1. SCOPE OF AGREEMENT.
1.1 Agreement. The terms and conditions set forth in this document (the “Terms and Conditions”) evidence the parties’ agreement with respect to the provision of services (the “Services”) to be supplied by Paul James Olszewski, P.L.S., PLLC or PJO3DSCAN, LLC (each shall hereinafter be referred to as the “Company”), as those Services are described in that certain Term Sheet (“Term Sheet”), entered into between the Company and Client (as the Client is identified in the Term Sheet). The Company will provide the Services to Client in accordance with the Term Sheet and these Terms and Conditions.
1.2 Extension of Terms and Conditions. These Terms and Conditions govern any Services provided by the Company to Client, and shall govern any and all future agreements or arrangements between Client and the Company. Any all documents or agreements, including the Term Sheet, that reference these Terms and Conditions, shall incorporate by reference these Terms and Conditions.
2. PRICE AND PAYMENT.
2.1 Price. Client will pay the Company for the Services as specified in the Term Sheet. Prices for the Services are firm unless otherwise specified.
2.2 Payment Terms. The Company will submit a final invoice when the Services are complete, and payment of invoices are due within seven (7) days of receipt. All unpaid balances outstanding over thirty (30) days will incur an interest charge of 1.5% per month or the maximum permissible under state law. In the event the Company is required to pursue payment through retainment of counsel or a collection service, reasonable costs of collection will be incurred by and be the responsibility of the Client. If within the scope of the Services, Client shall also pay the Company for the costs of any inspection fees, zoning and annexation application fees, assessment fees, engineering fees, soil testing fees, photogrammetry fees, permit fees, bond premiums, blueprints and reproductions thereof, and any and all other similar fees and charges.
3. REPRESENTATIONS AND
WARRANTIES OF CLIENT.
3.1 Authority. Client represents, warrants, and covenants to the Company as follows: (a) Client has the right, power and authority to execute and deliver these Terms and Conditions, the Term Sheet, and any other documents or agreements related to or in connection with the Services and to engage the Company to perform the Services at the location specified in the Term Sheet (the “Property”); and (b) the execution and delivery of the Term Sheet and these Terms and Conditions will not (i) violate or conflict with any provision of law, statute, rule or regulation to which Client is subject, or (ii) violate or conflict with any order, judgment or decree, or ruling of any governmental authority applicable to Client.
3.1 Ownership. Client represents and warrants that it is the fee owner of the Property or has the right of access to the Property where the Services are being performed.
3.2 Other Parties. Should Client retain the services of a contractor(s), subcontractor(s), or consultant(s) (“Other Parties”) other than the Company to conduct work on the Property, the Company is not responsible in any way whatsoever for the supervision or direction of the work of Other Parties, their employees or agents. The Company does not have a right or a duty to stop the work of Other Parties performing services at the Property nor shall the presence of the Company’s field personnel relieve Other Parties of their responsibility to perform their respective obligations.
4. ACCESS TO PROPERTY.
4.1 Right of Entry. Client, at its sole cost and expense, shall furnish the Company, its agents, employees, and subcontractors a right-of-entry and any other authorizations or permissions from third parties, or licenses needed for the Company to enter the Property to perform the Services contemplated by the Term Sheet and these Terms and Conditions. Client agrees and acknowledges that the Services provided by the Company may require certain activities that may disrupt the use of the Property and may disturb, alter, or damage the terrain and vegetation thereabout and that the Company will not restore the Property to its original state. Client represents and warrants that the Company has absolute authority and permission to conduct its Services on the Property, and the Company does not need permission from anyone other than Client to perform the Services on the Property. The Company will not be liable for any loss or damage that occurs on the Property.
4.2 Special Information. Client shall furnish available property, boundary, easement, right-of-way, topographic and utility surveys; plans and specifications; and special data and conditions relevant to the Services to be provided by the Company. Client shall furnish other special investigations of the Property site as requested by the Company and as reasonably necessary for the Services. The Company shall exercise reasonable care in relying upon this information in the performance of its Services.
5.1 Client shall maintain policies of comprehensive general liability insurance and property insurance in the minimum amounts of $1,000,000.00 single limit and $2,000,000.00 aggregate. Client shall, at the Company’s request, provide the Company with a certificate of insurance or other satisfactory evidence that such insurance has been obtained and that such policies are maintained in force throughout the period in which the Company provides Services to the Client under the Term Sheet and these Terms and Conditions.
6. INTELLECTUAL PROPERTY.
6.1 Retained Intellectual Property. The Company shall retain all of its right, title and interest in and to its Retained Intellectual Property. “Retained Intellectual Property” consists of the Company’s concepts, data, designs, developments, documentation, drawings, hardware, improvements, information, inventions, processes, software, techniques, technology, tools, and any other intellectual property, and any third party licenses or other rights to use any of the foregoing, that were used in connection with the Services provided to Client.
