This Agreement for professional services has been entered into on the date of the letter between Precept Compliance LLC dba Pre Compliance (“Consultant”) and the Client, to whom the letter is addressed. All sales of engineering services, design services, detail drawing services, consulting services, inspection and analysis services, and testing services by Consultant (collectively referred to herein as “Engineering Services”) are subject to the following terms and conditions. All proposals, quotations or acknowledgments issued by Consultant are an offer to sell Engineering Services pursuant to these terms and conditions. Consultant objects to any additional or different terms contained in any documentation submitted by the Client. No waiver or modification of these terms and conditions shall be binding on Consultant unless authorized in writing by Consultant.
SCOPE. The scope of work for the Engineering Services to be provided to Client is specifically set forth in the proposal, quote, or acknowledgment submitted to Client by Consultant. If Client requests a change in the scope of the Engineering Services to be provided, Consultant reserves the right to revise delivery schedules and make an equitable adjustment to the price. Client acknowledges and agrees that Consultant is providing Engineering Services only and is not providing or participating in the provision of any product(s). Consultant will not be obligated to provide any services which are (a) outside of the scope defined in the applicable documentation; (b) outside its area of expertise; or (c) in violation of any applicable laws, codes or regulations.
CLIENT OBLIGATIONS. Client shall make available in a timely manner at no charge to Consultant all drawings, technical data, measurements, or other information and resources reasonably required by Consultant for the performance of the Engineering Services. Client will be responsible for, and assumes the risk of any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Client.
PRICES/TAXES. Unless otherwise stated or agreed, Consultant’s prices do not include sales, use, or similar taxes. Taxes, fees, costs of permits or licenses, etc. related to the Engineering Services and levied against Consultant will be considered reimbursable expenses to be paid by Client.
PAYMENT TERMS. Client shall be responsible for timely payment of invoices, regardless of any agreement that Client may make regarding cost sharing with other parties. Invoices will normally be submitted every four weeks, in U.S. Dollar amounts, for charges accrued during the previous four weeks. Standard payment terms are net 30 days for creditworthy Clients. Payment must be made in U.S. Dollars by check or order drawn on a U.S. bank; or, subject to Consultant approval, on a foreign bank having a corresponding agreement with a U.S. Bank. Any bank charges made to process an instrument will be considered a reimbursable expense. Payments not received within 30 days will incur a 1% finance charge per month until the payment is made. Consultant reserves the right to stop work on projects where payment is past due.
STANDARD OF CARE. Consultant will provide the Engineering Services in accordance with generally accepted professional engineering practices using reasonable care and skill consistent with that ordinarily exercised by members of the profession under similar conditions. However, due to the nature of the Engineering Services being provided, Consultant cannot fully guarantee the success of Client’s project. As such, except as set forth in this Section, Consultant makes no warranties or guarantees, whether express, implied, or statutory, regarding or relating to the Engineering Services furnished under this Agreement. Consultant specifically disclaims all implied warranties of merchantability and fitness for a particular purpose with respect to the Engineering Services.
REMEDY FOR BREACH OF THE STANDARD OF CARE. The parties acknowledge and agree that the Engineering Services are being provided by Consultant with the expectation that Consultant is not assuming any financial or operational risks of the Client. In the event Consultant commits an error with respect to, or incorrectly performs the Engineering Services, Consultant shall use commercially reasonable efforts to correct such error or re-perform such Engineering Services at no cost to Client. Client acknowledges that its sole and exclusive remedy, and Consultant’s sole and exclusive liability, for any defect or error in the Engineering Services shall be correction, re-performance, or substitution of such services by Consultant.
LIMITATION OF LIABILITY. In recognition of the relative risks and benefits of the Project to both the Client and Consultant, the risks have been allocated such that the Client agrees, to the fullest extent permitted by law, to limit the liability of Consultant and Consultant’s officers, directors, partners, employees, shareholders, owners and subconsultants for any and all claims, losses, costs, or damages of any nature whatsoever or claims expenses from any cause or causes, including attorneys’ fees and costs and expert-witness fees and costs, so that the total aggregate liability of Consultant and Consultant’s officers, directors, partners, employees, shareholders, owners and subconsultants shall not exceed $50,000, or Consultant’s total fee for services rendered on this Project, whichever is greater (the “Limitation Amount”), and further, in no event shall the Limitation Amount exceed the amount of insurance proceeds actually available to Consultant for the claim at issue at the time of settlement or final judgment net of any and all expenses paid or incurred on the claim at issue, payments made or incurred in connection with other claims made against Consultant, or any other circumstances which may reduce, impair, or eliminate the overall availability of such insurance to Consultant. It is intended that this limitation apply to any and all liability or cause of action, including without limitation active and passive negligence, however alleged or arising, unless otherwise prohibited by law. The Client specifically agrees that it has had the opportunity to negotiate this Limitation of Liability clause and to accept or reject its inclusion herein.
