Terms & Conditions
WHEREAS, Client desires to contract with Consultant to furnish Services to Client’s project identified in the Proposal between Client and Consultant (the “Project”).
NOW, THEREFORE, in consideration of the mutual covenants and promises included herein, Client and Consultant agree as follows:
OFFER ACCEPTANCE – Client hereby accepts Consultant’s offer to provide Services as described in Consultant’s Proposal referenced under “Scope of Work” and agrees such Services and any additional Services authorized by Client shall be governed by this “Terms and Conditions of Service” (“Agreement”).
CONTRACT DOCUMENTS – “Contract Documents” shall mean this document as well as the Proposal, each of which is incorporated into the other.
PAYMENT – Client shall pay Consultant for Services and expenses in accordance with the Proposal. Each invoice is due upon presentation. Invoices are past due if not paid thirty (30) days after the date of the invoice. Past due amounts are subject to a late payment fee of 1 ½% per month or the maximum amount allowed by applicable law on the outstanding balance, whichever is less. Client shall be responsible for all attorneys’ fees and other costs incurred by Consultant, or anyone on its behalf, in an effort to collect late payments.
WAIVER OF CONSEQUENTIAL DAMAGES – IN NO EVENT SHALL CONSULTANT OR CLIENT BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGES, INCLUDING LOST PROFITS AND LOSS OF USE.
INSTRUMENTS OF SERVICE – In connection with the performance of the Services, Consultant shall deliver to Client one or more drawings, renderings, or other written documents reflecting Services provided. All drawings and documents provided by Consultant to Client are “Instruments of Service,” reflecting the Services provided by Consultant to Client pursuant to this Agreement and are provided for the exclusive use of Client and Client’s agents and employees for the Project and are not to be used or relied upon in connection with other projects. Subject to the authorized use of Client and Client’s agents and employees, all Instruments of Service are, and shall remain, the sole and exclusive property of Consultant. Should Client make Instruments of Service available to third-parties, Client and Consultant expressly agree there are no third-party beneficiaries to this Agreement, and Consultant’s only obligation with regard to such Instruments of Service shall be to Client only, limited to the provisions of this Agreement.
COMPLIANCE WITH REGULATIONS & LIMITATION OF SAME – Notwithstanding the foregoing, all Instruments of Service provided by Consultant comply with OSHA and all other federal, state and local governmental agency regulations. Consultant’s evaluation of the contractor’s performance expressly excludes and specifically disclaims any responsibility and/or liability for the above, including, without limitation, review or observation of the adequacy of the contractor’s safety measures, the safety conditions on the Project Site and the contractor’s means and methods of construction.
RIGHT OF ENTRY – When entry to property is required, Client grants to Consultant and its subcontractors or agents the right to enter the Property owned by Client in order for Consultant to fulfill its contractual obligations hereunder. If Client does not own the property, Client agrees to obtain all legal rights of entry onto the property. Client agrees to indemnify Consultant from any alleged damages as a result of any unauthorized entry by any party, including by Client, any subcontractors or agents, or anyone entering the property as a result of Consultant’s presence on the property.
INFORMATION PROVIDED BY CLIENT – To the extent Client provides information (including services by others) to Consultant in connection with the Services to be rendered by Consultant, Client agrees Consultant shall not be liable for any claims for injury or loss arising from errors, omissions, or inaccuracies in the information provided. Client shall compensate Consultant for all time spent and expenses incurred in defending such claim or in revising, altering, or correcting Consultant’s work as a direct or indirect result of the errors, omissions, or inaccuracies of the information provided by or on behalf of Client.
OPINION OF PROBABLE COSTS – Any opinions of probable costs or estimates provided by Consultant are based upon the information available to Consultant at the time the opinion is provided to Client. However, Consultant has no control over the cost of labor, materials, equipment or services furnished by others or over the General Contractor’s method of determining prices or over market conditions (including, but in no way limited to, prices/market conditions resulting from natural disasters, inflation, shortages, or any other reason). Therefore, Consultant does not provide any guarantee to Client, and expressly disclaims any guarantee, that the Proposal, bids or actual project/construction costs will not vary from any opinion provided.
INDEMNITY – Client agrees to indemnify, defend and save harmless Consultant, its agents, employees and subcontractors from and against any and all losses, liabilities, and costs and expenses of every kind (including cost of defense, investigation, settlement, and reasonable attorneys’ fees), which Consultant may incur, become responsible for or pay out as a result of (1) Client’s breach of this Agreement, or (2) as a result of bodily injuries (including death) to any person and damage to any property or both, to the extent caused by Client’s negligence or misconduct. Client shall, in the event of liability arising out of Client’s and Consultant’s joint negligence or misconduct, indemnify, defend and save harmless Consultant in proportion to Client’s relative degree of fault.
