ARTICLE 1: SERVICES
1.1Agreement. This Agreement consists of two parts: the Proposal and these Terms and Conditions, Articles 1 through 6.
1.2Scope. Consultant will provide the service set forth in the Proposal, and any Additional/Optional services requested by the Client and agreed to by the Consultant. Unless agreed otherwise in a separate written instrument executed by both parties, any and all services performed by Consultant shall be subject to the terms and conditions of this Agreement.
1.3Changes. The Consultant and Client may at any time, by mutually agreed written amendment (“Amendment”), make changes within the general scope or services to be performed by Consultant.
1.4 Termination. Either Consultant or Client may terminate the Agreement upon ten (10) days’ written notice to the other Party, in which event Client shall pay Consultant for all services rendered and reimbursable expenses incurred prior to termination.
ARTICLE 2: DUTIES
2.1 Standard of Care. In providing services under this Agreement, the Consultant will endeavor to perform in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing in the same locality and under similar circumstances.
2.2 Professional Services and Disclaimer of Warranties. The services provided by Consultant are purely professional services, the essence of which is the providing of advice, judgment, opinion, or similar professional skill. Consultant is entering into this Agreement for the exclusive benefit of the Client. In performing these services, Consultant does not make any warranties, either express or implied, as to the quality of its services.
2.3 Review of the Work. If required by the scope of work in the Proposal, or if otherwise agreed by Consultant and Client, Consultant may include site visits to look for general compliance with the design intent during the Construction Phase. Consultant will not make continuous or exhaustive inspections of the quality or quantity of the work performed by Client’s contractor; such inspections are the responsibility of others. The Consultant does not direct the Client’s contractor, subcontractors, or other consultants, and assumes no responsibility for locating defects, errors, or omissions in construction or deviations from the design.
2.4 Reliance on Client-supplied Information. To the extent that Consultant is relying upon documentation or information supplied to it by Client or the Client’s consultants, Consultant shall be entitled to rely upon the accuracy of those documents in preparing its design. Client acknowledges that the Consultant's recommendations are based upon the best available information, some of which has been provided by third parties to Consultant, and are limited by accuracy of such information and that Project results will be dependent on multiple factors, many of which are outside Consultant's control.
2.5 Client Warranty and Representation. Client agrees that Consultant’s mechanical design shall be executed as specified n the final design package. In the event of changes and/or substitutions to any aspects of this design, client shall request review in writing by Consultant for suitability and/or need for redesign (billed at hourly fee) and Client shall not proceed with changes until directed to do so in writing by Consultant. Client warrants and represents that Client will engage only qualified contractors and consultants to perform the services necessary to execute Client’s design. Client further represents and warrants that it has the authority to bind Client to this Agreement, and that Client is financially solvent and able to pay debts when due.
2.6 Performance Testing. Client understands that performance testing, if any, provided by Consultant is not a guarantee that the Project complies with all laws, codes, regulations, and requirements. Performance testing indicates only that the data established a certain outcome at the time such performance testing was performed and under the established rubric utilized by Consultant.
ARTICLE 3: PAYMENT
3.1 Payments. Consultant will invoice Client in accordance with this Agreement, and any Amendment(s) for services and reimbursable expenses. Client agrees to promptly pay Consultant the full amount of each such invoice upon receipt.
3.2 Unpaid Invoices. Consultant reserves the right to suspend and/or terminate services in the event that any invoices remain unpaid for more than thirty (30) days from the due date on the invoice. Balances past due longer than 30 days will accrue interest at the rate of 1.5% per month (18% per annum).
ARTICLE 4: CLAIMS
4.1 Consequential Damages. The Consultant and Client mutually waive claims for consequential damages for claims, disputes, or other matters in question arising out of or relating to this Agreement, including without limitation the following categories of damages: lost profits; loss of rental income; rental expenses; interest expenses; loss of financing; and damages caused by delay in providing the Consultant’s services. This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination of this Agreement.
