The professional services (“Services”) to be provided by Axiom Structures, Inc. (“ASI”) for the referenced party (“Client”) pursuant to this contract (“Proposal”) shall be provided in accordance with these Terms and Conditions of Service (“Terms”), including any addenda as may be incorporated or referenced in writing or electronic format and shall form the Agreement between ASI and Client.
1.0 INDEPENDENT CONSULTANT STATUS
ASI shall serve as an independent professional consultant to Client for Services on the contracted Project and shall have control over, and responsibility for, the means and methods for providing the Services identified in the Proposal.
2.0 SCOPE OF SERVICES
It is understood that the fees, reimbursable expenses and time schedule defined in the Proposal are based on information provided by Client and/or Client’s, agents, contractors and consultants. Client acknowledges that if this information is not current, is incomplete or inaccurate, if conditions are discovered that could not be reasonably foreseen, or if Client orders additional services, the scope of services and thus the proposed fees will change, even while the Services are in progress.
3.0 STANDARD OF CARE
3.1
In fulfilling its obligations and responsibilities enumerated in the Proposal, ASI shall be expected to comply with and its performance evaluated in light of the standard of care expected of professionals in the industry performing similar services on Projects of like size and complexity at that time in the region (the “Standard of Care”). Nothing contained in the Proposal, the agreed-upon scope of Services, these Terms or any ASI report, opinion, plan or other document prepared by ASI shall constitute a warranty or guarantee of any nature whatsoever.
4.0 CONCEALED RISKS
4.1
Client acknowledges that special risks are inherent in evaluating concealed conditions that are hidden from view and/or are neither readably apparent nor easily accessible. Such circumstances require that certain assumptions be made regarding existing conditions, which may not be verifiable without expending additional sums of money or destroying otherwise adequate or serviceable portions of a building or component thereof.
Accordingly, ASI shall not be responsible for the verification of such conditions unless verification can be made by visual observation and the Client has provided all safe and appropriate means of access for ASI. Client agrees to bear any and all costs, losses, damages and expenses (including, but not limited to, the cost of ASI’s additional services) in any way arising from or in connection with the existence or discovery of such concealed or unknown conditions.
5.0 RIGHT OF ENTRY / DAMAGE RESULTING FROM SERVICES
5.1
Client warrants that it possesses the authority to grant ASI right of entry to the site for the performance of Services. Client hereby grants ASI and its agents, subcontractors and/or subconsultants (“Subconsultants”), the right to enter from time to time onto the property in order for ASI to perform its Services. Client agrees to indemnify and hold ASI and its Subconsultants harmless from any claims arising from allegations that ASI trespassed or lacked authority to access the Site.
5.2
Client warrants that it possesses all necessary permits and approvals for the Services to be provided by ASI except where this contract explicitly states that ASI will obtain such permits or approvals.
5.3
ASI will take reasonable precautions to limit damage to the Site and its improvements during the performance of its Services. Client understands that the use of equipment will cause damage to the Site. The correction and restoration of such common damage is Client’s responsibility unless specifically included in ASI Proposal.
6.0 SAFETY
6.1
Unless expressly agreed to in writing in its Proposal, Client agrees that ASI shall have no responsibility whatsoever for any aspect of site safety other than for its own employees. Nothing herein shall be construed to relieve Client and/or its Contractors from their responsibility for site safety.
6.2
Neither the professional activities of ASI, nor the presence of ASI or its employees and subconsultants at the construction/project site, shall relieve the General Contractor of its obligations, duties and responsibilities including, but not limited to, construction means, methods, sequence, techniques or procedures necessary for performing, superintending and coordinating the Work in accordance with the contract documents and any health or safety precautions required by any regulatory agencies.
6.3
ASI and its personnel have no authority to exercise any control over any construction contractor or its employees in connection with their work or any health or safety programs or procedures.
7.0 CONSTRUCTION OBSERVATION AND REMEDIATION SERVICES
7.1
Client understands that construction observation and remediation services (if agreed upon) are provided in an effort to reduce, but cannot eliminate, the risk of problems arising during or after construction or remediation. Client agrees that the provision of such Services does not create a warranty or guarantee of any type.
7.2
Monitoring and/or testing services provided by ASI shall not in any way relieve the Client’s contractor(s) from their responsibilities and obligations for the quality or completeness of construction as well as their obligation to comply with applicable laws, codes, and regulations.
7.3
ASI has no responsibility whatsoever for the means, methods, techniques, sequencing or procedures of construction selected, for safety precautions and programs incidental to work or services provided by any contractor or other consultant.
8.0 FULL-TIME MONITORING RECOMMENDATION
ASI strongly recommends that Client retain ASI to provide construction monitoring and testing services on a full time basis to lower the risk of defective or incomplete work being installed by Client’s Contractors.
9.0 CERTIFICATIONS
Client may request, or governing jurisdictions may require, ASI to provide a “certification” regarding the Services provided by ASI.
