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CONSULTANT’S PERFORMANCE OF THE SERVICES OR THIS AGREEMENT, FROM ANY
<br />the Agreement contains sufficient consideration notwithstanding Consultant being paid
<br />CAUSE OR CAUSES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, PROFESSIONAL
<br />by a third party.
<br />ERRORS AND OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT, INDEMNIFICATION
<br />5.5 Non-Payment. If Client does not pay for Services in full as agreed, Consultant may
<br />OBLIGATIONS OR BREACH OF WARRANTY, SHALL NOT EXCEED THE TOTAL
<br />retain work not yet delivered to Client and Client agrees to return all Project Data (as
<br />COMPENSATION RECEIVED BY CONSULTANT OR $50,000, WHICHEVER IS GREATER.
<br />defined in this Agreement) that may be in Client’s possession or under Client’s control.
<br />SECTION 9: MISCELLANEOUS PROVISIONS
<br />If Client fails to pay Consultant in accordance with this Agreement, such nonpayment
<br />shall be considered a default and breach of this Agreement for which Consultant may
<br />9.1 Services Prior to Agreement. Directing Consultant to commence Services prior to
<br />terminate for cause consistent with the terms of this Agreement and without liability to
<br />execution of this Agreement constitutes Client’s acceptance of this unaltered
<br />Client or to others. Client will compensate Consultant for fees earned and expenses
<br />Agreement in its entirety.
<br />incurred up to the time of termination. Client agrees to be liable to Consultant for all
<br />9.2 Confidentiality. To the extent Consultant receives Client information identified as
<br />costs and expenses Consultant incurs in the collection of amounts invoiced but not
<br />confidential, Consultant will not disclose that information to third parties without Client
<br />paid, including but not limited to attorney fees and costs.
<br />consent. Additionally, any Project Data prepared in performance of the Services will
<br />SECTION 6: OWNERSHIP AND USE OF DATA remain confidential and Consultant will not release the reports to any third parties not
<br />involved in the Project. Neither of the aforesaid confidentiality obligations shall apply to
<br />6.1 Ownership. All reports, notes, calculations, documents, and all other data prepared
<br />any information in the public domain, information lawfully acquired from others on a
<br />by Consultant in the performance of the Services (“Project Data”) are instruments of
<br />nonconfidential basis, or information that Consultant is required by law to disclose.
<br />Consultant’s Services and are the property of Consultant. Consultant shall retain all
<br />9.3 Relationship of the Parties. Consultant will perform Services under this Agreement
<br />common law, statutory and other reserved rights, including the copyright thereto, of
<br />as an independent contractor, and its employees will at all times be under its sole
<br />Project Data.
<br />discretion and control. No provision in this Agreement shall be deemed or construed to
<br />6.2 Use of Project Data. The Project Data of this Agreement is for the exclusive purpose
<br />create a joint venture, partnership, agency or other such association between the
<br />disclosed by Client and, unless agreed to in writing, for the exclusive use of Client.
<br />Parties.
<br />Client may not use Project Data for a purpose for which the Project Data was not
<br />9.4 Resource Conservation and Recovery Act. To the extent applicable to the
<br />prepared without the express written consent of Consultant. Consultant will not be
<br />Services, neither this Agreement nor the providing of Services will operate to make
<br />responsible for any claims, damages, or costs arising from the unauthorized use of any
<br />Consultant an owner, operator, generator, transporter, treater, storer, or a disposal
<br />Project Data provided by Consultant under this Agreement. Client agrees to hold
<br />facility within the meaning of the Resource Conservation and Recovery Act, as
<br />harmless, defend and indemnify Consultant from any and all claims, damages, losses,
<br />amended, or within the meaning of any other law governing the handling, treatment,
<br />and expenses, including attorney fees, arising out of such unauthorized use.
