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<br />3.5 Samples remaining after tests are
<br />conducted and field and laboratory equipment
<br />that cannot be adequately cleansed of
<br />contaminants lire and continue to be your
<br />property. They will be discarded or retumed to
<br />you, at our discretion, unless within 15 days of
<br />the report date you give us written direction to
<br />store or transfer the matelials at your expense.
<br />
<br />Section 4: Compensation
<br />
<br />4.1 You will pay for services as agreed
<br />upon or according to our then current Schedule of
<br />Charges if there is no other written agreement as
<br />to price. An estimated cost is not a firm figure.
<br />You agree to pay all sales taxes and other taxes
<br />based on your payment of our compensation. Our
<br />performance is subject to credit approval and
<br />payment of any specified retainer.
<br />
<br />4.2 You will notify us of billing disputes
<br />within 15 days. You will pay undisputed
<br />portions of invoices on receipt. You agree to pay
<br />interest on unpaid balances beginning 30 days
<br />after invoice dates at the rate of 1.5% per month,
<br />or at the maximum rate allowed by law.
<br />
<br />4.3 If you direct us to invoice another, we
<br />will do so. but you agree to be responsible for our
<br />compensation unless you provide us with that
<br />person's written aL"Ceptance of all terms of our
<br />Agreement and we agree to extend credit to that
<br />person and to release you.
<br />
<br />4.4 You agree to compensate us in
<br />accordance with our fee schedule if we are asked
<br />or required to respond to legal process arising
<br />out of a proceeding related to the projcct and as
<br />to which we are not a party.
<br />
<br />4.5 [fwe are delayed by factors beyond
<br />our control, or if project conditions or the scope
<br />or amount of work change. or if changed labor
<br />union conditions result in increased costs.
<br />decreased efficiency, or delays, or if the
<br />standards or methods change, we will give you
<br />timely notice and we will receive an equitable
<br />adjustment of our compensation. [f you and we
<br />do not reach agreement on such compensation
<br />within 30 days of our written application, we
<br />may terminate without liability to you or others.
<br />
<br />4.6 If you fail to pay us within 60 days
<br />following invoice date, we may consider the
<br />default a total breach of our Agreement and, at
<br />our option. terminate our duties without liability
<br />to you or to others.
<br />
<br />4.7 In consideration of our providing
<br />insurance to cover claims made by you, you
<br />hereby waive any right of offset as to fees
<br />otherwise due us.
<br />
<br />Section 5:
<br />
<br />Disputes, Damage, and
<br />Ri~k Allocation
<br />
<br />5.1 Each of us will exercise good faith
<br />efforts to resolve disputes without litigation.
<br />Such etTorts will include. but not be limited to, a
<br />meeting(s) attended by each party's
<br />representative(s) empowered to resolve the
<br />dispute. Before either of us commences an action
<br />against the other, disputes (except collections)
<br />will be submitted to mediation.
<br />
<br />5.2 Neither of us will be liable for special,
<br />incidental, consequential, or punitive damages,
<br />including but not limited to those arising from
<br />delay. loss of use, loss of profits or revenue, loss
<br />of fmancing commitments or fees, or the cost of
<br />capital.
<br />
<br />5.3 We will not be liable for damages
<br />unless suit is conunenced within two years of the
<br />date of injury or loss or within two years of the
<br />date of the completion of our services,
<br />whichever is earlier. We wiD not be liable unless
<br />you have notified us of the discovery oftbe
<br />claimed breach of contract. negligent act, or
<br />omission within 30 days of the date of discovery
<br />and unless you have given us an opportunity to
<br />investigate and to recommend ways of
<br />mitigating damages.
<br />
<br />5.4 For you to obtain the benefit of a fee
<br />which includes a reasonable allowance for risks,
<br />you agree that our aggregate liability will not
<br />exceed the fee paid for our services or $50,000,
<br />whichever is greater. and you agree to indemnifY
<br />us from all liability to others in excess of that
<br />amount. If you are unwilling to accept this
<br />allocation of risk, we will increase our aggregate
<br />liability to $100,000 provided that, within 10
<br />days of tbe date of our Agreement, you provide
<br />payment in an amount that will increase our fees
<br />by 1(J%, but not less than $500. to compensate
<br />us for the greater risk undertaken. This increased
<br />fee is not the purchase of insurance.
<br />
<br />5.5 If you do not pay us within 60 days of
<br />invoice date, or if you make a claim against us
<br />that is resolved in our favor, you agree to
<br />reimburse our expenses, including but not lirnited
<br />to attorney fees, staff time, expert witness fees,
<br />and other costs of collection or litigation.
<br />
<br />5.6 The law of the state in which our
<br />servicing office is located will govern all
<br />disputes. Each ofus waives trial by jury. No
<br />employee acting within the scope of employment
<br />sball have individual liability for his or her acts
<br />or omissions, and you agree not make a claim
<br />against individual empl~yees.
<br />
<br />Section 6:
<br />
<br />General Indenmification
<br />
<br />6.1 We will indemnify and hold you
<br />hannless from and against demands, damages.
<br />and expenses to the comparative extent they are
<br />caused by our negligent acts or omissions or
<br />those negligent acts or omissions of persons for
<br />whom we a.re legally responsible. You will
<br />indemnify and hold us harmless from and
<br />against demands, damages, and expenses to the
<br />comparative extent they are caused by your
<br />negligent acts or omissions or those negligent
<br />acts or omissions of persons for whom you are
<br />legaUy responsible.
<br />
<br />6.2 To the extent it may be necessary to
<br />indemnify either of us under Section 6.1, you
<br />and we expressly waive, in favor of the other
<br />only, any immunity or exemption from liability
<br />that exists under any worker compensation law.
<br />
<br />6.3 You agree to indemnify us against
<br />losses and costs arising out of claims of patent or
<br />copyright infringement as to any process or
<br />system that is specified or selected by you or by
<br />others on your behalf.
<br />
<br />Section 7:
<br />
<br />Miscellaneous Provisioll'l
<br />
<br />7.1 We will provide a certificate of
<br />insurance to you upon request. Any claim as an
<br />Additional Insured shall be limited to losses
<br />caused by our sole negligence.
<br />
<br />7.2 This Agreement is our entire
<br />agreement. It supersedes prior agreements. [t
<br />may be modified only in a writing, making
<br />specific reference to the provision modified.
<br />
<br />7.3 Neither of us will assign or transfer
<br />any interest, any claim. any cause of action, or
<br />any right against the other. Neither of us will
<br />assign or otherwise transfer or encumber any
<br />proceeds or expected proceeds or compensation
<br />from the project or project claims to any third
<br />person, whether directly or as collateral or
<br />otherwise.
<br />
<br />7.4 Our Agreement may be tenninated
<br />early only in writing. We will receive an
<br />equitable adjustment of our compensation in the
<br />event of early tennination.
<br />
<br />Revised 6-15-06
<br />
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