Terms and Conditions ACCESS Client agrees to provide access and right of entry to the premises where Firm will perform the Work for Firm’s personnel and any materials necessary for Firm to complete the Work. Client is responsible for obtaining any necessary permission from any property owners for access and use of their property. To the extent applicable, Client agrees to provide necessary scaffolds or personnel hoists to perform the Work in a safe manner. PROVISION AND USE OF PROJECT DOCUMENTS Client agrees to provide Firm with all information reasonably available to Client pertaining to the Work or the Project (the “Project Documents”). The Project Documents include, to the extent they exist but without limitation, any written agreements concerning the Project, plans, surveys, recorded deeds, correspondence, reports, specifications, subsurface reports, easement information, and any other related items or information. Should Firm request any additional information or documents from Client, Client agrees to use all commercially reasonable efforts to obtain and provide such information or documents. Client acknowledges that Firm may fully rely on the Project Documents and information contained therein, or provided by Client in connection with the same, in the performance of its Work in connection with the Project. Firm may provide Project Documents to third parties, but only in furtherance of Firm’s Work, without notifying Client in advance. Firm assumes no duty or obligation to verify the completeness or accuracy of the Project Documents. PAYMENT TERMS Client agrees to pay Firm for the balance of any amounts due for Work upon Firm’s completion of the Work and invoicing Client for same. Payment is due thirty (30) days after Client’s receipt of an invoice (the “Due Date”). If Client fails to pay an invoice on or before the Due Date, Firm reserves the right, three (3) days after Firm delivers written notice to Client of said delinquency, to: 1) immediately cease all Work under this Contract or any other contract between Client and Firm; and 2) to pursue any and all remedies against Client. Client shall fully indemnify and hold Firm harmless from and against any and all damages of any nature and kind whatsoever, without limitation, that result in whole or in part, from Firm’s cessation of its Work in connection with Client’s non-payment as described in this section. In the event Firm commences a legal action or pursues a claim of any kind or any collection effort against Client for an unpaid invoice or portion of same (collectively “Claim”), the Client agrees that it shall owe Firm, in addition to the principal amount of the invoice(s), interest in the amount of one percent (1%) per month commencing on the Due Date, and all collection costs, including without limitation court costs, reasonable attorneys’ fees, staff time, administrative time, and any other reasonable expenses in connection with Firm’s pursuit of a Claim. In the event Firm possesses a Client retainer, Firm may, at its option, apply monies paid as a retainer to any invoice, at any time. Once Firm has been paid for all invoices, Firm shall refund any remaining retainer to the Client, after Client’s request. Firm reserves the right to modify or increase its billing rates on or after the one-year anniversary date of the effective date of the Contract, which will be defined as the date Client accepts the Proposal unless otherwise agreed by the parties. STANDARD OF CARE AND DISCLAIMER OF WARRANTIES Firm will perform its services in connection with the Project in a manner consistent with the level of care and skill ordinarily exercised by members of the construction testing and inspection profession practicing contemporaneously under similar conditions in the locality of the project. Firm makes no other warranties, express or implied. INDEMNIFICATION A) FIRM TO CLIENT: Firm hereby agrees to indemnify and hold the Client and its current and future owners, officers, directors, members, shareholders, parent corporations, subsidiaries, related entities, affiliates, and employees harmless from, against and for any third-party losses, injuries, damages, claims, penalties, actions, causes of action, demands, liabilities, judgments, expenses, or the like, including reasonable attorney’s fees and reasonable litigation costs (collectively “Third-Party Claims”), which are directly and proximately caused by the negligence or willful misconduct of Firm or Firm’s employees, agents, sub consultants, or anyone acting by, though, on behalf of, or under Firm; provided, however, that Firm’s obligation hereunder shall not exceed the percentage of Third-Party Claims for which Firm is found liable and responsible. At Client’s request, Firm will provide confirmation to the Client of Firm’s insurance coverage regarding professional liability and commercial liability coverage. Notwithstanding anything herein to the contrary, Firm’s indemnification obligations do not apply to any portion of the Third-Party Claims caused by the negligence of any party that would otherwise be indemnified by Firm. B) CLIENT TO FIRM: Client hereby agrees to indemnify and hold Firm, and its current and future owners, officers, directors, members, shareholders, parent corporations, subsidiaries, related entities, affiliates, agents, and employees (collectively “Firm Parties”) harmless from, against and for all Third-Party Claims, which are directly and proximately caused by the negligence or willful misconduct of the Client or the Client’s employees, agents, sub consultants, or anyone acting by, though, on behalf of, or under the Client; provided, however, that the Client’s obligation hereunder shall not exceed the percentage of Damages for which the Client is found liable and responsible. Notwithstanding anything herein to the contrary, Client’s indemnification obligations do not apply to any portion of the Third-Party Claims caused by the negligence of any party that would otherwise be indemnified by Client. LIMITATION OF LIABILITY AND WAIVER OF CONSEQUENTIAL DAMAGES Any claim asserted by Client against Firm for damages, cost of defense, or expenses which the Client asserts or may assert against Firm concerning breaches of the Contract, design defects, errors, omissions, or professional negligence, with the exception of Third-Party Claims as defined above, shall be limited to the amount of Firm’s fee for the Work. Under no circumstances shall Firm be liable for extra costs or other consequences due to changed conditions or for costs related to the failure of contractors or suppliers to install work in accordance with the plans and specifications. The limitation of liability to the amount of Firm’s fee