terms & conditions
Section 1 – General
1.1 The remote consultation of this property is subject to the Limitations and Conditions set out in this Agreement. Because evaluation of the existing structure requires certain assumptions be made regarding existing conditions, and because some of these assumptions cannot be verified without expending additional sums of money or destroying otherwise adequate or serviceable portions of the building, the Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless the remote consultation against all damages, liabilities or costs, including reasonable attorneys fees and defense costs, arising out of or in any way connected with this Project.
1.2 The remote consultation is based on a digital communication means and not an in-person visit. The remote consultation does not include identifying defects that are hidden behind walls, floors or ceilings. This includes wiring, heating, cooling, structure, plumbing and insulation that are hidden or inaccessible. Some intermittent problems may not be obvious on an remote consultation because they only happen under certain circumstances.
1.3 We will have no liability for any claim or complaint if conditions have been disturbed, altered, repaired, replaced or otherwise changed before we have had a reasonable period of time to investigate.
1.4 The remote consultation report is for the exclusive use of the client named herein. No use of the information by any other party is intended.
1.5 This remote consultation should not be considered a warranty or guarantee, implied or expressed, of the structure in general, including but not limited to the building superstructure, slabs, foundations, repairs recommended or repairs performed. Structures including but not limited to their foundations and slabs may be affected severely by changes in climate, land use, drainage, soil moisture conditions, soil characteristics, and other factors too numerous to list. The conclusions presented in this report are based on the conditions observed during our visit. Our opinions and recommendations are subject to change based on new information as it becomes available to this office.
1.6 Bear Engineering shall perform those professional services as specified in the AGREEMENT and detailed herein. In rendering these services, Bear Engineering shall apply the skill and care ordinarily exercised by contemporaneous design professionals of the same discipline currently practicing under similar circumstances at the same time and in the same or similar locality. Upon notice to Bear Engineering and by mutual agreement between the parties, Bear Engineering will, without additional compensation, correct those services not meeting such a standard.
1.7 Bear Engineering shall put forth reasonable professional efforts to comply with the applicable laws, codes and regulations in effect as of the date of the execution of this AGREEMENT. Design changes made necessary by newly enacted laws, codes and regulations after this date shall entitle Bear Engineering to a reasonable adjustment in the schedule and additional compensation in accordance with the Additional Services provisions of this AGREEMENT.
Section 2 - Fees and Payments
2.1 Fees and Other Compensation
2.1.1 Fees for basic services, additional services, and compensation for reimbursable expenses are set forth in the AGREEMENT.
2.1.2 If Bear Engineering's services covered by this Agreement have not been completed within 12 months of the date hereof, through no fault of Bear Engineering, the remaining fees shall be escalated at the rate of 5% per year.
2.2 Payments on Account
2.2.1 Invoices for Bear Engineering's services shall be submitted, at Bear Engineering's option, either on a monthly basis or upon completion of any phase of service. Invoices shall be payable when rendered and shall be considered PAST DUE if not paid within 15 days after the invoice date. Any project with payment past due, Bear Engineering retains the right to suspend services until the past due payment is received and the Client’s account is in good standing.
2.3 Late Payments
2.3.1 A service fee of 1.5% (18% annual rate) per month or the maximum allowable by law will be charged on the outstanding balance of "past due" accounts.
2.3.2 In the event that any portion of an account remains unpaid 90 days after billing, Bear Engineering may, without waiving any claim or right against the CLIENT, and without liability whatsoever to the CLIENT, suspend the performance of the service.
Section 3 - Insurance, Indemnification and Limitation of Liability
Bear Engineering shall secure and maintain professional liability insurance to protect Bear Engineering from claims which may arise out of the performance of Bear Engineering's services under this AGREEMENT, and from claims under the Workers' Compensation Acts. Bear Engineering shall, if requested in writing, issue certificates confirming such insurance to the CLIENT.