<br />storage, or disposal of hazardous substances. Client agrees to hold Consultant
<br />6.3 Samples, Field Data, and Contaminated Equipment. Samples and field data
<br />harmless, defend, and indemnify Consultant from any claims, damages, penalties or
<br />remaining after tests are conducted, as well as field and laboratory equipment that
<br />losses resulting from the storage, removal, hauling or disposal of such substances.
<br />cannot be adequately cleansed of contaminants, are and continue to be the property of
<br />9.5 Services in Connection with Legal Proceedings. Client agrees to compensate
<br />Client. Samples may be discarded or returned to Client, at Consultant’s discretion,
<br />Consultant in accordance with its then current fees, rates, or charges if Consultant is
<br />unless within fifteen (15) days of the report date Client gives Consultant written direction
<br />asked or required to respond to legal process arising out of a proceeding related to the
<br />to store or transfer the samples and materials. Samples and materials will be stored at
<br />Project and as to which Consultant is not a party.
<br />Client’s expense.
<br />9.6 Assignment. This Agreement may not be assigned by Consultant or Client without
<br />6.4 Data Provided by Client. Electronic data, reports, photographs, samples, and other
<br />the prior written consent of the other Party, which consent shall not be unreasonably
<br />materials provided by Client or others may be discarded or returned to Client, at
<br />withheld.
<br />Consultant’s discretion, unless within 15 days of the report date Client gives Consultant
<br />written direction to store or transfer the materials at Client’s expense.
<br />9.7 Third Party Beneficiaries. Nothing in this Agreement, express or implied, is
<br />intended, or will be construed, to confer upon or give any person or entity other than
<br />SECTION 7: INSURANCE
<br />Consultant and Client, and their respective permitted successors and assigns, any
<br />7.1 Insurance. Consultant shall keep and maintain the following insurance coverages:
<br />rights, remedies, or obligations under or by reason of this Agreement.
<br />a. Workers’ Compensation: Statutory
<br />9.8 Termination. This Agreement may be terminated by either Party for cause upon
<br />b. Employer’s Liability: $1,000,000 bodily injury, each accident | $1,000,000 bodily
<br />seven (7) days written notice to the other Party. Should the other Party fail to cure and
<br />injury by disease, each employee | $1,000,000 bodily injury/disease, aggregate
<br />perform in accordance with the terms of this Agreement within such seven-day period,
<br />c. General Liability: $1,000,000 per occurrence | $2,000,000 aggregate
<br />the Agreement may terminate at the sole discretion of the Party that provided the written
<br />d. Automobile Liability: $1,000,000 combined single limit (bodily injury and property
<br />notice. The Client may terminate this Agreement for its convenience. If Client terminates
<br />damage)
<br />for its convenience, then Consultant shall be compensated in accordance with the
<br />e. Excess Umbrella Liability: $5,000,000 per occurrence | $5,000,000 aggregate
<br />terms hereof for Services performed, reimbursable costs and expenses incurred prior to
<br />f. Professional Liability: $2,000,000 per claim | $2,000,000 aggregate
<br />the termination, and reasonable costs incurred as a result of the termination.
<br />7.2 Waiver of Subrogation. Client and Consultant waive all claims and rights of
<br />9.9 Force Majeure. Neither Party shall be liable for damages or deemed in default of this
<br />subrogation for losses arising out of causes of loss covered by the respective insurance
<br />Agreement to the extent that any delay or failure in the performance of its obligations
<br />policies.
<br />(other than the payment of money) results, without its fault or negligence, from any
<br />7.3 Certificate of Insurance. Consultant shall furnish Client with a certificate of
<br />cause beyond its reasonable control, including but not limited to acts of God, acts of
<br />insurance upon request.
