|
TERMS AND CONDITIONS Of PROFESSIONAL SERVICES AGREEMENT
<br />1. Agreement. The Client may authorize Abonmarche to proceed with work
<br />either by - signing. a Professional Services Agreement or by issuing an
<br />acknowledgement, confirmation, purchase order, or other communication.
<br />Regardless of the method used, these Terms and Conditions shall be
<br />incorporated by reference and shall prevail as the basis of the Client's
<br />Agreement to Abonmarche. Any Client document or communication in
<br />addition to or in conflict with theses Terms and Conditions shall be
<br />subordinate and subject to these provisions.
<br />2. Execution. Abonmarche has the option to render this Agreement null and
<br />void, if it is not executed within thirty (30) days of delivery.
<br />3. Client Responsibilities. The Client will provide all criteria and information
<br />concerning the requirements of the Project.
<br />4. Performance. The standard of care for services performed by or provided by
<br />Abonmarche will be the care and skill ordinarily used by Abonmarche's
<br />profession practicing under similar circumstances at the same time and in the
<br />same locality.
<br />5. Hourly Billing Rates. Unless stipulated otherwise, the Client will compensate
<br />Abonmarche at the current hourly billing rates, in place when the services
<br />are provided by Abonmarche.
<br />6. Reimbursable Expenses. Reimbursable expenses, the actual costs incurred
<br />directly or indirectly for the Client's Project, will be charged at Abonmarche's
<br />current rates. Examples of in -house reimbursable expenses include, but are
<br />not limited to: mileage, tests and analyses, special equipment services,
<br />postage and delivery charges, telephone and telefax charges, copying,
<br />printing, and binding charges. Outside reimbursable expenses will be
<br />charged on the basis of the actual costs times a factor of 1.15. Examples of
<br />outside reimbursable expenses include, but are not limited to: Commercial
<br />transportation, Subcontractors, meals, lodging, special fees, licenses, permits,
<br />and outside technical or professional services.
<br />7. Additional Services. Additional services that may be provided pursuant to the
<br />Agreement or any subsequent modification of the Agreement will be
<br />authorized, when possible, by written amendment signed on behalf of the
<br />Client and Abonmarche. Additional services, performed by Abonmarche are
<br />subject to all Terms and Conditions and the Client will be responsible for
<br />payment. Should the Client, regulatory agency, or any public body or
<br />inspector direct modification or addition to work covered by this Agreement,
<br />the cost will be added to the agreed price. Verbal requests for extra work
<br />should be made in writing via a change order, but none the less,
<br />Abonmarche is entitled to be paid for extra work provided whether it is in
<br />writing or not.
<br />8. Underground Structures or Buried Utilities. Abonmarche will use public utility
<br />location services where available to perform this service. The Client is
<br />responsible for identification and location of all public and private buried
<br />structures on the Client's property and the Project site, such as but not limited
<br />to storage tanks and lines, or gas, water, sewer, electrical, phone, cable, or
<br />any other public or private utilities. Abonmarche will take reasonable care to
<br />avoid such structures but will not be responsible for accidental damage to
<br />utilities or structures that were not specifically or clearly located by the Client
<br />or for damages or losses claimed by third parties related hereto.
<br />9. Site Access and Security. With the exception of access rights that land
<br />surveyors are afforded by law, the Client will provide Abonmarche access to
<br />the Project site and the Client will be responsible for obtaining any necessary
<br />permission from any affected third party property owners for use of their
<br />lands. The Client is solely responsible for site security.
<br />10. Subcontractors. Abonmarche may engage Subcontractor(s) on behalf of the
<br />Client to perform any portion of the services to be provided by Abonmarche.
<br />11. Opinions of Cost. Any opinions of probable construction cost and /or total
<br />project cost provided by Abonmarche will be on the basis of experience and
<br />judgment, but these are only estimates, Abonmarche does not warrant that
<br />bids or ultimate construction or total project costs will not vary from such
<br />estimates.
<br />12. Ownership of Work Product. Abonmarche will remain the owner of all original
<br />drawings, reports, and other materials provided to the Client, whether in hard
<br />copy or magnetic media form. The Client is authorized to use the copies
<br />provided by Abonmarche only in connection with the Project. Any other use
<br />or reuse by the Client for any purposes whatever will be at the Client's risk
<br />and full legal responsibility, without liability to Abonmarche and the Client will
<br />defend, indemnify, and hold Abonmarche harmless from all claims,
<br />damages, losses, and expenses, including attorney fees arising out of or
<br />resulting there from.