3.2 Limitation of Liability
3.2.1 In recognition of the relative risks and benefits of the project to both the CLIENT and Bear Engineering, the risks have been allocated such that the CLIENT agrees, to the fullest extent permitted by law, to limit the liability of Bear Engineering, its officers, employees, and sub-consultants on this project for any and all negligent acts, injuries, claims, losses, expenses, damages of any nature whatsoever or claims expenses from any cause or causes, including attorneys' fees and costs and expert witness fees and costs, so that the total aggregate liability of Bear Engineering shall not exceed the amount of fees paid to Bear Engineering under this AGREEMENT. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law.
3.2.2 Time Bar to Legal Action: All legal actions by either party against the other arising out of or in any way connected with this AGREEMENT or the services to be performed hereunder shall be barred and under no circumstances shall any such legal action be initiated by either party after five (5) years from the date of Substantial Completion, unless this AGREEMENT shall be terminated earlier, in which case the date of termination of this AGREEMENT shall be the date on which such period shall commence.
Bear Engineering agrees, to the fullest extent permitted by law, to indemnify and hold harmless the CLIENT, its officers, directors and employees (collectively, CLIENT) against all damages, liabilities or costs, including reasonable attorneys’ fees and defense costs, to the extent caused by Bear Engineering’s negligent performance of professional services under this AGREEMENT and that of its sub-consultants or anyone for whom Bear Engineering is legally liable. The CLIENT agrees, to the fullest extent permitted by law, to indemnify and hold harmless Bear Engineering, its officers, directors, employees and sub-consultants (collectively, Bear Engineering) against all damages, liabilities or costs, including reasonable attorneys’ fees and defense costs, to the extent caused by the CLIENT’S negligent acts in connection with the PROJECT and the acts of its contractors, subcontractors or consultants or anyone for whom the CLIENT is legally liable. The CLIENT agrees that any and all limitations of Bear Engineering’s liability, waivers of damages by the CLIENT to Bear Engineering and indemnifications by the CLIENT to Bear Engineering shall include and extend to those individuals and entities
Bear Engineering retains for performance of the services under this Agreement, including but not limited to Bear Engineering’s officers, partners and employees and their heirs and assigns, as well as Bear Engineering’s sub consultants and their officers, employees, heirs, and assigns. Neither the CLIENT nor Bear Engineering shall be obligated to indemnify the other party in any manner whatsoever for the other party’s own negligence or for the negligence of others.
3.4 Third-Party Beneficiaries
Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the CLIENT or Bear Engineering. Bear Engineering’s services under this agreement are being performed solely for the CLIENT’s benefit, and no other party or entity shall have any claim against Bear Engineering because of this Agreement or the performance or nonperformance of services hereunder. The CLIENT and Bear Engineering agree to require a similar provision in all contracts with contractors, subcontractors, sub consultants, vendors and other entities involved in this PROJECT to carry out the intent of this provision.
Section 4 - Miscellaneous Provisions
4.1 Opinions of Probable Construction Cost
In providing opinions of probable construction cost, the CLIENT understands that Bear Engineering has no control over costs or the price of labor, materials, or equipment, or over the Contractor's method of pricing, and that the opinions of probable construction costs provided herein are to be made on the basis of Bear Engineering's qualifications and experience. Bear Engineering makes no warranty, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. If the CLIENT wishes greater assurance as to Project or Construction Costs, he shall employ an independent cost estimator. Services to modify the Contract Documents to bring the Construction Cost within any limitation established by the CLIENT shall be considered Additional Services and paid for as such by the CLIENT.
4.2 Disputes Resolution
All claims, counterclaims, disputes and other matters in question between the parties hereto arising out of or relating to this Agreement or breach thereof will be presented to non-binding mediation, subject to the parties agreeing to a mediator(s).
4.3 Governing Laws
Unless otherwise specified, this contract shall be governed by the laws of the State of California