STANDARD TERMS AND CONDITIONS

 

 

1. THE AGREEMENT: These terms and conditions are attached to a proposal (the “Proposal”) by Controlled Environment Systems LLC (“CES”) for materials and services (collectively, the “Services”) to be provided by CES to the client listed on the Proposal (the “CLIENT”). CES and CLIENT are collectively referred to herein as the “Parties.” The Parties agree that once the Proposal is signed and returned by the CLIENT, the signed Proposal together with these Terms and Conditions, constitutes a binding agreement between the parties (the “Agreement”). The Agreement is fully integrated and supersedes all prior representations, negotiations, master agreements, and/or other agreements of any kind.

2. SCOPE OF WORK:  CES’ scope of work is limited to the delivery/completion of the materials and services set forth in the Proposal.  In the event additional services by CES are required or desired due to a change in work, CLIENT's requirements, applicable law, industry standards, and/or governmental regulations, CES shall be entitled to such additional compensation for such additional services consistent with the pricing in the original Proposal. CES's scope of Services in this Agreement is based on facts known at the time of execution of this Agreement, including, if applicable, information supplied by CLIENT. CES will promptly notify CLIENT in writing of any changes to its scope of Services required by among other conditions, differing site conditions, new information relating to the project, and/or circumstances beyond CES’s control. The Parties shall mutually agree to modify this Agreement before CES begins performance of any revised scope.  All Services rendered under this Agreement are deemed accepted seven (7) calendar days following completion of such Services. If CES commences performing the Services prior to the execution of this Agreement at the CLIENT’s request, CLIENT acknowledges and agrees that CLIENT shall be deemed to have accepted all of the terms and conditions in this Agreement as of the date of such commencement.

3. INVOICES AND PAYMENT: CES will endeavor to submit monthly invoices to CLIENT for Services performed in the prior month. CLIENT shall pay CES the invoiced amount within thirty (30) days from the date of the invoice.  If CLIENT fails to pay any invoice within thirty (30) days from the date of the invoice, CLIENT shall be in default of this Agreement, and CLIENT agrees to pay all cost of collection of unpaid invoice amounts, including, without limitation, reasonable attorney's fees, regardless of whether legal action is initiated. Unpaid invoiced amounts will accrue interest at eight percent (8%) beginning thirty (30) days from the date of the invoice. If an invoiced amount remains unpaid for sixty (60) days or more after the date of the invoice, CES may, upon giving seven (7) days written notice of its intent to do so, suspend or terminate all Services until all unpaid invoiced amounts not in dispute are paid in full.  The prices in the Proposal have been calculated based on the current prices for labor, materials, and related resources. CES agrees to use its best efforts to obtain competitive prices from suppliers.  However, the market and pricing for the labor and materials in the Proposal could be volatile, and sudden price increases could occur. In the event of an increase in the prices of the labor or materials in the Proposal after execution of the Proposal, CLIENT agrees to pay that cost increase to CES.
    

4. CONSTRUCTION PHASE SERVICES: If CES's scope of Services includes providing professional design services during the Project's construction phase (“Construction Phase Services”), CES will not have control over or be responsible for any other contractor’s means, methods, techniques, sequences, procedures, or schedule, or the contractor’s failure to comply with the construction contract documents or applicable laws, ordinances, rules or regulations. If CES provides construction inspection or observation services, CES will report to CLIENT all contractor deviations from the construction contract documents of which CES has actual knowledge.  CLIENT acknowledges and agrees that such construction inspection or observation services are solely intended to enable CES to maintain familiarity with, and keep CLIENT informed of, the general progress and quality of the contractor’s work, and do not create a duty of CES to perform inspections of contractor work for its compliance with the construction contract documents, which shall remain solely contractor's responsibility.
    

5. MISCELLANEOUS EXPENSES: Except to the extent otherwise provided in this Agreement, CLIENT is solely responsible for all third-party fees and charges including, without limitation, fees and charges for inspections, zoning or annexation applications, assessments, soils engineering, soils testing, aerial topography, permits, rights-of-entry, bond premiums, title company charges, blueprint and reproduction costs, and all other third-party fees and charges, regardless of whether such third-party fees and charges were included in any pricing provided by CES in connection with the Proposal or otherwise.
    

