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<br />3.4 lfyou do not pay for our services as
<br />agreed. we may retain all work not yet
<br />delivered to you and you agree to return to us
<br />all of our work that is in your possession or
<br />under yom control. You agree not to use or
<br />rely upon om work for any pmpose
<br />whlltsoever until it is paid for in full
<br />
<br />Section 4:
<br />
<br />Compensation
<br />
<br />4.1 You will pay for services as agreed
<br />upon or according to our then cmrent
<br />Schednle of Charges ifthere is no other .
<br />written agreement as to price. An estimated
<br />cost is not a firm figure. You agree to pay all
<br />sales taxes and other taxes based on yom
<br />payment of om compensation. Our
<br />perfOl1Illlpce is subject to credit approval and
<br />payment of lU1Y specified retainer.
<br />
<br />4.2 You will ~otify us of billing disputes
<br />within 15 days. You will pay all undisputed
<br />portions of invoices on receipt You agree to
<br />pay ~terest on unpaid balances beginning 30
<br />days after invoice dates at the rate of t.5% per
<br />month, bUt not tQ exceed the I!18Ximum rate
<br />allowed by law.
<br />
<br />4.3 If you direct us to invoice another.
<br />we will do so, but you agree to ~ responsible
<br />for our compensation unless you provi~ us
<br />'with thatpersqn's written acceptance ofall
<br />, I .
<br />terms of our agreement and we agree to extend
<br />credit to that person and to release you.
<br />
<br />4.4 You agree to compen$ate us for our
<br />reasonable fees and expenses ifwe are
<br />~ to respond to legal process arising
<br />out of a proceeding related to the project and
<br />as to which we are not a party.
<br />
<br />4.5 Ifwe are delayed by factors beyond
<br />om control; or if proj~ conditions or the
<br />. scope or amount of work change, or if
<br />changed labor union conditions result in
<br />increased costs, d~ efficiency, or '
<br />delays', or if the standards or methods change,
<br />we wilL give you timely notice and we will
<br />receive an equitable adjustment of our
<br />. compensation.lfyou and We do not reach
<br />agniement on such compensation within 30
<br />days of our w$en application, we may
<br />terminate without liability to you or others.
<br />
<br />4.6. If you fail to pay us within 60 days
<br />fonowing invoice date, we may consider the
<br />default a total breach of om agteement and. at
<br />om option, terminate all of om dnties without
<br />liability to you or to o~ers.
<br />
<br />4.7 In consideration of our providing
<br />insmance to cover claims made by you, you
<br />hereby waive any right of offset as to fees due
<br />uS.
<br />
<br />
<br />.'.-" .;.; ~\:.:;~'!
<br />
<br />Section 5:
<br />
<br />Disputes, Damage, and
<br />RiskAUocation
<br />
<br />5.1 Disputes' will be submitted to
<br />Alternative Dispute Resolution (ADR) as a
<br />condition precedent to litigation. Each of us
<br />will ex;ercise good faith efforts to resolve
<br />disputes through a mutually acceptable ADR
<br />procedure. Collections will not be submitted
<br />toADR.
<br />
<br />5.2 We will not be liable for special.
<br />incidental, consequential. or punitive
<br />damages, including ~ not limited to those
<br />arising ~ delay, loss of use, loss of profits
<br />or revenue, loss of fjnancing commitments or
<br />fees, or the cost of capital.
<br />
<br />5.:) We will not be 'liab~e for damages
<br />unleSs suit is commenced within two years of
<br />'the' date of injury or loss or within two years
<br />ofthe,~ of the C9mpletion of out services,
<br />whichfiWer is earlier. Wt; will not be liable
<br />unlesS you have'llotified us of the cnscovexy of
<br />the claimed breach of contract, negligent act
<br />or omission within 30 days of the date of
<br />\ discOvc:ry and ~ess you have given us an
<br />OJlPOrtunity to iDvesiigate and to recommend
<br />ways C?fmitigating damages.
