IntroductionThis document applies to all of our services. The performance and sale of all services, including engineering, design, drawing,consulting, training, inspection, analysis and other services (collectively, “Services”) by TeamEngineerNH, PLLC (“Team Engineering”) and/or its employees, contractors, subcontractors and agents (“Team Personnel”), are subject to these standard terms and conditions (“STC”). The agreement (“Agreement”) between Team Engineering and its client (“Client”) consists exclusively of the STC together with the applicable proposal, engagement letter, or other agreement signed by Team Engineering and Client (collectively, the “Proposal”), any documents specifically incorporated therein by reference, and any amendments thereto that are agreed to in writing.
ServicesWe’ll do what we agreed we would do. The Services that Team Engineering will perform are those Services specified in the applicable Proposal, Confirmation Letter, Engineered Home Inspection Agreement form, Property Condition Assessment letter or other document signed by Team Engineering, as it may be supplemented or amended in writing by Team Engineering, including emails sent by Team Engineering (the “Scope”). There shall be no oral changes to the Scope unless and until those changes are confirmed in writing by Team Engineering, including by an email sent by Team Engineering. In the case of a “Blanket Agreement” entered by Team Engineering, the Scope will be those Services that Team Engineering agrees in writing to perform from time to time after entering the Blanket Agreement. If Client requests changes in Scope, and Team Engineering agrees to such changes, Client agrees that Team Engineering may revise delivery schedules and Client agrees to pay amounts in addition to the specified price in the Agreement as reasonably required by Team Engineering. Unless otherwise specified in writing by Team Engineering, any additional amounts shall be calculated on a time and materials basis at Team Engineering’s standard rates then in effect (“T&M”).
Standard of CareWe’ll do the work right.Team Engineering will perform Services using that level of skill and care that is ordinarily exercised by other reputable engineering firms in accordance with generally accepted practices under similar circumstances in the same or similar locality at the time the Services are provided.
Client’s ResponsibilitiesYou’ll assist us. Client agrees to provide safe access to applicable facilities and sites (collectively, the “Project Location”),and prompt access to project related documents and other information and resources reasonably required by Team Engineering for the performance of the Services. Client grants permission, and warrants that permission has been obtained if the Project Location is not owned by Client, for Team Personnel to enter the Project Location for the purpose of providing the Services. Client will be solely responsible for, and assumes the risk of any problems resulting from, the content, accuracy, completeness and consistency of all documents and information supplied by Client.
PaymentYou agree to promptly pay us as agreed. Client will pay Team Engineering pursuant to the Agreement. Team Engineering’s prices do not include sales, use, or similar taxes, if applicable, all of which Client agrees to pay when due. Unless otherwise provided in the Agreement, all sums are due upon Client’s receipt the invoice. Client agrees to pay interest on any amounts not paid within 15 days following the invoice date at the rate 1.5% per month, or the maximum percentage allowed by law, whichever is less. Payments shall first be applied to any accrued interest and then to the principal unpaid amount. Client also agrees to pay all costs of collection, including reasonable attorney’s fees and expenses, incurred by Team Engineering. Client agrees that Team Engineering may suspend Services and withhold Deliverables (as hereinafter defined) while any sum due hereunder remains unpaid by Client.
Budgetary EstimatesBudgetary estimates are estimates only, and not binding. Team Engineering may furnish estimates of fees and costs based upon ourprofessional judgment, but absent a specific agreement in writing to thecontrary, such estimates do not constitute a maximum or fixed-fee quotation, or a guarantee or representation that actual quantities or costs will be consistent with our estimates.
Changed ConditionsYou will pay us to do approved extra work required by unforeseen conditions or events. The Client acknowledges that certain Services involve latent issues, inherent uncertainties, and unforeseen conditions or events, which is frequently the case when a Scope involves existing facilities. Such issues, uncertainties and conditions or events may require a phased or staged investigation, and with the need for additional Services, costs, and/or project delays only becoming apparent as Services progress.
Team Documents and DeliverablesWe own our work, and give you limited permission to use it for whatyou paid us for. All documents, data, calculations and work papers prepared or developed by Team Engineering, whether or not in connection with a particular Scope (“Team Documents”) are instruments of service and remain the exclusive property of Team Engineering. Written reports and deliverables which Team Engineering agrees to provide to Client in a particular Scope, such as data, analyses, or other documents (“Deliverables”) are furnished for the exclusive use of Client for the sole purpose evident from the Proposal. Any use or distribution of Team Documents, or any other use or distribution of Deliverables, by Client without the written authorization of Team Engineering is prohibited. Client agrees to defend, indemnify and hold Team Engineering harmless against all claims, damages, losses, and expenses (including reasonable attorneys’ fees) arising from or in any way connected with the unauthorized use or modification of the Deliverables and/or use of Team Documents by Client or anyone that obtains the Team Documents or Deliverables from or through Client without the written authorization of Team Engineering. All inventions, concepts, ideas, and methodologies conceived, developed and/or used by Team Engineering (“Team Engineering’s IP”) shall remain the exclusive property of Team Engineering. Client shall have the nontransferable right to use any Deliverables delivered by Team Engineering that may contain Team Engineering’s IP, if any, as may be required to effect the intent of the engagement and not for any other purpose, including but not limited to competing with Team Engineering in providing any similar services to third parties.
DisclosureDisclosure of information is sometimes required.Subject to the obligation to protect Client’s information consistent with professional standards, Team Engineering reserves the right to disclose information from Client and/or obtained in the course of performing the Services to protect property, health, or safety, or if the law requires disclosure. In such case, Team Engineering will also make efforts to notify Client if an unrequested disclosure is warranted.
