|
<br />Braun Intertec General Conditions
<br />
<br />Rev. 2024-11-04 Page 2 of 2
<br />default and breach of this Agreement for which Consultant may terminate for cause
<br />consistent with the terms of this Agreement and without liability to Client or to others. Client
<br />will compensate Consultant for fees earned and expenses incurred up to the time of
<br />termination. Client agrees to be liable to Consultant for all costs and expenses Consultant
<br />incurs in the collection of amounts invoiced but not paid, including but not limited to
<br />attorney fees and costs.
<br />SECTION 6: OWNERSHIP AND USE OF DATA
<br />6.1 Ownership. All reports, notes, calculations, documents, and all other data prepared by
<br />Consultant in the performance of the Services (“Project Data”) are instruments of
<br />Consultant’s Services and are the property of Consultant. Consultant shall retain all common
<br />law, statutory and other reserved rights, including the copyright thereto, of Project Data.
<br />6.2 Use of Project Data. The Project Data of this Agreement is for the exclusive purpose
<br />disclosed by Client and, unless agreed to in writing, for the exclusive use of Client. Client may
<br />not use Project Data for a purpose for which the Project Data was not prepared without the
<br />express written consent of Consultant. Consultant will not be responsible for any claims,
<br />damages, or costs arising from the unauthorized use of any Project Data provided by
<br />Consultant under this Agreement. Client agrees to hold harmless, defend and indemnify
<br />Consultant from any and all claims, damages, losses, and expenses, including attorney fees,
<br />arising out of such unauthorized use.
<br />6.3 Samples, Field Data, and Contaminated Equipment. Samples and field data remaining
<br />after tests are conducted, as well as field and laboratory equipment that cannot be
<br />adequately cleansed of contaminants, are and continue to be the property of Client. Samples
<br />may be discarded or returned to Client, at Consultant’s discretion, unless within fifteen (15)
<br />days of the report date Client gives Consultant written direction to store or transfer the
<br />samples and materials. Samples and materials will be stored at Client’s expense.
<br />6.4 Data Provided by Client. Electronic data, reports, photographs, samples, and other
<br />materials provided by Client or others may be discarded or returned to Client, at Consultant’s
<br />discretion, unless within 15 days of the report date Client gives Consultant written direction
<br />to store or transfer the materials at Client’s expense.
<br />SECTION 7: INSURANCE
<br />7.1 Insurance. Consultant shall keep and maintain the following insurance coverages:
<br />a. Workers’ Compensation: Statutory
<br />b. Employer’s Liability: $1,000,000 bodily injury, each accident | $1,000,000 bodily injury
<br />by disease, each employee | $1,000,000 bodily injury/disease, aggregate
<br />c. General Liability: $1,000,000 per occurrence | $2,000,000 aggregate
<br />d. Automobile Liability: $1,000,000 combined single limit (bodily injury and property
<br />damage)
<br />e. Excess Umbrella Liability: $5,000,000 per occurrence | $5,000,000 aggregate
<br />f. Professional Liability: $2,000,000 per claim | $2,000,000 aggregate
<br />7.2 Waiver of Subrogation. Client and Consultant waive all claims and rights of subrogation
<br />for losses arising out of causes of loss covered by the respective insurance policies.
<br />7.3 Certificate of Insurance. Consultant shall furnish Client with a certificate of insurance
<br />upon request.
<br />SECTION 8: INDEMNIFICATION, CONSEQUENTIAL DAMAGES, LIABILITY LIMITS
<br />8.1 Indemnification. Consultant’s only indemnification obligation shall be to indemnify and
<br />hold harmless the Client, its officers, directors, and employees from and against those
<br />damages and costs incurred by Client or that Client is legally obligated to pay as a result of
<br />third party tort claims, including for the death or bodily injury to any person or for the
<br />destruction or damage to any property, but only to the extent proven to be directly caused
<br />by the negligent act, error, or omission of the Consultant or anyone for whom the Consultant
<br />is legally responsible. This indemnification provision is subject to the Limitation of Liability
<br />set forth in this Section 8.
<br />8.2 Intellectual Property. Client agrees to indemnify Consultant against losses and costs
<br />arising out of claims of patent or copyright infringement as to any process or system that is
<br />specified or selected by Client or others on behalf of Client.
<br />8.3 Mutual Waiver of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE
<br />CONTRARY HEREUNDER, NEITHER CONSULTANT NOR CLIENT SHALL BE LIABLE TO THE
<br />OTHER FOR ANY CONSEQUENTIAL, PUNITIVE, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES,
<br />OR LOSS OF USE OR RENTAL, LOSS OF PROFIT, LOSS OF BUSINESS OPPORTUNITY, LOSS OF
<br />PROFIT OR REVENUE OR COST OF FINANCING, OR OTHER SUCH SIMILAR AND RELATED
<br />DAMAGE ASSERTED IN THIRD PARTY CLAIMS, OR CLAIMS BY EITHER PARTY AGAINST THE
<br />OTHER.
