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Terms and Conditions

Agreement

A. ENTIRE AGREEMENT. These Terms and Conditions, in combination with those documents incorporating them by reference, constitute the entire agreement (the “Agreement”) to perform the described services (the “Services) between Partner as defined in the Proposal (“Partner”) and the client as defined in the Proposal (“Client”), and shall be deemed a part of such Agreement as though set forth in full therein. This Agreement supersedes all prior proposals or negotiations between the parties with respect to the subject Services. These terms and conditions will also apply to any contract, change order, or purchase order document issued by the Client for future services, whether or not it is expressly incorporated by reference herein. In the event of any conflict between these terms and conditions and the provisions of any purchase order or other document, these terms and conditions shall control unless the conflicting document expressly supersedes specific provisions hereof. This Agreement may not be modified except in a writing executed by both parties.

B. SERVICES. The Services will be performed in material compliance with the provisions of the Agreement. Client has reviewed the Agreement in detail and agrees that the Services are appropriate to meet Client’s needs. Unless specified elsewhere in the Agreement, Partner shall furnish all technical and professional services, including labor, material, supplies, equipment, transportation, accommodation, subsistence and supervision of Partner’s personnel, to perform the Services. Client acknowledges that Partner may utilize third-party service providers in the performance of its obligations hereunder. Partner shall at all times be an independent contractor and no persons involved in connection herewith shall be considered employees of the Client for any purpose.

C. FEES, INVOICING AND PAYMENT. Charges for all services shall be invoiced and paid in accordance with the Lump Sum Price or the Fee Schedule contained in the Agreement. Unless otherwise specified, invoices will be submitted to Client at time of report delivery. Payment is due upon receipt of the invoice and Client agrees that payments shall be made within thirty (30) days of the invoice date. Payment of Partner’s invoices shall be the primary, absolute and non-contingent obligation of the Client, and shall not be conditioned upon the closing of a loan, transaction, or any other event. Should cancellation of the project occur after a verbal report of the findings has been provided, Client agrees to make a payment of 80% of the total cost due at the time of cancellation. Amounts not paid within thirty (30) days shall be subject to a late payment charge equal to the lesser of one and one-half percent (1½%) per month or the maximum amount allowed by applicable law. Should any invoice be in dispute, only that portion of the invoice in dispute may be held in abeyance until the dispute is resolved. Partner may suspend or terminate further performance under this or other agreements with Client upon reasonable notice for the non-payment of invoices. Partner shall have no responsibility or liability in connection with the Services, and Client shall have no right to rely on any report or other materials delivered, until all invoices have been paid in full. Partner shall be entitled to all legal fees, including but not limited to attorney’s fees associated with any attempt to collect on unpaid invoices associated with the Services.

D. CONFIDENTIALITY. Information which the Client identifies as confidential upon provision to Partner, and which is not publicly available or is identified by Client as proprietary, will be treated as confidential in accordance with industry customs or standards. However, Partner shall have no liability to Client or any third party for disclosure of confidential information in notifications or reports which reveal potential issues related to the health, safety or welfare of the general public; subject to court order or other mandate; and/or further subject to public policy considerations. Partner shall have no liability to Client or any third party for notifications or reports made in accordance with such laws or orders and Client shall defend, indemnify and hold harmless Partner from and against any and all claims, demands, liabilities, costs and expenses, including reasonable attorney’s fees, incurred by Partner in connection with such notifications or reports. Should a Partner employee be identified as a witness in a litigation, dispute, or other legal proceeding relating to the Services, then Client agrees to pay the regular hourly rate for the cost of time expended in connection therewith, including but not limited to time spent responding to document subpoenas, testifying at trial or deposition, preparation time, and travel time, as well as all costs and expenses incurred.

E. LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, ANY LOSS OF INCOME, PROFITS OR DATA OR DIMINUTION OF VALUE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF, OR HAD REASON TO KNOW OF, THE POSSIBILITY OF SUCH DAMAGES. CLIENT AND PARTNER AGREE THAT PARTNER’S AGGREGATE LIABILITY TO THE CLIENT AND ALL THIRD PARTIES IN CONNECTION WITH THE SERVICES SHALL BE LIMITED TO GENERAL MONEY DAMAGES NOT TO EXCEED TWENTY THOUSAND DOLLARS ($20,000.00). THIS LIMITATION SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION OR LEGAL THEORY PLED OR ASSERTED. THE PARTIES ACKNOWLEDGE THAT THEY HAVE CONSIDERED THE ALLOCATION OF RISK PRESENTED BY THE PROVISIONS OF THIS PARAGRAPH AND THAT THE ALLOCATION IS REASONABLE UNDER ALL FACTS AND CIRCUMSTANCES SURROUNDING THE AGREEMENT.