6. Warranty, Disclaimers and Limitation of Liability. CLIENT EXPRESSLY WAIVES (AND CES DISCLAIMS) ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES SUCH AS THE FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOST REVENUE, LOST BUSINESS, LOST PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), LOST GOODWILL, OR ANY OTHER PECUNIARY LOSS, THAT A PARTY SUFFERS OR INCURS AS A CONSEQUENCE OF THE USE OR PERFORMANCE OF THE SERVICES OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL CES’S LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED in the aggregate, the total compensation actually received by CES from CLIENT under this Agreement.
    

7. SAFETY: CES will take reasonable steps to protect the safety of its own personnel and to perform its Services in a safe manner. CES is not responsible for safety other than with regard to its own Services and personnel.
    

8. REUSE OF PROJECT DELIVERABLES: CLIENT's (a) use of any project documents or CES deliverables, including, without limitation, electronic media, for any purpose other than that for which such documents or deliverables were originally prepared, or (b) alternation of such documents or deliverables without prior written verification or adaption by CES for the specific purpose intended is at CLIENT's sole risk.
    

9. OPINIONS OF CONSTRUCTION COST: Any opinion of construction costs prepared by CES is supplied for the general guidance of the CLIENT only. Since CES has no control over competitive bidding or market conditions, CES cannot guarantee the accuracy of such opinions as compared to contractor bids or the actual cost incurred by CLIENT.
    

10. INSURANCE:  During the performance of the Services and for two years thereafter, CES will maintain the following minimum insurance coverage: (a) General Liability - $1,000,000 per occurrence, $2,000,000 general aggregate, $2,000,000 products/completed operations aggregate, $1,000,000 personal/advertising injury aggregate; (b) Automobile Liability -$1,000,000 combined single limit; (c) Workers Compensation and Employers Liability - in conformance with statutory requirements; (d) $1,000,000 employer’s liability; and (e) Professional Liability - $2,000,00 per claim and in the aggregate. Certificates evidencing such coverage will be provided to CLIENT upon request. If CES is providing Construction Phase Services, CLIENT agrees to require its general contractor to include CES as an additional insured on the general contractor's General Liability and Automobile Liability insurance policies, and CES's above-listed coverage will be secondary to the contractor's coverage, which will be primary.
     

11. INDEMNIFICATION: To the fullest extent permitted by law, CLIENT agrees to defend, indemnify and hold harmless CES, its agents, servants, contractors, members, managers, affiliates, and/or employees (collectively, the “CES Parties”) from any and all liabilities, damages, costs and expenses, including, without limitation, reasonable attorneys’ fees and costs, arising out of or relating to this Agreement or the Services provided by CES hereunder, except to the extent such liabilities are exclusively caused by the acts or omissions of CES. The obligations set forth in this paragraph survive termination of the Agreement, as well as completion of Services.
     

12. DISPUTES: Any dispute arising out of or relating to this Agreement or CES's Services hereunder shall be governed by the laws of the State of Delaware, without regard to choice or conflicts of law principles. The parties agree that the exclusive forum for any such dispute shall be the state or federal courts located in the State of Delaware, and each party expressly waives any objection to such forum based on lack of personal jurisdiction, improper venue, or forum nonconveniens and personal service of any and all process upon them.
     

13. STATUTE OF LIMITATIONS: The Parties agree that the time period for bringing claims regarding the Services under this Agreement is shortened and expires on the one-year anniversary of the completion of the Services. 
     

14. DELAYS: CES is not responsible for delays caused by persons or circumstances beyond CES’s reasonable control, including, without limitation, suppliers or any other third party and such third party’s respective agents and representatives.
     

15. SHOP DRAWINGS: If CES's scope of Services includes reviewing shop drawings, such review is solely with regard to the drawings’ general conformance with the design concept, and not for the purpose of reviewing or approving their accuracy, completeness, dimensions, quantities, constructability, compatibility with other construction components, or compliance with the requirements of the construction contract documents, all of which remain the general contractor's responsibility. CES is not responsible for reviewing or approving the contractor's safety precautions or construction means, methods, sequences or procedures.
     

16. NO CONFLICT.  In the event of any conflict between this Agreement and any other written agreement between CES and CLIENT, the terms of this Agreement shall control.
     

17. FORCE MAJEURE.  CES shall not be responsible for any delay, damage, or loss due to strikes, lockouts, fires, explosions, acts of terrorism, acts of God, epidemic, pandemic, public health crisis, or any other cause beyond the reasonable control of CES, including, but not limited to, delays with vendors or contractors relating to the Services.