PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (“Agreement”) defines the terms for Our delivery and Your acceptance of Professional Services. Specific Professional Services to be provided to You, and Your payment obligations for same, shall be set forth in the applicable Order Form and/or Statement of Work. This Agreement is effective as of the date of Your acceptance of an applicable Statement of Work (the “Effective Date”).
ORDER TERMS. By accepting a Statement of Work or Work Order, either by clicking a box indicating Your acceptance or by executing an Order Form that references this Agreement, you agree that any Professional Services obtained pursuant to the Statement of Work are subject solely to this Agreement and the Statement of Work.
FEES FOR PROFESSIONAL SERVICES. Unless otherwise expressly stated in the applicable Statement of Work, Professional Services shall be provided on a time and materials (“T&M”) basis at Our T&M rates in effect at the time the Professional Services are performed. On a T&M engagement, if an estimated total amount is stated in the applicable Statement of Work, that amount is solely a good faith estimate for Your budgeting and Our resource scheduling purposes and not a guarantee that the work will be completed for that amount; the actual amount may be higher or lower. If the estimated amount is expended, we will continue to provide Professional Services on a T&M basis under the same rates and terms.
INVOICING AND PAYMENT. We shall invoice You monthly, unless otherwise expressly stated in the applicable Statement of Work. Charges shall be due and payable thirty (30) days of the invoice date and shall be deemed overdue if unpaid thereafter. Except for charges being disputed reasonably and in good faith, amounts remaining unpaid after the due date shall be subject to interest at 1.5% per month, or the highest rate allowed by law if lower, from the due date until the amounts are paid. You shall issue a purchase order, or alternative document acceptable to Us, on or before commencement of Professional Services under the applicable Statement of Work.
INCIDENTAL EXPENSES. Unless otherwise expressly stated in the applicable Statement of Work, You shall reimburse Us for material(s) and reasonable travel, administrative, and out-of-pocket expenses incurred in conjunction with the Professional Services.
AVAILABILITY AND COST OF STEEL, PLASTICS, & OTHER COMMODITIES. We shall not be responsible for failure to provide services, deliver products, or otherwise perform work required by this Agreement due to lack of available steel products or products made from plastics or other commodities. (i) In the event We are unable, after reasonable commercial efforts, to acquire and provide steel products, or products made from plastics or other commodities, if required to perform work required by this Agreement, You hereby agrees that We may terminate the Agreement, or the relevant portion of the Agreement, at no additional cost and without penalty. You agree to pay Us in full for all work performed up to the time of any such termination. (ii) If We are able to obtain the steel products or products made from plastics or other commodities, but the price of any of the products has risen by more than 10% from the date of the bid, proposal or date We executed this Agreement, whichever occurred first, then We may pass through that increase through a reasonable price increase to reflect increased cost of materials.
CONFINED SPACE. If access to confined space by Us is required for the performance of Services, Services shall be scheduled and performed in accordance with our then-current hourly rate.
HAZARDOUS MATERIALS. Subscriber represents that, except to the extent that We has been given written notice of the following hazards prior to the execution of this Agreement, to the best of Subscriber’s knowledge there is no:
- “Permit confined space,” as defined by OSHA,
- Risk of infectious disease,
- Need for air monitoring, respiratory protection, or other medical risk,
- Asbestos, asbestos-containing material, formaldehyde or other potentially toxic or otherwise hazardous material contained in or on the surface of the floors, walls, ceilings, insulation or other structural components of the area of any building where work is required to be performed under this Agreement.
All of the above are hereinafter referred to as “Hazardous Conditions”. We shall have the right to rely on the representations listed above. If hazardous conditions are encountered by Us during the course of Our work, the discovery of such materials shall constitute an event beyond our control and We shall have no obligation to further perform in the area where the hazardous conditions exist until the area has been made safe by Subscriber as certified in writing by an independent testing agency, and Subscriber shall pay disruption expenses and re-mobilization expenses as determined by Us.
- This Agreement does not provide for the cost of capture, containment or disposal of any hazardous waste materials, or hazardous materials, encountered in any of the Covered System(s) and/or during performance of the Services. Said materials shall at all times remain the responsibility and property of Subscriber. We shall not be responsible for the testing, removal or disposal of such hazardous materials.
- Code Compliance. We do not undertake an obligation to inspect for compliance with laws or regulations unless specifically stated in the Order Form. Subscriber acknowledges that the Authority Having Jurisdiction (e.g. Fire Marshal) may establish additional requirements for compliance with local codes. Any additional services or equipment required will be provided at an additional cost to Subscriber.
