or omission of WEC.
NO THIRD-PARTY BENEFICIARIES: Nothing in this Agreement shall create a contractual relationship with, or cause of action in favor of, a third party. It is not intended that any third party, including any shareholders, member, or constituent should use or rely on the services contained within this Agreement.
DISPUTE RESOLUTION: Any cause of action or litigation relating to all claims, disputes, controversies, or matters in question arising out of, or relating to, this Agreement or any breach thereof which cannot be resolved through negotiation, shall take place in the county in which the Project is located, unless Client and WEC agree otherwise.
TERMINATION: This Agreement may be terminated by either party upon at least seven (7) days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof. Termination by WEC due to possible exposure of its employees to hazardous materials shall not be considered a default by WEC but shall be considered good and sufficient grounds to terminate. Prior to terminating this Agreement, the non-defaulting party must provide the other party with written notice of the alleged default, with at least seven (7) days to cure the default. If the default is not cured within that time or is not a curable default, the non-defaulting party may thereafter terminate this Agreement with fourteen (14) days’ written notice. Such termination shall not be effective if the default has been cured or remedied before expiration of the cure period. This cure period may be extended for a longer time upon agreement of the parties. In the event of termination, WEC shall be paid for services performed prior to the termination date set forth in the notice in accordance with the terms of this Agreement, costs attributable to termination, reimbursable expenses and reasonable termination expenses. Either party may terminate this Agreement for convenience at any time. In the event of a termination for convenience, the Owner shall compensate WEC for all services performed up to the date of termination, reimbursable expenses incurred and costs attributable to termination. Termination of this Agreement for convenience shall terminate the license to use the Instruments of Service set forth above
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