CONFLICTS – In the event of any inconsistency, conflict, or discrepancy between the Agreement and the Proposal, the Agreement shall govern.
NO ORAL MODIFICATION – No amendment or modification to this Agreement or any waiver of any provisions herein shall be effective unless in writing and signed by both parties.
DELAYS – Consultant shall not be liable to Client for any damages resulting from delay related to the Project. Additionally, should completion of any portion of the Services be delayed for causes beyond the reasonable control of or without the fault or negligence of Consultant, any time for performance by Consultant delineated in the Proposal shall be extended for a period equal to the delay. Consultant shall be paid in full for all Services rendered under this Agreement, including any additional Services authorized by Client in excess of those stated in this Agreement or Proposal. Client’s obligation to pay under this Agreement or Proposal is in no way dependent upon the Client’s ability to obtain financing, payment from third parties, approval of governmental or regulatory agencies, or upon Client’s successful completion of the Project.
LIMITATION OF LIABILITY – Client is cautioned this Agreement limits the liability of Consultant; therefore, Client is advised to carefully review Client’s risks of liability related to this Agreement and address such risks through Client’s insurance or other means.
Consultant and Client mutually agree the Services provided pursuant to this Agreement involve risks of liability under this Agreement. One of these risks stems from Consultant’s potential for human error. Therefore, the total cumulative liability of Consultant, its agents, employees and subcontractors, for any cause of action whatsoever, whether in contract, tort, (including negligence (whether sole or concurrent)), strict liability, or otherwise, arising out of, connected with or resulting from the Services provided pursuant to this Agreement, shall not exceed the total fees paid by Client for its Services on this Project or $50,000, whichever is less.
DESIGNATION OF AUTHORIZED REPRESENTATIVES – Each Party shall designate one or more persons to act with authority on its behalf with respect to appropriate aspects of the project. The persons designated shall review and respond promptly to all inquiries by or on behalf of the other.
INVENTIONS – Any and all inventions or discoveries related to the Services, including improvements and modifications to existing products or processes made or conceived by Consultant or its employees during the term of this Agreement, are and shall remain the sole and exclusive property of Consultant.
CONSTRUCTION RELATED SERVICES – When construction-phase services are included in the Proposal, Consultant will provide personnel to make periodic observations to determine if construction is in general compliance with the Contract Documents, but not to perform detailed measurements or inspection of the work unless specifically designated in the Proposal. Consultant is not a guarantor or insurer of the work of any contractor of subcontractor. The contractor is solely and exclusively responsible for the accuracy and adequacy of construction and for all other activities performed by the contractor and any subcontractors, including the methods and means of construction, supervision of personnel and construction control and operation of machinery, false work, scaffolding and other temporary construction aids, safety in, on and about the job site.
NO WAIVER – No waiver by either party of any default by the other party in the performance of any provision of this Agreement shall operate as or be construed as a waiver of any future default, whether of like or different character.
CHOICE OF LAW – The validity, interpretation, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina.
RELATIONSHIP OF PARTIES – The relationship of the parties is that of a buyer and seller of professional services and neither party shall act as an agent or representative of the other. The parties shall not be deemed to have formed a joint venture or partnership.
NO ASSIGNMENT – Neither party shall assign or transfer its rights hereunder without the prior written consent of the other party; provided, however, Consultant may subcontract portions of the Services to qualified subcontractors.
FORCE MAJEURE – Neither Consultant nor Client shall be liable for any fault or delay caused by any contingency beyond their control, including, but not limited to, acts of God, wars, terrorism, strikes, walkouts, labor conditions, governmental action, internet disturbance, fires, natural disasters, and/or epidemics.
DISPUTE RESOLUTION – Should any dispute arise between Client and Consultant regarding this Agreement, the parties hereby waive any right to a jury trial and the parties agree to submit the dispute to mandatory, binding arbitration. Such arbitration shall be conducted in accordance with the arbitration rules of the American Arbitration Association. Costs and attorneys’ fees shall be governed as set forth in this Agreement.
SEVERABILITY – If any provision of this Agreement, or application thereof to any person or circumstance, shall to any extent be invalid, then (a) such provision shall be modified if possible to fulfill the intent of the parties as reflected in the original provision, (b) the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby, and (c) each provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.
ENTIRE AGREEMENT –This Agreement represents the entire understanding and agreement between the parties hereto relating to the Services and supersedes any and all prior negotiations, discussions and Agreements, whether written or oral, between the parties regarding same.