DELIVERY/FORCE MAJEURE. Consultant shall have no liability for delays or any other breach of its obligations resulting from an Act of God, war, riot, explosion, accident, act of government, work stoppage, default of subcontractor or supplier of materials, or any other cause beyond the reasonable control of Consultant.
CANCELLATION, SUSPENSION OR DELAY. Client may cancel an order for Engineering Services upon written notice to Consultant and payment of an agreed upon cancellation charge, which shall include all costs incurred by Consultant prior to the cancellation plus a reasonable profit. A purchase order may be suspended or delayed by Client with Consultant’s prior written consent. If Consultant agrees to a suspension or delay, Client shall reimburse Consultant for all costs incurred up to the date of such suspension or delay, plus a reasonable profit. All other costs related to and risks incidental to resumption of the Services shall be borne by Client.
DOCUMENTATION. Except as otherwise specifically set forth in the scope of work provided as part of the proposal or quotation, all documents, including drawings, specifications, computer files, electronic media, data, engineering calculations, notes, and other documents and instruments prepared or furnished by Consultant (collectively the “Documentation”) are the property of Consultant and shall not be considered works for hire. Consultant shall retain all common law, statutory and other reserved rights, including copyright, applicable to the Documentation. The Documentation is not intended or represented to be suitable for use on any other project. Any reuse of the Documentation without written verification or adaptation by Consultant for the specific purpose intended is prohibited and will be at Client’s sole risk and without liability or legal exposure to Consultant. Client agrees to defend, indemnify, and hold Consultant 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 Documentation by Client or any person or entity that acquires or obtains the Documentation from or through Client without the written authorization of Consultant.
INTELLECTUAL PROPERTY RIGHTS. Each party shall retain ownership of all intellectual property it had prior to commencement of the Engineering Services. Except as otherwise set forth on the scope of work, Client shall own the rights to all discoveries, improvements, and inventions conceived of or made by Consultant that are a direct result of the Engineering Services performed for Client. At Client’s request and expense, Consultant shall execute all papers and deliver to Client all data and other information, and perform other acts as Client may require, to assign and transfer all Consultant’s right, title and interest therein to Client and to enable Client to apply for, obtain, and enforce patent protection thereon. Time and expenses incurred by Consultant in connection therewith shall be paid by Client.
INDEMNITY. Consultant shall indemnify and hold harmless the Client and its officers, members, directors, partners, employees, and subconsultants against any and all claims, damages, losses and expenses to the extent they are caused by the negligence, acts, errors, or omissions of Consultant or its employees in the performance of its services under this Agreement, subject to the Risk Allocation provisions.
The Client shall indemnify and hold harmless Consultant and its officers, members, directors, partners, employees, and subconsultants from and against any and all claims, damages, losses and expenses arising out of or resulting from the performance of the services, provided that any such claims, damage, loss or expense is caused in whole or in part by the negligent act or omission and/or strict liability of the Client, anyone directly or indirectly employed by the Client (except Consultant) or anyone for whose acts any of them may be liable and provided that they are not caused by the negligent performance by Consultant of services under the agreement.
Neither party shall have any obligation to defend or pay for the defense costs of the other party unless such costs are recoverable under applicable law.
For third party claims, to the fullest extent permitted by law, the Client hereby agrees to indemnify, hold harmless and defend Consultant, including its officers, members, directors, partners, agents, employees, and subconsultants from and against all third party claims, including bodily injury, property damage, products liability, demands, damages and losses, causes of actions, judgments, fines, penalties and claims expense including attorney fees, caused or alleged to have been caused by anything other than negligent performance by Consultant of services under the agreement related to this project.
COMPLIANCE WITH LAWS. The parties agree to comply with all applicable federal, state, or local laws in connection with the Engineering Services being provided pursuant to this Agreement.
GOVERNING LAW. The relationship between Client and Consultant shall be governed by the laws of the State of Oregon, United States of America, and the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
SEVERABILITY. Any term or provision of this agreement found to be invalid under any applicable statute or rule of law shall be deemed omitted and the remainder of this agreement shall remain in full force and effect.
DISPUTE RESOLUTION. The parties agree to negotiate any claim or dispute arising out of or related to the agreement between them in good faith prior to exercising any other provision of this Agreement. If a claim or dispute between the parties cannot be settled within 30 days by good faith negotiations the parties agree to submit it to mediation in accordance with the Construction Rules of the American Arbitration Association. If the claim or dispute cannot be settled by good faith negotiations or mediation, then either party may exercise their rights under law. In no event shall a claim or dispute be made or sustained if it would be barred by the applicable statute of limitations.