6.2 Work Product. If the Company delivers or is required to deliver, or otherwise produces, creates or develops, any work product in connection with the Services, including concepts, data, designs, maps, photographs, scans developments, documentation, drawings, hardware, improvements, information, inventions, processes, software, techniques, technology, tools or any other intellectual property (whether produced, created or developed by the Company or any of its personnel, either alone or with others, and whether completed or in-progress) (collectively, “Work Product”), the Company shall own all right, title and interest in and to such Work Product. The Work Product shall not be deemed a “work made for hire” for copyright purposes. To the extent any portion of the Work Product qualifies as work made for hire under applicable law, Client hereby irrevocably assigns to the Company, its successors and assigns, all right, title and interest in and to the Work Product.
6.3 License to Client. Provided that Client is in full compliance with the Term Sheet and these Terms and Conditions, the Company shall grant to Client a non-exclusive license in the Work Product resulting from the Services (the “License”). Client may use the License for reasonable commercial purposes only, as contemplated in the Term Sheet. Client is prohibited from, in any way, selling, reproducing, displaying, distributing, adapting, or modifying the Work Product, without the prior written consent of the Company, which consent may be conditioned or withheld in the Company’s sole discretion.
6.4 Privacy. Unless otherwise provided in the Term Sheet, Client represents, covenants, and warrants that it will not disseminate, disclose, or share with the public, and will not provide public use or access, to any of the Work Product created by the Company without the prior written consent of the Company, which consent may be conditioned or withheld in the Company’s sole discretion. Client represents, covenants, and warrants that it will not misuse the Work Product or any other information provided by the Company.
7.1. Defense Against Claims. Client shall, to the fullest extent permitted by law, defend, indemnify, and hold harmless the Company, its officers, members, directors, employees, agents, successors, or assigns, (collectively, “Indemnified Parties”) from and against any and all liability, claims, suits, losses, damages, costs, demands or allegations (including reasonable attorneys’ fees connected therewith) that directly or indirectly arise out of or relate to:
(a) Client’s breach of any of its warranties, representations, or any other obligation contained in these Terms and Conditions;
(b) any act or omission by Client or Client’s officers, directors, employees, agents, personnel, or Other Parties, including the negligent acts or omissions, willful misconduct, or strict liability thereof;
(c) Client’s use or misuse of the Work Product, any infringement or misappropriation of any Work Product resulting from any Services and/or other materials provided by or on behalf of the Company, or any claims arising from or related to claims that the Work Product infringed on the patent, copyright, trademark or other intellectual property rights of any third party; or
(d) any personal or bodily injury (including death) or damage to property, or any claims relating to violation of privacy, caused by any of the Services provided by the Company or by any act or omission of Client or its personnel in connection with the Company’s provision of the Services.
Section 7(a)-(d) are hereinafter referred to individually, as a “Claim”, and collectively, the “Claims”.
7.2 Indemnification. Client will indemnify and hold harmless each Indemnified Party against any damages, liabilities, assessments, losses, costs, and other expenses (including attorneys’ fees and legal expenses) incurred by that Indemnified Party relating to any Claim.
7.3 Process. The Company will give Client reasonable notice of each Claim for which it wants indemnity, provided that failure to provide such notice will not release Client from any obligations hereunder except to the extent that Client is materially prejudiced by such failure. The Company will also give Client its reasonable cooperation in the defense of each Claim, at Client’s expense. Client will use counsel reasonably satisfactory to the Company to defend each Claim. An Indemnified Party may participate in the defense at its own expense. If at any time the Company reasonably determines that any Claim might adversely affect any Indemnified Party, then, without limiting Client’s indemnification obligations, the Company may take control of the defense of the Claim, and in such event the Company and its counsel will proceed diligently and in good faith with that
defense. Client will not settle any Claim without the
Indemnified Parties’ prior written consent, which may not be unreasonably withheld. Client will see that any settlement it makes of any Claim is made confidential, except where not permitted by law. Client’s duty to defend is independent of its duty to indemnify.
8. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, THE SERVICES AND ANY WORK PRODUCT PRODUCED FROM THE SERVICES ARE PROVIDED “AS IS” AND THE COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES AND WORK PRODUCT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE SERVICES AND/OR WORK PRODUCT WILL MEET THE CLIENT’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER MATERIALS, APPLICATIONS, SYSTEMS OR SERVICES (EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE.
9. LIMITATION ON LIABILITY. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, OR THE TERM SHEET, NOR SHALL THE COMPANY’S LIABILITY IN ANY EVENT EXCEED THE AMOUNTS PAID TO IT BY CLIENT DURING THE THREE (3) MONTH PERIOD PRIOR TO THE DATE OF ANY OCCURRENCE GIVING RISE TO ANY DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
10. INDEPENDENT CONTRACTOR.
10.1 Relationship. The Company will perform under the Term Sheet and these Terms and Conditions as an independent contractor of Client, and neither the Term Sheet nor these Terms and Conditions will be construed to create a partnership, joint venture, agency, employment, or any other relationship between Client and the Company. The Company will not represent itself to be an employee, representative or agent of Client. The Company will have no authority to enter into any agreement on Client’s behalf or in Client’s name or otherwise bind Client to any agreement or obligation.