<br />8.4 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY
<br />IN THE AGGREGATE OF CONSULTANT, CONSULTANT’S OFFICERS, DIRECTORS, PARTNERS,
<br />EMPLOYEES, AGENTS, AND SUBCONSULTANTS, TO CLIENT AND ANYONE CLAIMING BY,
<br />THROUGH OR UNDER CLIENT FOR ANY CLAIMS, LOSSES, COSTS, OR DAMAGES WHATSOEVER
<br />ARISING OUT OF, RESULTING FROM OR IN ANY WAY RELATED CONSULTANT’S
<br />PERFORMANCE OF THE SERVICES OR THIS AGREEMENT, FROM ANY CAUSE OR CAUSES,
<br />INCLUDING BUT NOT LIMITED TO NEGLIGENCE, PROFESSIONAL ERRORS AND OMISSIONS,
<br />STRICT LIABILITY, BREACH OF CONTRACT, INDEMNIFICATION OBLIGATIONS OR BREACH OF
<br />WARRANTY, SHALL NOT EXCEED THE TOTAL COMPENSATION RECEIVED BY CONSULTANT OR
<br />$50,000, WHICHEVER IS GREATER.
<br />SECTION 9: MISCELLANEOUS PROVISIONS
<br />9.1 Services Prior to Agreement. Directing Consultant to commence Services prior to
<br />execution of this Agreement constitutes Client’s acceptance of this unaltered Agreement in
<br />its entirety.
<br />9.2 Confidentiality. To the extent Consultant receives Client information identified as
<br />confidential, Consultant will not disclose that information to third parties without Client
<br />consent. Additionally, any Project Data prepared in performance of the Services will remain
<br />confidential and Consultant will not release the reports to any third parties not involved in
<br />the Project. Neither of the aforesaid confidentiality obligations shall apply to any information
<br />in the public domain, information lawfully acquired from others on a nonconfidential basis,
<br />or information that Consultant is required by law to disclose.
<br />9.3 Relationship of the Parties. Consultant will perform Services under this Agreement as an
<br />independent contractor, and its employees will at all times be under its sole discretion and
<br />control. No provision in this Agreement shall be deemed or construed to create a joint
<br />venture, partnership, agency or other such association between the Parties.
<br />9.4 Resource Conservation and Recovery Act. To the extent applicable to the Services,
<br />neither this Agreement nor the providing of Services will operate to make Consultant an
<br />owner, operator, generator, transporter, treater, storer, or a disposal facility within the
<br />meaning of the Resource Conservation and Recovery Act, as amended, or within the meaning
<br />of any other law governing the handling, treatment, storage, or disposal of hazardous
<br />substances. Client agrees to hold Consultant harmless, defend, and indemnify Consultant
<br />from any claims, damages, penalties or losses resulting from the storage, removal, hauling
<br />or disposal of such substances.
<br />9.5 Services in Connection with Legal Proceedings. Client agrees to compensate Consultant
<br />in accordance with its then current fees, rates, or charges if Consultant is asked or required
<br />to respond to legal process arising out of a proceeding related to the Project and as to which
<br />Consultant is not a party.
<br />9.6 Assignment. This Agreement may not be assigned by Consultant or Client without the
<br />prior written consent of the other Party, which consent shall not be unreasonably withheld.
<br />9.7 Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended, or
<br />will be construed, to confer upon or give any person or entity other than Consultant and
<br />Client, and their respective permitted successors and assigns, any rights, remedies, or
<br />obligations under or by reason of this Agreement.
<br />9.8 Termination. This Agreement may be terminated by either Party for cause upon seven
<br />(7) days written notice to the other Party. Should the other Party fail to cure and perform in
<br />accordance with the terms of this Agreement within such seven‐day period, the Agreement
<br />may terminate at the sole discretion of the Party that provided the written notice. The Client
<br />may terminate this Agreement for its convenience. If Client terminates for its convenience,
<br />then Consultant shall be compensated in accordance with the terms hereof for Services
<br />performed, reimbursable costs and expenses incurred prior to the termination, and
<br />reasonable costs incurred as a result of the termination.
<br />9.9 Force Majeure. Neither Party shall be liable for damages or deemed in default of this
<br />Agreement to the extent that any delay or failure in the performance of its obligations (other
<br />than the payment of money) results, without its fault or negligence, from any cause beyond
<br />its reasonable control, including but not limited to acts of God, acts of civil or military
<br />authority, embargoes, pandemics, epidemics, war, riots, insurrections, fires, explosions,
<br />earthquakes, floods, adverse weather conditions, strikes or lock‐outs, declared states of
<br />emergency, and changes in laws, statutes, regulations, or ordinances.
<br />9.10 Disputes, Choice of Law, Venue. In the event of a dispute and prior to exercising rights
<br />at law or under this Agreement, Consultant and Client agree to negotiate all disputes in good
<br />faith for a period of 30 days from the date of notice of such dispute. This Agreement will be
<br />governed by the laws and regulations of the state in which the Project is located and all
<br />disputes and claims shall be heard in the state or federal courts for that state. Client and
<br />Consultant each waive trial by jury.
<br />9.11 Individual Liability. No officer or employee of Consultant, acting within the scope of
<br />employment, shall have individual liability for any acts or omissions, and Client agrees not to
<br />make a claim against any individual officers or employees of Consultant.
<br />9.12 Severability. Should a court of law determine that any clause or section of this
<br />Agreement is invalid, all other clauses or sections shall remain in effect.
<br />9.13 Waiver. The failure of either Party hereto to exercise or enforce any right under this
<br />Agreement shall not constitute a release or waiver of the subsequent exercise or
<br />enforcement of such right.
<br />9.14 Entire Agreement. The terms and conditions set forth herein constitute the entire
<br />understanding of the Parties relating to the provision of Services by Consultant to Client. This
<br />Agreement may be amended only by a written instrument signed by both Parties. In the
<br />event Client issues a purchase order or other documentation to authorize Consultant’s
<br />Services, any conflicting or additional terms of such documentation are expressly excluded
<br />from this Agreement.
|