LIMITATION OF LIABILITY; LIMITATION OF REMEDY. Subscriber understands that We offers several levels of services and that the level described has been chosen by Subscriber after considering and balancing various levels of protection afforded and their related costs. It is understood and agreed by the Subscriber that We is not an insurer and that insurance coverage, if any, shall be obtained by the Subscriber and that amounts payable to Us hereunder are based upon the value of the services and the scope of liability set forth in this Agreement and are unrelated to the value of the Subscriber’s property and the property of others located on the premises. Subscriber agrees to look exclusively to the Subscriber’s insurer to recover for injuries or damage in the event of any loss or injury and that Subscriber releases and waives all right of recovery against Us arising by way of subrogation. We make no guaranty or Warranty, including any implied warranty of merchantability or fitness for a particular purpose that equipment or services supplied by Us will detect or avert occurrences or the consequences therefrom that the equipment or service was designed to detect or avert. It is impractical and extremely difficult to fix the actual damages, if any, which may proximately result from failure on the part of Us to perform any of its obligations under this Agreement. Accordingly, Subscriber agrees that We shall be exempt from liability for any loss, damage or injury arising directly or indirectly from occurrences, or the consequences therefrom, which the equipment or service was designed to detect or avert. Should We be found liable for any loss, damage or injury arising from a failure of the equipment or service in any respect, Our’s liability for Services performed on site at Subscriber’s premises shall be limited to an amount equal to the Agreement price (as increased by the price for any additional work) or, where the time and material payment term is selected, Subscriber’s time and material payments to Us. Where this Agreement covers multiple sites, liability shall be limited to the amount of the payments allocable to the site where the incident occurred. Such sum shall be complete and exclusive. If Subscriber desires Us to assume greater liability, the parties shall amend this Agreement by attaching a rider setting forth the amount of additional liability and the additional amount payable by the Subscriber for the assumption by Us of such greater liability, provided however that such rider shall in no way be interpreted to hold We as an insurer. IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGE, LOSS, INJURY, OR ANY OTHER CLAIM ARISING FROM ANY SERVICING, ALTERATIONS, MODIFICATIONS, CHANGES, OR MOVEMENTS OF THE COVERED SYSTEM(S), AS HEREINAFTER DEFINED, OR ANY OF ITS COMPONENT PARTS BY THE SUBSCRIBER OR ANY THIRD PARTY. WE SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DAMAGES ARISING FROM THE USE, LOSS OF THE USE, PERFORMANCE, OR FAILURE OF THE COVERED SYSTEM(S) TO PERFORM. The limitations of liability set forth in this Agreement shall inure to the benefit of all parents, subsidiaries and affiliates of Us, whether direct or indirect, Our’s employees, agents, officers and directors.
INDEMNITY. Subscriber agrees to indemnify, hold harmless and defend Us against any and all losses, damages, costs, including expert fees and costs, and expenses including reasonable defense costs, arising from any and all third party claims for personal injury, death, property damage or economic loss, arising in any way from any act or omission of Subscriber or Us relating in any way to this Agreement, including but not limited to the Services under this Agreement, whether such claims are based upon contract, warranty, tort (including but not limited to active or passive negligence), strict liability or otherwise. We reserve the right to select counsel to represent it in any such action.
LIMITED WARRANTY. WE WARRANT THAT ITS WORKMANSHIP AND MATERIAL FURNISHED UNDER THIS AGREEMENT WILL BE FREE FROM DEFECTS FOR A PERIOD OF ONE (1) YEAR FROM THE DATE OF FURNISHING. Where We provides product or equipment of others, we will warrant the product or equipment only to the extent warranted by such third party. EXCEPT AS EXPRESSLY SET FORTH HEREIN, WE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES PERFORMED OR THE PRODUCTS, SYSTEMS OR EQUIPMENT, IF ANY, SUPPORTED HEREUNDER.
TAXES, FEES, FINES, LICENSES, AND PERMITS. Subscriber agrees to pay all sales tax, use tax, property tax, utility tax and other taxes required in connection with the equipment and services listed, including telephone company line charges, if any. Subscriber shall comply with all laws and regulations relating to the equipment and its use and shall promptly pay when due all sales, use, property, excise and other taxes and all permit, license and registration fees now or hereafter imposed by any government body or agency upon the equipment or its use. We may, without notice, obtain any required permit, license or registration for Subscriber at Subscriber’s expense and charge a fee for this service. If Subscriber fails to maintain any required licenses or permits, We shall not be responsible for performing the services and may terminate the services without notice to Subscriber.
OUTSIDE CHARGES. Subscriber understands and accepts that We specifically denies any responsibility for charges associated with the notification or dispatching of anyone, including but not limited to fire department, police department, paramedics, doctors, or any other emergency personnel, and if there are any charges incurred as a result of said notification or dispatch, said charges shall be the responsibility of Subscriber.
INSURANCE. Subscriber shall name Us, its officers, employees, agents, subcontractors, suppliers, and representatives as additional insureds on Subscriber’s general liability and auto liability policies.
WAIVER OF SUBROGATION. Subscriber does hereby for itself and all other parties claiming under it release and discharge Us from and against all hazards covered by Subscriber’s insurance, it being expressly agreed and understood that no insurance company or insurer will have any right of subrogation against Us.