F. WARRANTY. Partner warrants that the Services will be performed in a good and workmanlike manner in accordance with prevailing standards and practices applicable to the Services. PARTNER EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

G. SAMPLING. Should collection of samples be required as part of the Services, Client recognizes and agrees that Partner is acting as a bailee and at no time assumes title to samples collected in completion of the Services. Client acknowledges that the act of sampling may affect, alter or damage the property, terrain, vegetation, and/or building, structures and improvements at, in or upon the site and Client accepts such risk. Partner will exercise reasonable efforts to limit such alteration or damage. Unless otherwise specifically agreed, Partner will not be responsible for the cost of any required repair or restoration. Partner may discard any and all samples immediately following analysis. Client may request, in writing, that any such samples be retained beyond such date, and in such case, Partner will ship such samples to the location designated by Client, at Client’s expense. Partner may, upon Client’s written request, arrange for storage of samples at mutually agreed storage charges. This is the only notice of intention to discard samples that will be given.

H. INFORMATION PROVIDED TO PARTNER. Client shall provide Partner with such materials with respect to the assignment as are requested by Partner and in the possession or under the control of Client. Client shall provide Partner with sufficient access to the Property, and hereby grants permission for entry unless discussed in advance to the contrary. Partner shall have no liability with respect to any loss, damage, claim or expense incurred by or asserted against Client arising out of, based upon or resulting from Client’s failure to provide accurate or complete information or documentation pertaining to an assignment ordered or in connection with this Agreement, including Client’s failure, or the failure of any of Client’s agents, to provide a complete copy of the Report to any third party.

I. RELIANCE. No party shall be allowed to use or rely on any report(s) or information generated in the completion of the Services until payment in full is made to Partner for any outstanding invoices related to the Services rendered. Client understands that Services governed by this Agreement are strictly for its sole use and benefit. Use of the report for any other purpose or use by any party not identified as an intended user of the report and without Partner’s prior written consent is prohibited and Partner accepts no responsibility or liability for any use of the report in violation of the terms of this Agreement The parties expressly agree that no third party, including, but not limited to, any heirs, devisees, representatives, successors, assigns, affiliates, and subsidiaries of the parties or any partnership, corporation or other entity controlled by the parties or which control the parties, may rely on or raise any claim relating to the Services or this Agreement. Neither the whole report, nor any part, nor reference thereto, may be referenced or published in any manner without Partner’s prior written approval. Appraisal services shall be subject to additional reliance terms as set forth in Paragraphs C and R of the Addendum attached hereto and incorporated by reference.

J. INDEMNIFICATION. In the event that Client permits a third-party to rely upon this Agreement, the Services, and/or reports provided by Partner in breach of Paragraph I of this Agreement and said third-party files a claim or lawsuit against Partner relating to this Agreement, the Services, and/or reports provided by Partner, Client agrees to indemnify and hold Partner harmless from any damages, losses, liabilities, and costs, including, but not limited to, reasonable attorney fees, costs, and expert witness fees, arising from any such third-party claim or lawsuit.

K. NON-SOLICITATION. Client shall not hire nor solicit for employment any of Partner’s employees for a period of one (1) year subsequent to any services rendered by Partner for Client. In the event that Client hires one of Partner’s employees fewer than twelve (12) months after services rendered by Partner to Client, then Client agrees to pay Partner a referral fee equivalent to twenty-five percent (25%) of the employee’s previous annual compensation and all costs related to training and/or licensure expended by Partner during the previous year.