11.1 Termination for Convenience. Upon ten (10) days prior written notice, the Company may terminate the performance of any further Services set forth in this the Term Sheet or Terms and Conditions for convenience. Upon the effective date of such termination notice, the Company shall cease work on all Services set forth in the Term Sheet. Within five (5) days of such termination, Client shall pay the Company in full for all Services (and reimbursable expenses) performed prior to termination at which time the Company shall deliver any completed Work Product to the Client.
12. ADDITIONAL PROVISIONS.
12.1 Notices. Notices under these Terms and Conditions are sufficient if given by nationally recognized overnight courier service, certified mail (return receipt requested), facsimile with electronic confirmation, or personal delivery to the other party at the address provided in the Term Sheet. If no address is listed for Client, notice to Client will be effective if given to the last known address. Notice is effective: (a) when delivered personally, (b) three business days after sending by certified mail, (c) on the business day after sending by a nationally recognized courier service, or (d) on the business day after sending by facsimile with electronic confirmation to the sender.
12.2 Cumulative Rights. The rights and remedies of the parties under these Terms and Conditions are cumulative, and either party may enforce any of its rights or remedies available to it at law or in equity.
12.3 Assignment. Neither party can assign any part or all of the Term Sheet or the Terms and Conditions without the other party’s prior written consent. Any attempt by a party to assign in violation of this Section is void in each instance. All the terms and conditions of these Terms and Conditions will be binding upon, will inure to the benefit of, and will be enforceable by the parties and their respective successors and permitted assigns.
12.4 Waivers and Remedies. No waiver of any breach of any provision of the Term Sheet or the Terms and Conditions will constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party. The failure of either party to enforce any provision of the Term Sheet or the Terms and Conditions will not constitute a waiver of the party’s rights to subsequently enforce the provision.
12.5 Severability. If any provision of these Terms and Conditions or the application thereof to any person, entity, or circumstance will at any time or to any extent be determined to be invalid or unenforceable under any provision of applicable law, to the full extent the applicable law may be waived, it is hereby waived. To the extent such law cannot be waived, the invalid or unenforceable provision will be replaced by a valid provision which comes closest to the intentions of the parties to these Terms and Conditions. In case such replacement provision cannot be agreed upon, the invalidity of the provision in question will not affect the validity of any other provision or these Terms and Conditions as a whole, unless the invalid provision is of such essential importance that it can be reasonably shown that the parties would not have entered into this Agreement without the invalid provision.
12.6 Unforeseen Conditions or Occurrences. If, during the course of performance of Services pursuant to the Term Sheet or these Terms and Conditions, any unforeseen hazardous substance, material, object, element, or other unforeseen conditions or occurrences are encountered which, in the Company’s judgment, materially affects or may affect the Services to be provided hereunder, the risk involved in providing the Services, or the scope of the Services, the Company will notify Client. Subsequent to that notification, the Company may: (a) if practicable, in the Company’s judgment and with Client’s approval, complete the original scope of Services in accordance with the Term Sheet and these Terms and Conditions; (b) agree with Client to modify the scope of Services and the estimate of costs to include the previously unforeseen conditions or occurrences, such revision to be in writing and signed by the parties and incorporated herein; or (c) terminate the Services effective on the date of notification for convenience.
12.7 Force Majeure. Neither party shall be deemed in default of the Term Sheet or these Terms and Conditions to the extent that any delay or failure in the performance of an obligation, other than the payment of money, results from any causes beyond its reasonable control and without its fault or negligence. For this purpose, such acts or events shall include, without limitation, storms, floods, unusually severe weather, acts of God, epidemics, protest demonstrations, war, terrorism or terrorist acts, riot, strikes, lockouts or other industrial disturbances or unanticipated site conditions. In the event that such acts or events do occur, both parties shall attempt to overcome all difficulties arising and to resume as soon as reasonably possible the normal pursuit and schedule of the Services set forth in the Term Sheet or these Terms and Conditions. The time for performance of Services and the Estimated Completion Date (as defined in the Term Sheet) shall be extended for a period equal to the delay thereof caused by any such act or event that comes within this Subsection.
12.8 Governing Law; Venue; Jurisdiction. The Term Sheet and these Terms and Conditions are governed by the substantive Laws of the state of New York, excluding its conflicts of law provisions. Any dispute arising under, in connection with, or incident to the Term Sheet or these Terms and Conditions or about its interpretation will be resolved exclusively in the state or federal courts located in Onondaga County, New York. Client irrevocably submits to those courts’ venue and jurisdiction. Client waives all defenses of lack of personal jurisdiction and forum non-conveniens. A final judgment in any such suit or action may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.