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ENVIRONMENTAL / GEOTECHNICAL SERVICE AGREEMENT - TERMS AND CONDITIONS Page 3 of 4
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<br />ACS417EG (01/21) AMERICAN ENGINEERING TESTING, INC.
<br />11.3 – AET reserves the right to pursue any unpaid invoice utilizing available remedies at law. AET explicitly reserves its Mechanic Lien or Bond
<br />Claim rights for nonpayment of an undisputed invoice. Client is responsible for paying AET expenses and attorney fees related to collection of
<br />past due invoices.
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<br />SECTION 12 - CHANGE ORDERS
<br />AET's proposal associated with this project provides an estimated cost for the work. If the proposal amount is a time and material estimate, or if
<br />changes occur affecting the project scope, estimated quantities, project schedule or other unforeseen conditi ons, AET will communicate with
<br />Client if AET’s fees are approaching the proposal amount and request a change order. However, nothing in this agreement shall be construed in
<br />any way as a waiver of payment by Client to AET for Services authorized under this agreement. Approval of a change order may be in writing or
<br />by electronic communication.
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<br />SECTION 13 - MEDIATION
<br />13.1 - Except for enforcement of AET’s rights to payment for Services rendered or to assert and/or enforce its lien rights, includin g without
<br />limitation assertion and enforcement of mechanic’s lien rights and foreclosure of the same, Client and AET agree that any claim, dispute or other
<br />matter in question arising out of or related to this Agreement shall be subject to mediation as a condition pr ecedent to arbitration or the
<br />institution of legal or equitable proceedings by either party; provided however that if either party fails to respond to a re quest for mediation
<br />within sixty (60) days, the party requesting mediation may without further notice, proceed to arbitration or the institution of legal or equitable
<br />proceedings.
<br />13.2 - Mediation shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association. Request for
<br />mediation shall be in writing and the parties shall share the mediator’s fee and any filing fees equally and each party shall pay their own legal
<br />fees. The mediator shall be acceptable to both parties and shall have experience in commercial construction matters.
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<br />SECTION 14 - LITIGATION REIMBURSEMENT
<br />Except for matters relating to non-payment of fees, which is governed by Section 11 hereof, payment of attorney’s fees and costs associated with
<br />lawsuits or arbitration of disputes between AET and Client, which are dismissed or are judged substantially in either party's favor, shall be paid
<br />by the non-prevailing party. Applicable costs include, but are not limited to, attorney and expert witness fees, court costs, and AET costs.
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<br />SECTION 15 - MUTUAL INDEMNIFICATION
<br />15.1 - Subject to the limitations contained in Sections 15 and 18, AET agrees to indemnify Client from and against damages and costs to the extent
<br />caused by AET's intentional acts or negligent performance of the Services.
<br />15.2 - Client agrees to indemnify AET from and against damages and costs to the extent caused by the intentional acts or negligence of the Client,
<br />Owner, Client's contractors and subcontractors or other third parties.
<br />15.3 - If Client has an indemnity agreement with other persons or entities relating to the project for which AET’s Services are performed, the
<br />Client shall include AET as an additional insured.
<br />15.4 - AET's indemnification to the Client, including any indemnity required or implied by law, is limited solely to losses or damages caused by its
<br />failure to meet the standard of care and only to the extent of its negligence.
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<br />SECTION 16 - NON-SOLICITATION
<br />Each party to this Agreement (a “Party”) agrees that it will not encourage, induce, or actively solicit any employee of the other party to leave
<br />their employment for any reason, provided that neither Party is precluded from (a) hiring any such employee who has been terminated by a Party
<br />or its subsidiaries prior to commencement of employment discussions between a Party and such employee, or (b) soliciting any such employee
<br />by means of a general advertisement or through an employment agency that does not specifically pursue the employee, or (c) hiring employees
<br />or former employees of the other Party who contact the Party on its own accord. This Non-Solicitation provision shall be effective and enforceable
<br />for six (6) months following termination of this Agreement.
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<br />SECTION 17 - MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES
<br />Except as specifically set forth herein and to the extent permitted by applicable law, Client and AET waive against each other, and each other’s officers,
<br />directors, members, subcontractor, agents, assigns, successors, partners, and employees any and all claims for or entitlement to special, incidental,
<br />indirect, punitive, or consequential damages arising out of, resulting from, or in any way related to the Services provided by AET under this Agreement.
<br />This mutual waiver of consequential damages includes, but is not limited to, the following: loss of profits; loss of revenue; rental costs/expenses
<br />incurred; loss of income; loss of use of property, equipment, materials or services; loss of opportunity; loss of rent; loss of good will; loss of financing;
<br />loss of credit; diminution of value; loss of business and reputation; loss of management or employee productivity or the services of such persons;
<br />increased financing costs; cost of substitute facilities; cost of substitute goods/property/equipment; cost of substitute services; and/or cost of capital.
<br />This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination of this Agreement in accordance
<br />with the provisions of the Agreement and related documents and shall survive any such termination.
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<br />SECTION 18 - LIMITATION OF LIABILITY
<br />To the fullest extent permitted by applicable law, the total aggregate liability of AET and its officers, directors, partners, employees,
<br />subcontractors, agents, and sub-consultants, to Client and/or Client’s employees, officers, directors, members, agents, assigns, successors, or
<br />partners, or anyone claiming through Client, for any and all injuries, damages, claims, losses, or expenses (including attorney’s fees and costs)
<br />arising out of, resulting from or in any way related to Services provided by AET from any cause or causes, including, but not limited to, its
<br />negligence, professional errors and omissions, strict liability, breach of contract, or breach of warranty , shall not exceed the total compensation
<br />in excess of costs received by AET for Services or $50,000, whichever is greater. The limitation of liability set forth herein does not apply to claims
<br />arising solely out of or related to the willful or intentional acts of AET.
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