<br />
<br />5.4 , , FOr you, to obtain the benefit of a fee
<br />whic;h includes a reasonable allowance for
<br />risks, you agree that our aggregate liability
<br />will. not exceed the fee paid for pur services pr
<br />S50,OOO;whichever is greater, and you agree
<br />to ~demnifY us from all liability to others in
<br />excess of that ~ount lfyouare unwWing to
<br />accept this alloc;ation ofrisk. we will increase
<br />om aggregate liability to $100,000 provided
<br />that. within 10 days of the date of this
<br />agreement. you provide payment in an amount
<br />that will increase om fees by 10010, but not less
<br />than $590. to compensate us for the greater
<br />risk un~erlaken. this increased fee is not the
<br />pmchase of insunuice.
<br />
<br />5.5 . if you do not pay us within 60 days
<br />of invoice date, or if you make a claim against
<br />US that is resolved in our favor, you agree to
<br />~~.~~ ~x,penses, including but not
<br />. ~ied to attorney fees, staff time, expert
<br />WitneSs fees, and other costs of conection or
<br />Htigmon.
<br />
<br />5.6 The law of the state in which our
<br />serviciIig ofQce,is located will govern all
<br />disputes. Each ofus waives trial by jury on
<br />our own behalf and on behalf of our
<br />subcontractors and assigna.
<br />
<br />
<br />.'
<br />
<br />" c. , ..
<br />
<br />Section 6:
<br />
<br />General Indemnification
<br />
<br />6.1 We will indemnify and hold you
<br />harm1eSs from and against demands, damages,
<br />and expenses to ~ comparative extent they
<br />are caused by om negligent acts or omissions
<br />or those negligent acts or omissions of persons
<br />for whom we are legally responsible. You will
<br />indemnify and hold us harmless from and
<br />agaipst demands, damages, and expenses to
<br />the comparative extent they are caused by
<br />your negligent acts or omissions or those
<br />negligent acts or omissions of persons for
<br />who~ you are legally responstble.
<br />
<br />6.2 To the extent it may be necessmy to
<br />indemnify either ofus under Section 6.1, you
<br />and we expressly waive, in favor of the other
<br />only, any immunity or exemption from
<br />liability that exists under any worker
<br />compensation l&w.
<br />
<br />6.3 Yo~ agree to indemnify us against
<br />all loss and Costs arising out of claims of
<br />patent or copyright infringement as to any .
<br />process 01," system that is specified or selected
<br />by you or by others on your behalf.
<br />
<br />Section 7:
<br />
<br />Miscellaneous ProvWons
<br />
<br />7.1 We will provide a certificate of
<br />insmance to you upon request
<br />
<br />7.2 lbiS agreement is om entire
<br />agreement It supersedes all prior agreements.
<br />It may be modified only in a writing making
<br />Specific reference to the provision modified.
<br />
<br />7:J Neither ofus will assign or transfer
<br />. any interest. any claim, any cause of action. or
<br />any right against the other under this
<br />agreement Neither ofus will assign or
<br />otherwise tiansfer or encumber any proceeds
<br />or expected proceeds or co~pensation from
<br />the project or project claims to any third
<br />pers~ whether directly or as collateral or
<br />oth~.
<br />
<br />7.4' . Thisagreement'maybeterminated
<br />early only in writing. We will receive an
<br />equitable ad~erit of our compensation in
<br />the event of early termination.
<br />
<br />7.5 It is custoJJ1!!l'Y for the consultant
<br />that provides design recommendations to qe
<br />. retained to provide observation and related
<br />services during construction or remediation
<br />wbrk. lfwe are not retained to provide
<br />continuing services, you agree to hold us
<br />harmless from all claims, losses, and expenses
<br />arising out of any ~retations.
<br />clarifications, snbstitutions, or modifications
<br />of om work provided by you or others.
<br />
<br />
<br />.1.'..
<br />
<br />. ~'~_'-f._~:~:-:-\
<br />
<br />,Revised 3-1-03.,-,.
<br />
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