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Kimley>>>Horn Page 7
<br />secure its right to payment under this Agreement.
<br />b) If the Client relies on payment or proceeds from a third party to pay Consultant and Client does not pay
<br />Consultant's invoice within 60 days of receipt, Consultant may communicate directly with such third party to
<br />secure payment.
<br />c) If the Client objects to an invoice, it must advise the Consultant in writing giving its reasons within 14 days of
<br />receipt of the invoice or the Client's objections will be waived, and the invoice shall conclusively be deemed due
<br />and owing. If the Client objects to only a portion of the invoice, payment for all other portions remains due within
<br />25 days of receipt.
<br />d) If the Consultant initiates legal proceedings to collect payment, it may recover, in addition to all amounts due,
<br />its reasonable attorneys' fees, reasonable experts' fees, and other expenses related to the proceedings. Such
<br />expenses shall include the cost, at the Consultant's normal hourly billing rates, of the time devoted to such
<br />proceedings by its employees.
<br />e) The Client agrees that the payment to the Consultant is not subject to any contingency or condition. The
<br />Consultant may negotiate payment of any check tendered by the Client, even if the words"in full satisfaction" or
<br />words intended to have similar effect appear on the check without such negotiation being an accord and
<br />satisfaction of any disputed debt and without prejudicing any right of the Consultant to collect additional amounts
<br />from the Client.
<br />5) Use of Documents. All documents, including but not limited to drawings, specifications, reports, and data or
<br />programs stored electronically, prepared by the Consultant are related exclusively to the services described in
<br />this Agreement, and may be used only if the Client has satisfied all of its obligations under this Agreement. They
<br />are not intended or represented to be suitable for use, partial use or reuse by the Client or others on extensions
<br />of this project or on any other project. Any modifications made by the Client to any of the Consultant's
<br />documents, or any use, partial use or reuse of the documents without written authorization or adaptation by the
<br />Consultant will be at the Client's sole risk and without liability to the Consultant, and the Client shall indemnify,
<br />defend and hold the Consultant harmless from all claims, damages, losses and expenses, including but not
<br />limited to attorneys'fees, resulting therefrom. The Consultant's electronic files and source code developed in the
<br />development of application code remain the property of the Consultant and shall be provided to the Client only if
<br />expressly provided for in this Agreement. Any electronic files not containing an electronic seal are provided only
<br />for the convenience of the Client, and use of them is at the Client's sole risk. In the case of any defects in the
<br />electronic files or any discrepancies between them and the hardcopy of the documents prepared by the
<br />Consultant, the hardcopy shall govern. Because data stored in electronic media format can deteriorate or be
<br />modified without the Consultant's authorization,the Client has 60 days to perform acceptance tests, after which it
<br />shall be deemed to have accepted the data.
<br />6) Opinions of Cost. Because the Consultant does not control the cost of labor, materials, equipment or
<br />services furnished by others, methods of determining prices, or competitive bidding or market conditions, any
<br />opinions rendered as to costs, including but not limited to opinions as to the costs of construction and materials,
<br />shall be made on the basis of its experience and represent its judgment as an experienced and qualified
<br />professional, familiar with the industry. The Consultant cannot and does not guarantee that proposals, bids or
<br />actual costs will not vary from its opinions of cost. If the Client wishes greater assurance as to the amount of any
<br />cost, it shall employ an independent cost estimator. Consultant's services required to bring costs within any
<br />limitation established by the Client will be paid for as Additional Services.
<br />7) Termination. The obligation to provide further services under this Agreement may be terminated by either
<br />party upon seven days' written notice in the event of substantial failure by the other party to perform in
<br />accordance with the terms hereof through no fault of the terminating party, or upon thirty days' written notice for
<br />the convenience of the terminating party. If any change occurs in the ownership of the Client, the Consultant
<br />shall have the right to immediately terminate this Agreement. In the event of any termination, the Consultant
<br />shall be paid for all services rendered and expenses incurred to the effective date of termination, and other
<br />reasonable expenses incurred by the Consultant as a result of such termination. If the Consultant's
<br />compensation is a fixed fee, the amount payable for services will be a proportional amount of the total fee based
<br />on the ratio of the amount of the services performed, as reasonably determined by the Consultant, to the total
<br />amount of services which were to have been performed.
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