L. TERMINATION. This Agreement may only be terminated: (i) by either Partner or Client prior to substantial completion of the Services by giving thirty (30) days written notice; or (ii) by Partner at any time for cause, including but not limited to, Client’s breach of this Agreement, failure to pay Partner’s invoices, or on the occurrence of fraud or willful misconduct of Client, its employees or agents, and such termination shall be effective immediately upon written notice to Client . In the event of termination prior to completion of the Services (i) by Partner or Client for any reason, or (ii) by Partner for cause, Partner reserves the right to complete such analyses and records as are necessary to place its files in order and, where considered by Partner as necessary to protect its professional reputation, to complete a report on Services performed to date. Partner shall have the right to receive a reasonable termination charge to cover such costs and to be compensated for all Services performed prior to and in connection with such termination. In the event of termination, client shall have no rights of use or reliance upon the work. Paragraphs A, C, D, E, F, G, I, J, K, L, M, N, O, P, Q, R and S shall survive termination.

M. RESOLUTION OF DISPUTES. This Agreement shall be governed by, subject to, and construed in accordance with the laws of the state of California, without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. With the exception of disputes arising from failure to pay any invoices or fees for services rendered, any claim, controversy, or action arising out of, or related to, this Agreement or the alleged breach thereof, shall be submitted to mandatory non-binding mediation through a third-party mediator to be agreed upon by the Partner and the moving party. A “Notice of Mediation” shall be served by any party to commence the mediation process. The service of the Notice of Mediation shall stay the running of the limitations period set forth in Paragraph M herein for a period of 60 days unless a longer or shorter period of time is agreed to by the parties. In the event that the parties cannot reach a resolution through mediation, the parties may proceed to litigate their claims in Court. Any litigation so instituted shall be filed and litigated in the State Court of California, County of Los Angeles in accordance with the laws of the State of California, and subject to Paragraph L herein. With the exception of disputes arising from failure to pay invoices or fees for services rendered, each party shall pay the fees of its own attorneys, and the expenses of its witnesses and all other expenses connected with the presentation of its case.

N. LIMITATIONS PERIOD. Partner and Client agree that, other than an action filed by Partner for nonpayment of invoices under Section C, above, any legal action or lawsuit by one party against the other party or its affiliates, officers, directors, employees, contractors, agents, successors, assigns, or other representatives, whether based in contract, warranty, indemnity, negligence, strict liability or other tort or otherwise, relating to (a) this Agreement or the Report, (b) any Services performed under this Agreement or (c) any acts or conduct relating to such Services, shall be filed within eighteen (18) months from the date of delivery to Client of the Report to which the claims or causes of action in the legal action or lawsuit relate. The time period stated in this section shall not be extended by any incapacity of a party or any delay in the discovery of the underlying claims, causes of action or damages.

O. CORPORATE PROTECTION. It is intended by the parties to this Agreement that Partner’s services in connection with the project shall not subject Partner’s employees, officers, or directors to any personal legal exposure for risks associated with this project. Therefore, the Client agrees that as Client’s sole and exclusive remedy, any claim, demand, or action shall be directed and/or asserted only against Partner, a California corporation, and not against any of Partner’s employees, officers, or directors.

P. NO WAIVER. The failure of either party to exercise any right or remedy hereunder or to take any action permitted on a breach by the other party shall not be deemed a waiver of such right or remedy or of any other rights or subsequent breach of a like or different nature.

Q. SEVERABILITY. The provisions of this Agreement are severable. The invalidity of any part of this Agreement shall not invalidate the remainder of the Agreement or the remainder of any portion hereof.

R. OWNERSHIP AND RETENTION OF DOCUMENTS. With the exception of Partner submittals and deliverables to Client (which submittals shall be jointly owned by Client and Partner), all documents and information provided, prepared, and/or researched during this engagement, including, without limitation, historical research, property data, field data, field notes, photographs, laboratory test data, calculations, measurements and analyses are prepared as instruments of service and shall remain the physical and intellectual property of Partner, and shall not be considered a “work for hire.” Partner will retain all pertinent records relating to the Services performed for a period of two years, except for records relating to Appraisal services, if applicable, which shall be retained for sixty (60) months following the completion of Partner’s services. After this period, they may be discarded.

S. NO ASSIGNMENT. Neither party shall assign their rights under this Agreement to any third party, including, but not limited to, any heirs, devisees, representatives, successors, assigns, affiliates, and subsidiaries of the parties or any partnership, corporation or other entity controlled by the parties or which control the parties without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Each party, and the person executing on behalf of such party, represent and warrant that such person has the full power and authority to bind the party represented.

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