4.2 Limitation of Liability. In recognition of the relative risk and benefits of the project to both the CLIENT and the CONSULTANT, the risks have been allocated such that the total liability of CONSULTANT, its employees, officers, and subconsultants to CLIENT for any and all injuries, claims, losses, expenses, or damages whatsoever from any cause or causes, including, but not limited to, strict liability, breach of contract, breach of express warranty, negligence, or errors or omissions shall not exceed the amount of the fee paid by the client to the consultant.
4.3 Sole Recourse. The Client and Consultant intend that Consultant’s services shall not subject Consultant’s individual employees, officers, or directors to any personal legal exposure. Therefore, notwithstanding anything in this Agreement to the contrary, Client agrees that as its sole and exclusive remedy, any claim, demand, or suit shall be directed and/or asserted only against Consultant, a Texas limited liability company, and not against any of its employees, officers, or directors.
4.4 Risk Allocation. Consultant will be responsible only for its own work and not for defects in the work designed or built by others, including without limitation Client’s Contractor or other engineers and consultants.
4.5 Waivers of Subrogation. The Client and Consultant waive all rights against each other, and any of Consultant’s consultants, if any, and any of their subcontractors, sub-subcontractors, agents, and employees, for damages caused by fire or other causes of loss to the extent covered by property insurance applicable to the Project, except such rights as they have to proceeds of such insurance held by the Client as fiduciary. The policies shall provide such waivers of subrogation by endorsement or otherwise.
Article 5: Dispute Resolution
5.1Mediation. Any claim, dispute, or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to binding dispute resolution. Unless the Parties agree otherwise, mediation shall be administered by the American Arbitration Association in accordance with its Construction Industry Mediation Procedures in effect on the date of the Agreement.
5.2Binding Dispute Resolution. This Agreement shall be construed under and in accordance with the laws of the State of Texas. Any claim, dispute or other matter in question arising out of or related to this Agreement and/or the services provided by Consultant shall be subject to litigation in Travis County, Texas.
5.3 Joinder. Consultant will not be required to participate in any mediation or arbitration proceeding with any parties other than Client without Consultant’s express written consent.
ARTICLE 6: MISCELLANEOUS
6.1 Assignment. Except as otherwise provided by this Agreement, neither Client nor Consultant shall assign, sublet, or transfer his interest in this Agreement without the written consent of the other. Further, neither Client nor Consultant shall assign or transfer any claims they may have arising from this Agreement or the services performed hereunder.
6.2 Entire Agreement. The Agreement contains the entire agreement between Client and Consultant, and supersedes and controls over all prior written or oral understandings. No oral statements or prior written matter shall be of any force or effect. The Agreement may be modified only by written document executed by both parties.
6.3 INDEMNITY. To the fullest extent allowed by law, Client agrees to INDEMNIFY AND HOLD HARMLESS Consultant from and against any and all claims, lawsuits, losses, and damages, including attorneys’ fees, arising out of or from (i) the failure of the Client or the Client’s contractor to install the system in accordance with Consultant’s design for this Project; or (ii) the Client/Owner’s use of the system in any manner contrary to the intended use relied upon by Consultant in designing the system.
6.4 OWNERSHIP OF DOCUMENTS. Any drawings, specifications, computer files, electronic media (CAD), field data, notes, and other documents prepared by Consultant for this Project are Instruments of Service for use solely with respect to this Project. Consultant shall be deemed the author or creator of these documents and shall retain all common law, statutory, and other reserved rights, including the copyright. By execution of this Agreement, the Consultant grants to the Client a limited, nonexclusive license to use the Instruments of Service for purposes of constructing, using, designing, and/or maintaining the Project, provided that the Client substantially performs its obligations, including prompt payment of all sums when due, under this Agreement.
6.5 CONDOMINIUM PROJECTS. Consultant has assumed that the Project will not involve condominiums, which are defined as the multi-family or mixed use residential property comprising all or part of the Project, the units of which will be individually owned by unit owners who share in joint ownership of any common elements. It is an essential and material term of the Agreement that the Project does not involve condominiums. If the Project involves condominiums, the Client agrees to notify Consultant in writing within five (5) days of executing this Agreement. All condominium projects are subject to Consultant’s Special Requirements for Condominium Projects.