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creditworthy (in our sole opinion) and provides
<br />written acceptance of all terms of this Agreement.
<br />5.4 Your obligation to pay for Services under this
<br />Agreement is not contingent on your ability to
<br />obtain financing, governmental or regulatory
<br />agency approval, permits, final adjudication of any
<br />lawsuit, your successful completion of any project,
<br />receipt of payment from a third party, or any
<br />other event. No retainage will be withheld.
<br />5.5 If you do not pay us in accordance with this
<br />Agreement, you agree to reimburse all costs and
<br />expenses for collection of the moneys invoiced,
<br />including but not limited to attorney fees and staff
<br />time.
<br />5.6 You agree to compensate us in accordance
<br />with our Schedule of Charges if we are asked or
<br />required to respond to legal process arising out of
<br />a proceeding related to the project and as to
<br />which we are not a party.
<br />5.7 If we are delayed by factors beyond our
<br />control, or if project conditions or the scope or
<br />amount of work changes, or if changed labor
<br />conditions result in increased costs, decreased
<br />efficiency, or delays, or if the standards or
<br />methods change, we will give you timely notice,
<br />the schedule will be extended for each day of
<br />delay, and we will be compensated for costs and
<br />expenses incurred in accordance with our
<br />Schedule of Charges.
<br />5.8 If you fail to pay us in accordance with this
<br />Agreement, we may consider the default a total
<br />breach of this Agreement and, at our option,
<br />terminate our duties without liability to you or to
<br />others, and you will compensate us for fees
<br />earned and expenses incurred up to the time of
<br />termination.
<br />5.9 In consideration of our providing insurance
<br />to cover claims made by you, you hereby waive
<br />any right to offset fees otherwise due us.
<br />Section 6: Disputes, Damage, and Risk Allocation
<br />6.1 Each of us will exercise good faith efforts to
<br />resolve disputes without litigation. Such efforts
<br />will include, but not be limited to, a meeting(s)
<br />attended by each party's representative(s)
<br />empowered to resolve the dispute. Before either
<br />of us commences an action against the other,
<br />disputes (except collections) will be submitted to
<br />mediation.
<br />6.2 Notwithstanding anything to the contrary in
<br />this Agreement neither party hereto shall be
<br />responsible or held liable to the other for
<br />punitive, indirect incidental, or consequential
<br />damages, or liability for loss of use, loss of
<br />business opportunity, loss of profit or revenue,
<br />loss of product or output or business
<br />interruption.
<br />6.3 You and we agree that any action in relation
<br />to an alleged breach of our standard of care or this
<br />Agreement shall be commenced within one year
<br />of the date of the breach or of the date of
<br />substantial completion of Services, whichever is
<br />earlier, without regard to the date the breach is
<br />discovered. Any action not brought within that
<br />one year time period shall be barred, without
<br />regard to any other limitations period set forth by
<br />law or statute. We will not be liable unless you
<br />have notified us within 30 days of the date of such
<br />breach and unless you have given us an
<br />opportunity to investigate and to recommend
<br />ways of mitigating damages. You agree not to
<br />make a claim against us unless you have provided
<br />us at least 30 days prior to the institution of any
<br />legal proceeding against us with a written
<br />certificate executed by an appropriately licensed
<br />professional specifying and certifying each and
<br />every act or omission that you contend constitutes
<br />a violation of the standard of care governing our
<br />professional services. Should you fail to meet the
<br />conditions above, you agree to fully release us
<br />from any liability for such allegation.
<br />6.4 For you to obtain the benefit of a fee which
<br />includes a reasonable allowance for risks, you
<br />agree that our aggregate liability for all claims
<br />will not exceed the fee paid for Services or
<br />$50,000, whichever is greater. If you are
<br />unwilling to accept this allocation of risk, we will
<br />increase our aggregate liability to $100,000
<br />provided that, within 10 days of the date of this
<br />Agreement, you provide payment in an amount
<br />that will increase our fees by 10%, but not less
<br />than $500, to compensate us for the greater risk
<br />undertaken. This increased fee is not the purchase
<br />of insurance.
<br />6.5 You agree to indemnify us from all liability
<br />to others in excess of the risk allocation stated
<br />herein and to insure this obligation. In addition,
<br />all indemnities and limitations of liability set
<br />forth in this Agreement apply however the same
<br />may arise, whether in contract, tort, statute,
<br />equity or other theory of law, including, but not
<br />limited to, the breach of any legal duty or the
<br />fault, negligence, or strict liability of either party.
<br />6.6 This Agreement shall be governed,
<br />construed, and enforced in accordance with the
<br />laws of the state in which our servicing office is
<br />located, without regard to its conflict of laws rules.
<br />The laws of the state of our servicing office will
<br />govern all disputes, and all claims shall be heard in
<br />the state or federal courts for that state. Each of
<br />us waives trial by jury.
<br />6.7 No officer or employee acting within the
<br />scope of employment shall have individual liability
<br />for his or her acts or omissions, and you agree not
<br />to make a claim against individual officers or
<br />employees.
<br />Section 7: General Indemnification
<br />7.1 We will indemnify and hold you harmless
<br />from and against demands, damages, and
<br />expenses of others to the comparative extent they
<br />are caused by our negligent acts or omissions or
<br />those negligent acts or omissions of persons for
<br />whom we are legally responsible. You will
<br />indemnify and hold us harmless from and against
<br />demands, damages, and expenses of others to the
<br />comparative extent they are caused by your
<br />negligent acts or omissions or those negligent acts
<br />or omissions of persons for whom you are legally
<br />responsible.
<br />7.2 To the extent it maybe necessary to
<br />indemnify either of us under Section 7.1, you and
<br />we expressly waive, in favor of the other only, any
<br />immunity or exemption from liability that exists
<br />under any worker compensation law.
<br />Section 8: Miscellaneous Provisions
<br />8.1 We will provide a certificate of insurance to
<br />you upon request. Any claim as an Additional
<br />Insured shall be limited to losses caused by our
<br />negligence.
<br />8.2 You and we, for ourselves and our insurers,
<br />waive all claims and rights of subrogation for
<br />losses arising out of causes of loss covered by our
<br />respective insurance policies.
<br />8.3 Neither of us will assignor transfer any
<br />interest, any claim, any cause of action, or any
<br />right against the other. Neither of us will assign or
<br />otherwise transfer or encumber any proceeds or
<br />expected proceeds or compensation from the
<br />project or project claims to any third person,
<br />whether directly or as collateral or otherwise.
<br />8.4 This Agreement maybe terminated early
<br />only in writing. You will compensate us for fees
<br />earned for performance completed and expenses
<br />incurred up to the time of termination.
<br />8.5 If any provision of this Agreement is held
<br />invalid or unenforceable, then such provision will
<br />be modified to reflect the parties' intention. All
<br />remaining provisions of this Agreement shall
<br />remain in full force and effect.
<br />8.6 No waiver of any right or privilege of either
<br />party will occur upon such party's failure to insist
<br />on performance of any term, condition, or
<br />instruction, or failure to exercise any right or
<br />privilege or its waiver of any breach.
<br />GC-CMT Revised 1/1/2018 Page 2 of 2
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