InsuranceTeam Engineering maintains only certain limited insurances. Team Engineering does not, and will not be required to, maintain insurance except for following: worker’s compensation insurance, general business liability and automobile liability insurance in the following amounts: Workers Compensation: $500,000/accident, $500,000 per disease, $500,000 per year. General Business Liability: $2,000,000 Occurrence/$2,000,000 Aggregate Automobile: $1,000,000 combined single limit.
Disclaimer of WarrantiesEXCEPT AS SET FORTH IN SECTION 3 (STANDARD OF CARE), TEAM ENGINEERING MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO THE SERVICES FURNISHED UNDER THE AGREEMENT. TEAM ENGINEERING SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES.
Remedy LimitedYou will allow us to fix a mistake.The parties acknowledge and agree that the Services are being provided by Team Engineering with the expectation that Team Engineering is not assuming any financial or operational risks of the Client. In the event Team Engineering commits an error with respect to or incorrectly performs the Services, Team Engineering shall use commercially reasonable efforts to correct such error, or re-perform such Services, at no cost to Client. Client acknowledges that its sole and exclusive remedy, and Team Engineering’s sole and exclusive liability, for any defect or error in the Service shall be correction, re-performance or substitution of such services by Team Engineering. Client promises to give Team Engineering an opportunity to remedy any such defect or error. Client agrees to notify Team Engineering in writing ofany such defects or errors within 30 days of discovery, and, in anyevent, not more than 120 days after substantial completion or termination of Services.
Limitation of LiabilityWe aren’t responsible for things we don’t do or control;our liability is limited.Team Engineering is not responsible for the acts or omissions of others, or for any cause beyond the reasonable control of Team Engineering. Client agrees that any claim (at law or in equity) arising out of any alleged negligent or wrongful actions, omissions, or failures to act on the part of any member, manager, director, officer, or employee of Team Engineering, in the performance of the Services, shall be made against Team Engineering and not against such member, manager, director, officer, or employee. Without affecting the limitation of remedy set forth in Section 12 hereof, in no event shall the maximum liability of Team Engineering for a claim of any kind arising out of or in connection with the Agreement exceed the total of fees received by Team Engineeringunder the Agreement.
Exclusion of Consequential DamagesWe are not liable for legally termed “consequential damages” if we make a mistake. In no event shall Team Engineering be liable for any special, indirect, incidental or consequential damages, including loss of profits or business interruption or loss of use of equipment, however caused, arising from or in connection with the Services and/or the alleged breach of the Agreement.
Survival of ActionsThe survival of actions is limited. Any cause of action arising under or in connection with the Agreement by Client against Team Engineering shall survive the completion or termination of the Services only for a period of (and claims based upon or arising out the Agreement must be asserted before the date which shall be) one (1) year after such completion or termination. The survival period set forth in this Section 15 shall expressly replace any statutes of limitations that would otherwise apply to the relevant claims under applicable law. The statute of repose pursuant to RSA Chapter 508 shall not be affected by the foregoing provision contained in this Section 15.
IndemnificationYou will hold us harmless against others’ proceedings and claims. Client agrees to hold harmless, indemnify and defend Team Engineering and its affiliates and their respective its members, managers, directors, officers, and employees, against all claims, suits, fines and penalties (including, but not limited to, investigation expenses, reasonable fees and charges of attorneys, and court and arbitration costs) that allegedly relate to or arise out of this Agreement and/or the Services, except where such indemnified party is solely responsible therefor on account of his/her/its gross negligence or wilful misconduct.
Interpretation of Contract DocumentsIf construction phase services are not included in our Scope, Client shall be solely responsible for interpreting the Contract Documents. Unless the Scope expressly includes construction phase monitoring: it shall be the sole responsibility of the Client to observe the work of the contractor to discover, correct or mitigate errors, inconsistencies or omissions, and Client hereby waives,and shall not bring, any claim against Team Engineering or Team Personnel for loss, damage or expense arising from deviations in construction from the contract documents.
DisputesWe want disputes settled quickly and fairly. In the event of any dispute or controversy between the parties to this Agreement, the parties shall try to resolve the dispute in a fair and reasonable way. No legal action arising out of or in connection with the Agreement, except for nonpayment, shall be maintained until the parties have unsuccessfully concluded an attempt to mediate the dispute in a reasonable way.
MiscThe Agreement, and the rights and remedies of the parties arising out of or in connection with the Agreement or the subject matter hereof, shall be exclusively governed by the laws of the state of New Hampshire without regard to its conflicts of laws provisions. Any cause of action regarding same shall be exclusively brought in the state or federal courts of the State of New Hampshire. This Agreement, except as otherwise provided herein, constitutes the entire understanding between the parties concerning the subject matter hereof and supersedes any prior agreements or understanding whether written or oral; and may not be amended except in a writing executed by all parties. Client shall not assign this Agreement or any rights, duties, or obligations of Client hereunder to any other person and/or entity without prior express written approval of the Team Engineering. Subject to the foregoing, the provisions of this Agreement shall inure to the benefit of and be binding upon the parties hereto, and their successors and assigns. The captions of this Agreement (including the italicized phrases immediately following the section titles) are for convenience and reference and in no way define, describe, extend or limit the scope or intent of this Agreement or any provision thereof. The provisions of Sections 9, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of these STC shall survive any termination of the Agreement.
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