Any “certification” required of ASI by the Client or jurisdiction(s) having authority over some or all aspects of the Project shall consist of ASI inferences and professional opinions based on the limited observations, tests, and/or analyses performed by ASI at discrete locations and times.
10.0 BILLINGS AND PAYMENTS
10.1
Billings will be based on the proposed rates, plus travel costs, and other reimbursable expenses as stated in the professional fees section of the Proposal.
10.2
Client agrees that its obligation to pay for the Services is not contingent upon Client’s ability to obtain financing, approval of governmental or regulatory agencies, permits, final adjudication of a lawsuit, Client’s successful completion of the Project, settlement of a real estate transaction, receipt of payment from Client’s Client, or any other event unrelated to ASI provision of Services.
10.3
Payment of any invoice by the Client shall mean that the Client is satisfied with ASI Services and does not find any defects in those Services.
11.0 LIMITATION OF LIABILITY
11.1
Client agrees to allocate certain risks associated with the Project by limiting ASI total liability to Client arising from ASI professional liability.
- 11.1.1 If the proposed fees are $10,000 or less, ASI total aggregate liability to Client shall not exceed $10,000, or the total fee received for the services rendered, whichever is less.
- 11.1.2 If the proposed fees are in excess of $10,000, ASI total aggregate liability to Client shall not exceed $20,000, or the total fee for the services rendered, whichever is less.
12.0 INDEMNIFICATION
To the fullest extent permitted by law, Client agrees to indemnify, and hold ASI harmless from and against any and all liability, claims, damages, demands, fines, penalties, costs and expenditures.
13.0 CONSEQUENTIAL DAMAGES
Client shall not be liable to ASI and ASI shall not be liable to Client for any consequential damages incurred by either due to the fault of the other.
14.0 SOURCES OF RECOVERY
All claims for damages related to the Services provided under this Agreement shall be made against the ASI entity contracting with the Client for the Services, and no other person or entity.
15.0 THIRD PARTY CLAIMS EXCLUSION
Client and ASI agree that the Services are performed solely for the benefit of the Client and are not intended by either Client or ASI to benefit any other person or entity.
16.0 DISPUTE RESOLUTION
16.1
In the event any claims, disputes, and other matters in question arising out of or relating to these Terms or breach thereof, the parties shall promptly attempt to resolve all such Disputes through executive negotiation between senior representatives of both parties familiar with the Project.
16.2
Client shall make no claim against ASI unless Client shall have first provided ASI with a written certification executed by an independent engineer licensed in the jurisdiction in which the Project is located.
17.0 TERMINATION
Either the Client or ASI reserves the right to terminate this Agreement in the event of breach, non-payment, or failure to cooperate.
18.0 TIME BAR TO LEGAL ACTION
Unless prohibited by law, Client and ASI agree that a lawsuit by either party alleging a breach of this Agreement must be initiated in a Florida court of law no more than two (2) years from the time the party knew, or should have known, of the facts and conditions giving rise to its claim.
19.0 ASSIGNMENT
Client and ASI respectively bind themselves, their successors, assigns, heirs, and legal representatives to the other party.
20.0 SEVERABILITY
Any provision of these Terms later held to violate any law, statute, or regulation, shall be deemed void, and all remaining provisions shall continue in full force and effect.
21.0 SURVIVAL
All obligations arising prior to the termination of the agreement represented by these Terms shall survive the substantial completion of Services and the termination of the Agreement.
22.0 REFUNDS
22.1 Initial Deposits and Retainers
All deposits or retainers made to secure engineering services are non-refundable.
22.2 Florida Right to Cancel
Under Florida law, clients may have the right to cancel a contract within 3 business days if the agreement is solicited and signed outside of Axiom Structures’ regular place of business.
22.3 Refunds for Incomplete Services
If a project is canceled before work has commenced, clients may be eligible for a refund of 50% of the deposit.
22.4 Refunds for Partially Completed Work
If a project is canceled after work has commenced, clients will be billed for all labor fees accumulated up to the point of cancellation.
22.5 Completed Work and Deliverables
Once services have been rendered, or deliverables have been provided, no refunds will be issued.
23.0 NO-SHOW FEE POLICY
23.1 Definition of a No-Show
A “no-show” occurs when a client fails to be present at the scheduled inspection location within 15 minutes of the agreed-upon start time without prior notification.
23.2 No-Show Fee
In the event of a no-show, Axiom Structures will charge a fee of $250 per hour of staff time spent to accommodate the inspection and return to the office.
23.3 Notification and Exceptions
Clients must notify Axiom Structures of any changes or cancellations at least 24 hours before the scheduled inspection.
Contractual Limitation on Liability Statement:
Per Florida Statute 558.0035(1c) an individual employee or agent of The Company shall not be held liable for negligence in connection with this agreement.