ADDITIONAL TERMS AND CONDITIONS FOR PROFESSIONAL SERVICES AGREEMENT WITH
RBM INDUSTRIES, Inc.
These Additional Terms are incorporated by reference into each professional services Agreement entered into by RBM Industries, Inc. with clients. Capitalized terms used, but not defined, in these Additional Terms shall have the same meaning that they are given in the Scope Of Work (“SOW”).
1. Changes to Agreement. Any changes to the Scope of Work or any other of the terms and conditions of this Agreement must be made in writing and agreed to by RBM and Client. The parties shall adjust the Contract Price and Schedule as applicable to reflect the agreed changes.
2. Ownership of Deliverables. All Deliverables, including any trademarks, trade secrets or other intellectual property or proprietary information included in the Deliverables, remain the property of RBM, and RBM shall retain all common law, statutory and other reserved rights in such documents, including intellectual property and copyright. RBM authorizes Client to (x) submit the final report and other Deliverables to the parties listed in the Scope of Work as needed to fulfill the Project purpose and (y) retain copies for use in its business and for its records. Deliverables may be shared with third parties not stated in the Scope of Work only with RBM’s prior written consent.
3. Payment Terms.
a. Payment Due Dates; Default Interest. Client shall pay the Contract Price in full no later than the date stated in this Agreement or in the SOW, as applicable. If Client does not pay any amount due by the payment due date, and to the extent permitted by law, RBM may charge Client default interest at a rate up to the maximum amount permitted under applicable law assessed on the amount due but unpaid until Client makes full payment of the amount due including interest.
b. Payment Method. Client shall pay amounts due to RBM according to the method specified by RBM to Client.
4. INDEMNIFICATION. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, CLIENT SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS RBM AND ITS AGENTS AND EMPLOYEES FROM AND AGAINST CLAIMS, DAMAGES, LOSSES, AND COSTS, INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES, ARISING OUT OF OR RESULTING FROM RBM’S PERFORMANCE OF THE PROFESSIONAL SERVICES PROVIDED TO CLIENT UNDER THIS AGREEMENT. CLIENT HEREBY EXPRESSLY INDEMNIFIES RBM FOR THE CONSEQUENCES OF ANY NEGLIGENT ACT OR OMISSION OF RBM AND ITS SUBCONTRACTORS, EXPERTS OR OTHER THIRD-PARTY SERVICE PROVIDERS, UNLESS SUCH ACT OR OMISSION CONSTITUTES GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
5. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL RBM’S LIABILITY TO CLIENT EXCEED THE SUM OF RBM’S FEE EARNED UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY REPRESENTS THE CUMULATIVE TOTAL LIABILITY OF RBM TO CLIENT WITH RESPECT TO ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES OR COSTS, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. THIS LIMITATION SHALL NOT APPLY TO CLAIMS, DAMAGES, LOSSES, LIABILITIES OR COSTS DUE TO FRAUD OR WILLFUL MISCONDUCT BY RBM, ITS EMPLOYEES OR ITS AGENTS.
6. Consequential Damages. RBM and Client waive any and all claims against each other for consequential, special, incidental or punitive damages arising out of or relating to this Agreement. This waiver is applicable, without limitation, to all consequential damages due to RBM’s termination of this Agreement.
7. Termination. RBM, in its sole discretion, may terminate this Agreement, stop performing services under this Agreement and recover from Client payment for services rendered and costs incurred as a result of the termination if:
a. Client fails to make payment to RBM in accordance with the payment terms agreed to,
b. Client fails to provide RBM promptly with materials and information requested by RBM to perform services,
c. Client fails to provide RBM, its employees or agents with a safe site for performing services after RBM has notified Client of the unsafe or hazardous conditions,
d. Client breaches any of its obligations agreed to in the SOW, or
e. If circumstances beyond the reasonable control of RBM occur that adversely affect RBM’s ability to complete the Scope of Work.