for the Work is a specifically bargained-for provision of this agreement, reflected in Firm’s fees. The Firm shall not be liable for errors in judgment or for any loss or damage, which occurs for any reason beyond the control of the Consultant. WAIVER OF CONSEQUENTIAL DAMAGES AND LOST PROFITS Firm shall not be liable to Client for indirect, special, incidental and/or consequential damages, including without limitation lost profits or damages resulting from business interruption, whether based in warranty, contract, tort or any other legal theory, and whether or not advised of the possibility of such damages. Firm shall not be liable to Client for lost profits of any nature or character. OWNERSHIP OF DOCUMENTS – All reports, field data, data, notes, plans, calculations, estimates, drawing documents and other work and items which Firm creates or prepares in furtherance of or in connection with the Work (collectively “Firm Materials”), are instruments of service and shall remain Firm’s property, until Client fully pays Firm for all Work and expenses related to Firm’s creation of Firm Materials. Client shall immediately return to Firm, upon Firm’s demand, all Firm Materials which Firm furnishes to the Client or Client’s agents, servants, employees, subcontractors, any person or entity for whom Client is responsible and/or anyone acting by, through or under Client (collectively “The Client Parties”), before the associated Work and expenses are paid for in full. Client further agrees any Firm Materials in its possession before Client has paid for the associated Work and expenses will not be used for any purpose other than to complete the Project. Proprietary information and Firm’s intellectual property including, but not limited to, Firm’s layering process for plans (collectively “Proprietary Information”), are not included within the phrase Firm Materials and shall, without exception, remain the exclusive property of Firm. Firm does not, by this Proposal, the performance of the Work, or otherwise, grant or convey any interest in the Proprietary Information to any party other than Firm. PERMITTED USES OF DOCUMENTS The Client agrees not to use or re-use Firm Materials, in whole or in part, for any purpose other than for the Project. Client further agrees not to alter Firm Materials. The Client further agrees not to transfer, send, share, copy, convey or provide Firm Materials to any individual or entity aside from the Client Parties without Firm’s prior written consent. The Client further covenants and agrees to waive any and all claims, actions, demands and causes of action, whether legal, equitable or otherwise, of every nature and description, that the Client has, had or may have against Firm related to or resulting in any way from uses prohibited in this section (collectively “Misuse”). The Client agrees, to the fullest extent permitted by law, to indemnify, defend, and hold Firm and Firm Parties harmless from any and all third-party losses, injuries, damages, claims, penalties, actions, causes of action, demands, liabilities, judgments, expenses, or the like, including reasonable attorney’s fees and reasonable litigation costs, and any other related expenses arising from or in any way related to Misuse. REVOCATION OF CERTIFICATION OR STATEMENTS Firm shall have the right to revoke any certification, statements, professionally sealed documents or plans in the event of Misuse or Client’s failure to pay amounts due and owing for the Work. TERMINATION – Client may terminate the Contract if Firm fails to substantially perform under the Contract, after five (5) business days’ written notice to Firm and an opportunity for Firm to cure during that period. The Client may terminate this Contract for convenience after three (3) business days’ written notice to the Firm. Firm may terminate the Contract if Client breaches the Contract or these Terms and Conditions after five (5) business days’ written notice to Client and an opportunity for Client to cure during that period. Firm may also terminate this Contract in the event there is a period exceeding four months during which Firm’s inspectors are not required at the Project site due to suspension or reduction of inspection operations at the Project site. Written notice of termination shall describe the reasons, to the extent they exist, for the termination. In the event either party terminates the Contract for any reason, Client shall pay Firm for all Work Firm has performed and all expenses Firm has incurred up through and including the termination date. In the event Client terminates the Contract for convenience, Client shall pay Firm, in addition to amounts Client would pay firm under the immediately preceding sentence, any reasonable amounts incurred by Firm in terminating its Work. SEVERABILITY AND TITLES The provisions of the Contract and these Terms and Conditions shall be severable, and if any provision of either shall be determined by any court of competent jurisdiction to be invalid, such determination shall not affect or invalidate the remainder of these Terms and Conditions or the Contract. The titles given to the Articles in this document are for ease of reference, only, and shall not be relied upon or utilized for any other purpose. CONSTRUCTION AND ACKNOWLEDGMENT OF AGREEMENT This Contract was negotiated pursuant to an arms-length transaction and is the product of joint drafting. Each party to the Contract acknowledges its full understanding of and agreement with the Contract’s terms. Each party has had the opportunity to consult with counsel of its choosing as to the Contract’s terms before executing it. The Contract shall not be construed more strictly against one party the other. ENTIRE AGREEMENT The parties agree and acknowledge that there are no verbal representations, promises, understandings or agreements concerning or relating to the Work other than as contained in the Contract. All previous negotiations and agreements between the parties concerning or relating to the Work are merged into the Contract. The terms of this document may only be modified by writing, signed by the parties hereto. VENUE AND GOVERNING LAW Any claims, actions, controversies, disputes of any nature concerning or relating to the Contract or the Work must be brought in federal or state court within Queens County or Kings County, New York. The parties hereto understand, agree and acknowledge the above constitutes a waiver of a right that the parties might otherwise have to bring a claim, action, proceeding, or the like in any other venue, jurisdiction or location. This document shall be deemed to have been made in and shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of law rules.