<br />13. Electronic Media. Copies of data, reports, drawings, specifications, and other
<br />materials furnished by Abonmarche that may be relied upon by the Client
<br />are limited to the printed copies (also known as hard copies) that are
<br />delivered to the Client pursuant to the services under this Agreement.
<br />Computer files of text, data, graphics, or of other types of electronic media
<br />are the sole possession of Abonmarche, unless specifically stated otherwise in
<br />an amendment to this Agreement. Any electronic media provided under
<br />this Agreement to the Client are only for the convenience of the Client. Any
<br />conclusions or information obtained or derived from such electronic files will
<br />be at the user's sole risk.
<br />14. Bonds and Permits. The Client will be responsible for the adoption of any site
<br />access or right of way bonds that may be initiated on their behalf. At
<br />completion of Abonmarche's services, the Client will take responsibility and
<br />pay any ongoing bond or permit costs for any bonded or permitted work.
<br />15. Third party Invoicing. If the Client directs Abonmarche to invoice other party
<br />payers, Abonmarche will do so, but the Client agrees to be ultimately
<br />responsible for Abonmarche's compensation until the Client provides
<br />Abonmarche with the third party's written acceptance of all terms of this
<br />Agreement and until Abonmarche agrees to the substitution.
<br />16. Stop Work, In addition to any other remedies Abonmarche may have,
<br />Abonmarche will have the absolute right to cease performance of any basic
<br />or additional services in the event that payment is not made as provided or
<br />otherwise agreed.
<br />17. - Legal. Expenses. If either the Client or Abonmarche makes a claim against
<br />the other arising out of this Agreement, the prevailing party will be entitled to
<br />recover reasonable expenses of litigation, including reasonable attorney's
<br />fees. If Abonmarche brings a successful lawsuit against the Client to collect
<br />invoiced fees and expenses, the Client agrees to pay Abonmarche
<br />reasonable collection expenses, including attorney fees.
<br />18. Arbitration. Any claims, counterclaims, disputes, and other matters in question
<br />between the parties arising out of or relating to the Agreement or the breach
<br />thereof will be submitted to Arbitration in the City of South Bend, Indiana in
<br />accordance with the Rules of the American Arbitration Association. The
<br />award of the Arbitrator will be final and binding on the parties. Judgment
<br />upon any award . rendered may be entered in any court having jurisdiction.
<br />19. Indemnity. Abonmarche will defend, indemnify, and hold the Client harmless
<br />from any claim, liability, or defense cost for injury or loss sustained by any
<br />party from exposures caused by Abonmarche's negligence or willful
<br />misconduct. Client agrees to defend, indemnify, and hold Abonmarche
<br />harmless for any claim, liability, or defense cost for injury or loss sustained by
<br />any party from exposures allegedly caused by Abonmarche's performance
<br />of services hereunder, except for injury or loss caused by the negligence or
<br />willful misconduct of Abonmarche.
<br />20. Consequential Damages. The Client and Abonmarche waive consequential
<br />damages for claims, disputes, or other matters in question relating to services
<br />provided as a part of this Agreement, including for example, but not limited
<br />to, loss of business.
<br />21. Governing Law. This Agreement will be deemed to have been Made in St.
<br />Joseph County, Indiana and shall govern by and construed in accordance
<br />with the laws of the State of Indiana.
<br />22. Considerations. The, successors, executors, administrators, and legal
<br />representatives of the Client and Abonmarche are hereby bound on to the
<br />other with respect to the covenants, Agreements, and obligations of this
<br />Agreement.
<br />23. Acts of God. Neither the Client nor Abonmarche will have any liability for
<br />nonperformance caused in whole or in part by causes beyond
<br />Abonmarche's reasonable control. Such causes include, but are not limited
<br />to, Acts of God, civil unrest and war, labor unrest and strikes, acts of
<br />authorities, and events that could not be reasonably anticipated.
<br />24. Termination. Either the Client or Abonmarche may terminate this Agreement .
<br />by giving ten (10) days written notice to the other party. If Client terminates
<br />this Agreement, the Client will pay Abonmarche in full for all work previously
<br />authorized an performed prior to the effective date of the termination, plus
<br />(at the discretion of Abonmarche) a termination charge to cover finalization
<br />of work necessary to bring ongoing work to a logical conclusion. Such
<br />charge will not exceed thirty (30) percent of all charges previously incurred.
<br />Upon receipt of such payment, Abonmarche will return to the Client all
<br />documents and information that are the property of the Client.
<br />End of Agreement
<br />Reviewed by City of South Bend Legal Department
<br />05/18/10
<br />COSB Reviewed 03/08/06 Page 2 of 2
<br />
|