8. Dispute Resolution. In the situation where a claim, dispute or other disagreement between the parties arises out of or relates to this Agreement (the “Dispute”), the party with the Dispute shall notify the other party in writing of the details of the Dispute and if possible, the notifying party’s proposed resolution. Due to the specialized and complex nature of the professional services provided by RBM, the parties agree that any Dispute should be examined and determined by professionals experienced and knowledgeable about the foundation and structural engineering industry or the type of services provided under the Scope of Work (the “Business”). To the extent permitted by law, each party knowingly, voluntarily and intentionally agrees to waive its right to a jury trial to resolve a Dispute or any action or other legal proceeding arising out of or relating to this Agreement. This waiver applies to any action or legal proceeding, whether in contract, tort, strict liability or otherwise.
a. Non-binding dispute resolution. Within two (2) weeks of receiving a notice of the Dispute, the parties agree to meet and try in good faith to resolve promptly any Dispute by negotiation between principals who have the authority to settle the Dispute.
b. Mandatory binding arbitration. If after (2) weeks of discussions, the parties are unable to resolve the Dispute, the parties agree to submit the Dispute for arbitration and conduct the arbitration proceedings in accordance with the rules of the American Arbitration Association (“AAA”) before a panel of three arbitrators with experience in the Business (one of whom shall be an attorney licensed to practice in the state of Texas) who shall be selected by the parties in accordance with the AAA rules for direct appointment by a party. The arbitration is to be conducted in San Antonio, Texas, USA. The arbitrators are to apply Texas law, without regard to its choice of law provisions. The award issued by the arbitrators shall be final absent manifest error. If a party chooses to appeal the final award to a court of competent jurisdiction, it shall pay the costs of that appeal, including costs of the non-appealing party associated with the appeal. By signing the Agreement, each party submits any award, order or judgment to a court of competent jurisdiction in San Antonio, Texas for purposes of the enforcement of that award, order or judgment (provided that if such courts cannot obtain appropriate jurisdiction, then such enforcement may be in a court of competent jurisdiction).
c. In the event of any Dispute arising out of or relating to this Agreement or the Project, the prevailing party shall be entitled to recover from the non-prevailing party attorneys’ fees and other costs and fees incurred in connection with such Dispute.
9. Hazardous Materials and Conditions. RBM shall have no responsibility for the discovery, presence, handling, removal or disposal of, or exposure of persons to, hazardous materials or toxic substances in any form at the Project site. RBM shall not have control over, charge of or responsibility for safety precautions and programs in connection with the Project. Client shall ensure that the Project site is safe and free from hazardous conditions; shall inform RBM of any hazardous or unsafe conditions at any work site prior to RBM or its personnel entering that site to complete the Scope of Work; and shall be responsible for remediating any hazardous or unsafe conditions at the Project site.
10. Insurance. Throughout the term of this Agreement, RBM shall carry and maintain in force the following insurance:
a. Commercial General Liability Insurance with a limit of $1,000,000 in the event of personal injury or bodily injury to any number of persons or of damage to property arising out of any one occurrence, and not less than $2,000,000 in the aggregate. Such insurance shall also include coverage against liability for bodily injury or property damage arising out of use by or on behalf of RBM of any owned, non-owned or hired automotive equipment for a limit not less than that specified above.
b. Worker’s Compensation Insurance covering all employees of RBM employed in, on or about the Project in order to provide statutory benefits as required by the law of the State in which the Project is located.
c. Umbrella/Excess Liability Insurance for $5,000,000 per occurrence/aggregate per project to apply over the underlying liability coverage as herein required.
d. Professional Liability Insurance under a standard form policy, in an amount of $1,000,000 per claim and $2,000,000 annual aggregate, to be maintained throughout the period of the Agreement.
e. RBM shall require that any subcontractors, experts or other third-party service providers engaged or employed by RBM for the Project carry and maintain the insurance coverages above with reasonably prudent limits and coverages in light of the services to be rendered by such service providers.
11. No Presumption Against Drafter. Each party agrees that it had the opportunity to review the Agreement, including the SOW, the Scope of Work and these Additional Terms, and to consult with attorneys and professionals as it deemed appropriate. Accordingly, each party agrees that this Agreement will be construed without regard to any presumption or rule requiring construction against the party drafting the Agreement.
12. General Representations and Warranties. Each party represents and warrants that:
a. it has the authority to enter into this Agreement and has taken all actions necessary to authorize the execution, delivery and performance of this Agreement;
b. its execution, delivery and performance of this Agreement will not
i. violate any applicable provision of any law or regulation, or any order, writ, injunction or decree of any court or government entity;
ii. conflict with or result in any breach of any agreement of the party in any manner that would adversely affect the transactions contemplated under this Agreement; or
iii. violate any provision of the party’s respective formation documents; and
c. this Agreement is the legal, valid and binding obligation of the party, enforceable against the party in accordance with its terms, and has been signed by an authorized signatory of the party.