<br />civil or military authority, embargoes, pandemics, epidemics, war, riots, insurrections,
<br />SECTION 8: INDEMNIFICATION, CONSEQUENTIAL DAMAGES, LIABILITY LIMITS
<br />fires, explosions, earthquakes, floods, adverse weather conditions, strikes or lock-outs,
<br />declared states of emergency, and changes in laws, statutes, regulations, or
<br />8.1 Indemnification. Consultant’s only indemnification obligation shall be to indemnify
<br />ordinances.
<br />and hold harmless the Client, its officers, directors, and employees from and against
<br />those damages and costs incurred by Client or that Client is legally obligated to pay as
<br />9.10 Disputes, Choice of Law, Venue. In the event of a dispute and prior to exercising
<br />a result of third party tort claims, including for the death or bodily injury to any person or
<br />rights at law or under this Agreement, Consultant and Client agree to negotiate all
<br />for the destruction or damage to any property, but only to the extent proven to be directly
<br />disputes in good faith for a period of 30 days from the date of notice of such dispute. This
<br />caused by the negligent act, error, or omission of the Consultant or anyone for whom Agreement will be governed by the laws and regulations of the state in which the Project
<br />the Consultant is legally responsible. This indemnification provision is subject to the is located and all disputes and claims shall be heard in the state or federal courts for
<br />Limitation of Liability set forth in this Section 8. that state. Client and Consultant each waive trial by jury.
<br />8.2 Intellectual Property. Client agrees to indemnify Consultant against losses and
<br />9.11 Individual Liability. No officer or employee of Consultant, acting within the scope
<br />costs arising out of claims of patent or copyright infringement as to any process or of employment, shall have individual liability for any acts or omissions, and Client
<br />system that is specified or selected by Client or others on behalf of Client. agrees not to make a claim against any individual officers or employees of Consultant.
<br />8.3 Mutual Waiver of Consequential Damages. NOTWITHSTANDING ANYTHING TO
<br />9.12 Severability. Should a court of law determine that any clause or section of this
<br />THE CONTRARY HEREUNDER, NEITHER CONSULTANT NOR CLIENT SHALL BE LIABLE TO
<br />Agreement is invalid, all other clauses or sections shall remain in effect.
<br />THE OTHER FOR ANY CONSEQUENTIAL, PUNITIVE, INDIRECT, INCIDENTAL OR SPECIAL
<br />9.13 Waiver. The failure of either Party hereto to exercise or enforce any right under this
<br />DAMAGES, OR LOSS OF USE OR RENTAL, LOSS OF PROFIT, LOSS OF BUSINESS
<br />Agreement shall not constitute a release or waiver of the subsequent exercise or
<br />OPPORTUNITY, LOSS OF PROFIT OR REVENUE OR COST OF FINANCING, OR OTHER SUCH
<br />enforcement of such right.
<br />SIMILAR AND RELATED DAMAGE ASSERTED IN THIRD PARTY CLAIMS, OR CLAIMS BY
<br />9.14 Entire Agreement. The terms and conditions set forth herein constitute the entire
<br />EITHER PARTY AGAINST THE OTHER.
<br />understanding of the Parties relating to the provision of Services by Consultant to Client.
<br />8.4 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL
<br />This Agreement may be amended only by a written instrument signed by both Parties. In
<br />LIABILITY IN THE AGGREGATE OF CONSULTANT, CONSULTANT’S OFFICERS, DIRECTORS,
<br />the event Client issues a purchase order or other documentation to authorize
<br />PARTNERS, EMPLOYEES, AGENTS, AND SUBCONSULTANTS, TO CLIENT AND ANYONE
<br />Consultant’s Services, any conflicting or additional terms of such documentation are
<br />CLAIMING BY, THROUGH OR UNDER CLIENT FOR ANY CLAIMS, LOSSES, COSTS, OR
<br />expressly excluded from this Agreement.
<br />DAMAGES WHATSOEVER ARISING OUT OF, RESULTING FROM OR IN ANY WAY RELATED
<br />
<br />Rev. 2024-11-04 Braun Intertec General Conditions Page 2 of 2
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