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Section 4: Compensation
<br />4.1 You will pay for the Services as agreed or according to our
<br />then current fee schedules if there is no other written
<br />agreement as to price. An estimated cost is not a firm figure
<br />unless stated as such and you should allow for a
<br />contingency in addition to estimated costs.
<br />4.2 You agree to notify us of billing disputes within 15 days and
<br />to pay undisputed portions of invoices within 30 days of
<br />invoice date. For balances not paid under these terms, you
<br />agree to pay interest on unpaid balances beginning 10 days
<br />after invoice date at the rate of 1.5% per month, but not to
<br />exceed the maximum rate allowed by law.
<br />4.3 If you direct us to invoice another, we will do so, but you
<br />agree to be responsible for our compensation unless you
<br />provide us with that person's written acceptance of the
<br />terms of our Agreement and we agree to extend credit to
<br />that person.
<br />4.4 You agree to compensate us in accordance with our fee
<br />schedule if we are asked or required to respond to legal
<br />process arising out of a proceeding to which we are not a
<br />party.
<br />4.5 If we are delayed by factors beyond our control, or if the
<br />project conditions or the scope of work change, or if the
<br />standards change, we will receive an equitable adjustment
<br />of our compensation.
<br />4.6 In consideration of our providing insurance to cover claims
<br />made by you, you hereby waive any right of offset as to
<br />payment otherwise due us.
<br />Section 5: Disputes, Damage, and Risk Allocation
<br />5.1 Each of us will exercise good faith efforts to resolve disputes
<br />without litigation. Such efforts will include a meeting
<br />attended by each party's representative empowered to
<br />resolve the dispute. Disputes (except collections) will be
<br />submitted to mediation as a condition precedent to
<br />litigation.
<br />5.2 We will not be liable for special, incidental, consequential,
<br />or punitive damages, including but not limited to those
<br />arising from delay, loss of use, loss of profits or revenue, loss
<br />of financing commitments or fees, or the cost of capital.
<br />Each of us waives against the other and its subcontractors,
<br />agents, and employees all rights to recover for losses
<br />covered by our respective property/casualty or auto
<br />insurance policies.
<br />5.3 We will not be liable for damages unless you have notified
<br />us of your claim within 30 days of the date of your discovery
<br />of it and unless you have given us an opportunity to
<br />investigate and to recommend ways of mitigating damages,
<br />and unless suit is commenced within two years of the earlier
<br />of the date of injury or Toss and the date of completion of
<br />the Services.
<br />5.4 For you to obtain the benefit of a fee which includes a
<br />reasonable allowance for risks, you agree that our
<br />aggregate liability will not exceed the fee paid for our
<br />services, but not Tess than $50,000, and you agree to
<br />indemnify us from all liability to others in excess of that
<br />amount. If you are unwilling to accept this allocation of risk,
<br />we will increase our aggregate liability to $100,000 provided
<br />that, within 10 days of the date of our Agreement, you
<br />provide payment in an amount that will increase our fees by
<br />10%, but not less than $500, to compensate us for the
<br />greater risk undertaken. This increased fee is not the
<br />purchase of insurance.
<br />5.5 If you fail to pay us within 60 days following invoice date,
<br />we may consider the default a total breach of our
<br />Agreement and, at our option, we may terminate all of our
<br />duties without liability to you or to others.
<br />5.6 If we are involved in legal action to collect our
<br />compensation, you agree to pay our collection expenses,
<br />including reasonable attorneys' fees.
<br />5.7 The law of the state in which the project site is located will
<br />govern all disputes. Each of us waives trial by jury. No
<br />employee acting within the scope of employment will have
<br />any individual liability for his or her acts or omissions and
<br />you agree not to make any claim against individual
<br />employees.
<br />Section 6: Miscellaneous Provisions
<br />6.1 We will provide a certificate of insurance to you upon
<br />request. Any claim as an Additional Insured will be limited
<br />to losses caused by our sole negligence.
<br />6.2 This Agreement is our entire agreement, and it supersedes
<br />prior agreements. Only a writing signed by an authorized
<br />representative for each of us making specific reference to
<br />the provision modified may modify it.
<br />6.3 Neither of us will assign this Agreement without the written
<br />approval of the other. No other person has any rights under
<br />this Agreement.
<br />6.4 Only a writing may terminate this Agreement. We will
<br />receive an equitable adjustment of our compensation as
<br />well as our earned fees and expenses if our work is
<br />terminated prior to completion.
<br />6.5 We will not discriminate against any employee or applicant
<br />for employment because of race, color, creed, ancestry,
<br />national origin, sex, religion, age, marital status, affectional
<br />preference, disability, status with regard to public
<br />assistance, membership or activity in a local human -rights
<br />commission, or status as a specially disabled, Vietnam -era,
<br />or other eligible veteran. We will take affirmative action to
<br />ensure that applicants are considered, and employees are
<br />treated during their employment, without regard to those
<br />factors. Our actions will include, but are not limited to
<br />notifications, hiring, promotion or employment upgrading,
<br />demotion, transfer, recruitment or recruitment advertising,
<br />layoffs or terminations, rates of pay and other forms of
<br />compensation, and selection for training or apprenticeship.
<br />6.6 Neither we nor you, including our officers, employees, and
<br />agents, are agents of the other, except as agreed in writing.
<br />Except as agreed in writing, nothing in this Agreement
<br />creates in either party any right or authority to incur any
<br />obligations on behalf of, or to bind in any respect, the other
<br />party. Nothing contained herein will prevent either party
<br />from procuring or providing the same or similar products or
<br />services from or to any third person, provided that there is
<br />no breach of any obligations pertaining to confidentiality.
<br />End of Standard Terms
<br />Barr Engineering Co. Page 2 of 2 Ver. 12/13/2018
<br />Last reviewed: 12/13/2018
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