13. Representation of Client. No authorization or approval or other action by, and no notice to or filing with, any government authority or regulatory body is required for the due execution, delivery and performance of this Agreement, other than those which have been obtained or made and are in full force and effect.
14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without giving effect to any conflicts of laws provisions included in such laws, provided, however, that the Federal Arbitration Act shall govern Section 8(b), above. Any litigation arising out of or related to this Agreement and any enforcement of any arbitration award in connection with this Agreement must be filed in a court of competent jurisdiction in San Antonio, Texas. Both parties agree to the exclusive personal jurisdiction of the courts in San Antonio, Texas.
15. Compliance with Laws. Each party agrees to comply with all applicable laws and regulations, including all applicable anti-corruption laws and regulations, except that to the extent permissible by law, this provision shall not apply to RBM with regard to data privacy laws and regulations.
16. Data Privacy. Each party agrees that this Agreement deals with a business-to-business relationship and transaction. Each party agrees that it will not provide the other party with any personally identifiable or any other information that is or may be subject to data privacy or protections laws without the other party’s prior written consent.
17. Confidentiality. Each party agrees to keep the terms of this Agreement confidential and to protect any information shared with it by the other party that is designated as confidential by that party, except that the Deliverables may be delivered to and shared with any regulators or other third parties as contemplated by or otherwise made necessary by the work specified in the Scope of Work. If a party is required to disclose any other terms of this Agreement or any confidential information shared with it by the other party, the disclosing party will notify the other party before disclosing the information to the third party if reasonably possible, and if it is not possible, then as promptly as possible following the disclosure. Client agrees to assist RBM upon RBM’s request in opposing any required disclosure of confidential information. Each party acknowledges that the business terms included in this Agreement and any confidential information shared with the other party is material to its business and that its business would be adversely affected if these terms or other confidential information were disclosed to an unauthorized third party.
18. Notice. A party may provide any notice, consent, waiver or other communications required under this Agreement (collectively, a “Notice”) to the other party via e-mail to a party’s representative or by registered mail at the address included in the signature block, as may be modified from time to time, or to a party’s registered agent. Any Notice of a Dispute must be sent via overnight or registered mail. The recipient party’s representative must acknowledge receipt of an e-mail Notice for it to constitute valid and legal notice under this Agreement. Any change to the address for Notice should be sent in writing to the other party’s Representative. Any Notice given hereunder in accordance with the methods specified in this Section 18 shall be deemed received (a) on the next business day, if such Notice is sent by overnight mail by a reputable international courier, overnight service pre-paid, (b) on the third (3rd) business day after deposit with the United States Postal Service with appropriate postage affixed, or (c) the next successive business day following confirmation of receipt by the recipient, if such Notice was dispatched by email, provided, that any notice by email shall only be effective if a copy is also dispatched by the methods described in Section 18(a) or Section 18(b) of this Agreement.
19. Miscellaneous.
a. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable, provided that such modification shall reflect the initial intention of the parties as much as practicable. If the provision cannot be modified, the parties agree that remaining provisions of this Agreement will remain in full force if the essential terms and conditions of this Agreement for each party remain valid, binding and enforceable.
b. The SOW, the Additional Terms and any mutually agreed changes, amendments or other modifications represent the entire and exclusive agreement between the parties regarding the Scope of Work and the performance of services and transactions covered by this Agreement.
c. A party’s delay or failure to exercise any rights under this Agreement is not, or will not be deemed to be, a waiver or forfeiture of such rights.
d. No party may delegate any performance or assign any of its rights or obligations under this Agreement, whether by merger, consolidation, dissolution, operation of law or any other manner, without the prior written consent of the non-assigning party. Any unauthorized delegation of performance or assignment of rights will be void.
e. This Agreement binds and benefits the parties and their respective successors and assigns.
f. This Agreement does not and is not intended to confer any right or remedies upon any person or entity other than the parties to this Agreement.
g. The parties may execute this Agreement in counterparts and may exchange electronic signatures and signature pages electronically. Such signatures will be effective to make this Agreement binding on the parties.