FORCE MAJEURE, EXCLUSIONS. We shall not be responsible for delays, interruption or failure to render services due to causes beyond its control, including but not limited to material shortages, work stoppages, fires, civil disobedience or unrest, severe weather, fire or any other cause beyond the control of Us. This Agreement expressly excludes, without limitation, provision of fire watches; reloading of, upgrading, and maintaining computer software; making repairs or replacements necessitated by reason of negligence or misuse of components or equipment or changes to Subscriber’s premises; vandalism; power failure; current fluctuation; failure due to non-Company installation; lightning, electrical storm, or other severe weather; water; accident; fire; acts of God; testing inspection and repair of duct detectors, beam detectors, and UV/IR equipment; provision of fire watches; clearing of ice blockage; draining of improperly pitched piping; batteries; recharging of chemical suppression systems; reloading of, upgrading, and maintaining computer software; corrosion (including but not limited to micro-bacterially induced corrosion (“MIC”)); cartridges greater that 16 grams; gas valve installation; or any other cause external to the Covered System(s) and We shall not be required to provide Service while interruption of service due to such causes shall continue. This Agreement does not cover and specifically excludes system upgrades and the replacement of obsolete systems, equipment, components or parts. All such services may be provided by Us at our sole discretion at an additional charge. If Emergency Services are expressly included in a work order issued pursuant to this Agreement, the Agreement price does not include travel expenses.
DELAYS. We shall have no responsibility or liability to Subscriber or any other person for delays in the installation or repair of the System or the performance of our Services regardless of the reason, or for any resulting consequences.
TERMINATION. We may terminate this Agreement immediately at its sole discretion upon the occurrence of any Event of Default as hereinafter defined. We may also terminate this Agreement at its sole discretion upon notice to Subscriber if our performance of its obligations under this Agreement becomes impracticable due to obsolescence of equipment at Subscriber’s premises or unavailability of parts. Termination rights for specific Services will be contained the Quotes, Proposals, and/or Work Orders for said Services.
NO OPTION TO SOLICIT. Subscriber shall not, directly or indirectly, on its own behalf or on behalf of any other person, business, corporation or entity, solicit or employ any Our employee, or induce any Our employee to leave his or her employment with Us, for a period of two years after the termination of this Agreement.
DEFAULT. An Event of Default shall include 1) any full or partial termination of this Agreement by Subscriber before the expiration of the then-current Term, 2) failure of the Subscriber to pay any amount within ten (10) days after the amount is due and payable, 3) abuse of the System or the Equipment, 4) failure by Subscriber to observe, keep or perform any term of this Agreement; 5) dissolution, termination, discontinuance, insolvency or business failure of Subscriber. Upon the occurrence of an Event of Default, We may pursue one or more of the following remedies, 1) discontinue furnishing Services, 2) by written notice to Subscriber declare the balance of unpaid amounts due and to become due under the this Agreement and any associated Work Order to be immediately due and payable, provided that all past due amounts shall bear interest at the rate of 1 ½% per month (18% per year) or the highest amount permitted by law, 3) receive immediate possession of any equipment for which Subscriber has not paid, 4) proceed at law or equity to enforce performance by Subscriber or recover damages for breach of this Agreement, and 5) recover all costs and expenses, including without limitation reasonable attorneys’ fees, in connection with enforcing or attempting to enforce this Agreement.
ONE-YEAR LIMITATION ON ACTIONS; CHOICE OF LAW. It is agreed that no suit, or cause of action or other proceeding shall be brought against either party more than one (1) year after the accrual of the cause of action or one (1) year after the claim arises, whichever is shorter, whether known or unknown when the claim arises or whether based on tort, Agreement, or any other legal theory. The laws of Virginia shall govern the validity, enforceability, and interpretation of this Agreement.
ASSIGNMENT. Subscriber may not assign this Agreement without Our’s prior written consent. We may assign this Agreement without obtaining Subscriber’s consent.
ENTIRE AGREEMENT. The parties intend this Agreement, together with any attachments, riders or Statements of Work and/or Work Orders (collectively the “Agreement) to be the final, complete and exclusive expression of their Agreement and the terms and conditions thereof. This Agreement supersedes all prior representations, understandings or agreements between the parties, written or oral, and shall constitute the sole terms and conditions relating to the Services. No waiver, change, or modification of any terms or conditions of this Agreement shall be binding on Us unless made in writing and signed by an Authorized Representative of Us.
HEADINGS. The headings in this Agreement are for convenience only.
SEVERABILITY. If any provision of this Agreement is held by any court or other competent authority to be void or unenforceable in whole or in part, this Agreement will continue to be valid as to the other provisions and the remainder of the affected provision.
ELECTRONIC MEDIA. Subscriber agrees that We may scan, image or otherwise convert this Agreement into an electronic format of any nature. Subscriber agrees that a copy of this Agreement produced from such electronic format is legally equivalent to the original for any and all purposes, including litigation. Subscriber agrees that Our’s receipt by fax of the Agreement signed by Subscriber legally binds Subscriber and such fax copy is legally equivalent to the original for any and all purposes, including litigation.
LEGAL FEES. We shall be entitled to recover from the Subscriber all reasonable legal fees incurred in connection with Our enforcing the terms and conditions of this Agreement.