CONFIDENTIAL INFORMATION. For purposes of this Agreement, Confidential Information shall include, but not be limited to, proprietary information in any format related to Client and/or Consultant’s processes, documentation, or business prospects. The obligations set forth in this section shall survive the termination or expiration of this Agreement. Each of the receiving parties acknowledges and agrees that they and their respective affiliates, subsidiaries, employees, agents and independent contractors will hold in confidence, and will not directly or indirectly at any time reveal, report, publish, disclose or transfer by any means whatsoever to any person any Confidential Information of the disclosing party without the prior written consent of the disclosing party, or use Confidential Information for any purpose except as permitted by this Agreement. The parties hereto agree to employ all necessary safeguards in order to ensure that Confidential Information is protected with at least the same degree of care a party uses to protect its own information of like nature.
EXPORT CONTROL. In the event that U.S. or local law requires export authorization for the export or re-export of any technology included or associated with the Engineering Services being provided, then no delivery can be made until such export authorization is obtained, regardless of any otherwise promised delivery date. In the event that any required export authorization is denied, Consultant will be relieved of any further obligation relative to the sale and/or delivery of the Services subject to such denial without liability of any kind relative to Client or any other party. Consultant will not comply with boycott related requests except to the extent permitted by U.S. law and then only at Consultant’s sole discretion.
CORPORATE PROTECTION. It is intended by the parties to this agreement that Consultant’s services in connection with the project(s) shall not subject Consultant’s individual owners, officers or employees to any legal exposure for the risks associated with this project. Therefore, and notwithstanding anything to the contrary contained herein, the Client agrees that as the Client’s sole and exclusive remedy, any claim, demand or suit shall be directed and/or asserted only against Consultant firm, and not against any of Consultant’s individual owners, officers or employees.
ASSIGNMENT. Client may not assign the Agreement between Consultant and Client without the prior written consent of Consultant in favor of a third party against Consultant. Consultant’s Engineering Services are being performed solely for Client’s benefit, and no party or entity shall have any claim against Consultant because of this Agreement or the performance or nonperformance of the Engineering Services.
INDEPENDENT CONTRACTORS. Each party will be and act as an independent contractor and not as an agent or partner of, or joint venture with, the other party for any purpose related to this Agreement or the transactions contemplated by this Agreement, and neither party by virtue of this Agreement will have any right, power, or authority to act or create any obligation, expressed or implied, on behalf of the other party.
ENTIRE AGREEMENT. This Agreement represents the entire and integrated Agreement between Client and Consultant and supersedes all prior negotiations, representations or agreements either written or oral. This agreement may be amended only by written instrument signed by both Client and Consultant.
Terms Applicable to Certifications
This Agreement for professional services has been entered into on the date of the letter between Precept Compliance LLC dba Pre Compliance (“Certification Body”) and the Client, to whom the letter is addressed regarding the certification by Certification Body of products manufactured, distributed, or sold by Client (collectively referred to herein as “Certified Products”). For the certification to be granted, renewed, or remain in effect, the following terms and conditions must be met. No waiver or modification of these terms and conditions shall be binding on Certification Body unless authorized in writing by Certification Body.
CERTIFICATION REQUIREMENTS. ISO/IEC 17065:2012 Sec. 4.1.2.2(a) The Client shall fulfill all certification requirements of the Certification Body’s certification standard, including implementing appropriate changes when they are communicated by the Certification Body.
ONGOING PRODUCTION. ISO/IEC 17065:2012 Sec. 4.1.2.2(b) When the certification applies to ongoing production of Certified Products, the Client shall continue to fulfill certification requirements communicated by Certification Body.
CLIENT REQUIREMENTS. ISO/IEC 17065:2012 Sec. 4.1.2.2(c,j) The Client shall make all necessary arrangements to facilitate Certification Body to evaluate of the product(s) for possible certification, and to conduct periodic surveillance, if required, of products, processes, and management systems. Client shall also make all necessary arrangements to record, report, and investigate complaints and deficiencies regarding the product certification and to provide those records to Certification Body when requested.
CLAIMS REGARDING CERTIFIED PRODUCT. ISO/IEC 17065:2012 Sec. 4.1.2.2(d,e,g,h) Client shall make no claims about the Certified Product, including in brochures and other media, that are misleading, unauthorized, or inconsistent with the scope of the certification, nor shall client use the certification in such a manner as that would bring Certification Body into disrepute. Certification documents provided to others shall be provided in their entirety.
SUSPENSION, WITHDRAWAL, OR TERMINATION. ISO/IEC 17065:2012 Sec. 4.1.2.2(f) When notified by Certification Body that the certification has been suspended, withdrawn, or terminated, Client shall discontinue use of all advertising matter that contains reference to the certification.
MARKS OF CONFORMITY. ISO/IEC 17065:2012 Sec. 4.1.2.2(b) Marks of conformity referencing the Certification Body or the certification shall bear accurate information and only be applied to Certified Product.
CHANGES AFFECTING CERTIFICATION. ISO/IEC 17065:2012 Sec. 4.1.2.2(k) When changes to products, manufacturing process, or management system occur, Client shall notify Certification Body without delay and shall not sell any certified product until changes are approved by the Certification Body.