POWER ENGINEERING SERVICES, LLC – TERMS OF SERVICE
These Terms of Services (“Terms”) govern the services provided by Power Engineering Services, LLC (“Contractor”) to the company (“Company”) listed on any applicable proposal or work order. These Terms only apply to transactions that do not have a written agreement, duly executed by both parties.. Company accepts these Terms by returning an executed copy of these terms or Order, or Company’s authorization for Contractor to begin performance of the Services, whichever occurs first, and such Terms shall control over any Company terms and conditions incorporated in a purchase order, work order or similar document, even if such terms and conditions were received by Contractor after Company was notified of these Terms.
These Terms of Service (“Terms”) govern the services provided by Power Engineering Services, LLC (“Contractor”) to the company (“Company”) listed on the applicable proposal or work order. These Terms only apply to transactions that do not have a written agreement duly executed by both parties. The Company accepts these Terms by returning an executed copy of these Terms or Order, or by authorizing the Contractor to begin performance of the Services, whichever occurs first.
1. Scope of Services. . Contractor perform certain engineering, inspection or other services, which may include provisions of materials and/or equipment (“Services”). The Services to be provided shall be set forth in the applicable proposal or work order (each, or together, the “Order”). Company agrees to provide Contractor with such information, data and criteria as may be required from time to time by Contractor to perform the Services efficiently and in accordance these Terms.
2. Independent Contractor/Performance of Services. Contractor will perform the Services as an independent contractor. Each party and its agents and representatives are independent consultants in relation to the other party with respect to all matters arising under these Terms and any Order. Nothing in these Terms or any Work Order shall be deemed to establish a partnership, joint venture, association, or employment relationship between the parties.
3. Compensation. Charges for Services will made be in accordance with the Schedule of Rates as defined in the Order. Company’s payment shall be due within thirty (30) days of receipt of invoice. Payment of invoices shall not be subject to or conditioned upon payment to Contractor by any other party or person. Contractor reserves the right to suspend its Services to Company without penalty should any undisputed invoices amounts not be paid within sixty (60) days of Company’s receipt of invoice.
5. Changes. Company may make changes to the Services through a written Change Order designed to be an amendment to the Order and signed by Contractor’s and Company’s authorized representative. If any change (or other condition or circumstance) causes or results in an increase or decrease in the cost or time required for Contractor to perform any part of the Services, an equitable adjustment shall be made to the compensation and/or schedule. Contractor shall not be responsible for delays caused by, or re-sequencing compelled by, Company’s failure to furnish necessary information, or to review or disapprove Contractor’s Services promptly as requested, or resulting from late, slow, or faulty performance by Company or others whose performance is precedent to or concurrent with the performance of Contractor’s Services.
6. Force Majeure. Contractor shall not be responsible for any delays in the performance of the Services by reason of strikes, lockouts, accidents, acts of God, pandemics, epidemics, or other causes beyond Contractor’s reasonable control.
7. Differing Site Conditions. During the progress of the Services, if Contractor encounters or Company discovers (1) subsurface or latent physical conditions at a site materially differing from any indicated within the Order or (2) previously unknown physical conditions or physical conditions of an unusual nature at the site that are generally recognized as not being inherent in Services, and if such conditions cause an increase or decrease in the cost or time required for performance of any part of the Services, an equitable adjustment shall be made to the compensation, schedule, and scope of the Services. Any such adjustments shall be specified by amendment in a Change Order to the Order. Anything to the contrary notwithstanding, Contractor shall have no liability for any hazardous material not introduced to the work location by it, and Company shall indemnify, defend and hold harmless Contractor for any claims or liabilities arising from preexisting or latent hazardous material, except to the extent Contractor negligently or willfully exacerbates same and fails to take action to mitigate any resultant damage. Contractor shall at no time be deemed to be the owner or be deemed to have title to such pre-existing hazardous materials.
8. Termination. Either Party may terminate an Order at any time upon thirty (30) business days’ written notice, provided that the terms of the Order shall remain in effect for the duration of any Orders issued prior to termination.
9. Insurance. Contractor shall maintain during the term of any Order insurance coverage relating to the execution of Services as follows: (a) Commercial General Liability Insurance, with a limit of $1,000,000 for each occurrence and $2,000,000 in the general aggregate. (b) Automobile Liability Insurance, with a limit of $1,000,000 for each accident, combined single limit for bodily injury and property damage. (c) Worker’s Compensation Insurance and Employer’s Liability Insurance, in accordance with statutory requirements, with a limit of $1,000,000 for each accident. (d) Professional Liability Insurance, only to the extent, if any, Subcontractor is providing engineering / design, with a limit of $1,000,000 for each claim and aggregate. Company and Contractor and their insurers waive all subrogation claims (to the extent permitted by law) they may have against each other and against agents and employees of the other.. Additional Insured status provided by these Terms by Contractor and/or its insurers is provided pursuant and subject to ISO Endorsement Form CG 20 10 12 19 and/or CG 20 37 12 19 for Commercial General Liability, and standard forms for policies other than Commercial General Liability. Waiver of subrogation and additional insured status shall only apply to the extent of Contractor’s expressly assumed indemnification obligations under these Terms.
10. INDEMNIFICATION. CONTRACTOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS COMPANY AND ITS AFFILIATES, AND THE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES AND AGENTS THEREOF, FROM AND AGAINST LIABILITY, LOSS, DAMAGE AND EXPENSE, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS, INCURRED OR SUFFERED BY THEM, TO THE EXTENT SUCH LIABILITY, LOSS, DAMAGE OR EXPENSE IS DIRECTLY ATTRIBUTABLE TO THE NEGLIGENCE OF CONTRACTOR IN AND DURING PERFORMING THE SERVICES. COMPANY SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS CONTRACTOR AND ITS AFFILIATES, SUBCONTRACTORS AND SUPPLIERS, AND THE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES AND AGENTS THEREOF, FROM AND AGAINST LIABILITY, LOSS, DAMAGE AND EXPENSE, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS, INCURRED OR SUFFERED BY THEM, TO THE EXTENT SUCH LIABILITY, LOSS, DAMAGE OR EXPENSE IS DIRECTLY ATTRIBUTABLE TO THE NEGLIGENCE OF COMPANY.
11. LIMITATION OF DAMAGES. NOTWITHSTANDING ANYTHING IN THESE TERMS, ANY ORDER, OR OTHERWISE TO THE CONTRARY, IN NO EVENT SHALL CONTRACTOR OR ANY AFFILIATE BE LIABLE OR RESPONSIBLE FOR, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCTS LIABILITY, INDEMNITY, CONTRIBUTION, OR ANY OTHER CAUSE OF ACTION, OR OTHERWISE, ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES, LOSS OF ACTUAL OR ANTICIPATED PROFITS, BUSINESS INTERRUPTIONS, AND LOSS OF POWER, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. IN ADDITION TO, CUMULATIVE OF AND NOT IN LIMITATION OF ANY OTHER LIMITS ON LIABILITY HEREIN, THE MAXIMUM AGGREGATE LIABILITY OF CONTRACTOR RELATED DIRECTLY OR INDIRECTLY TO ANY ORDER, OR THE SUBJECT MATTER OF ANY THEREOF, REGARDLESS OF CAUSE (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE), SHALL NOT EXCEED IN THE AGGREGATE AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF COMPENSATION PAID TO CONTRACTOR UNDER OR WITH RESPECT TO THE APPLICABLE ORDER FOR THE SERVICE(S) GIVING RISE TO ANY SUCH LIABILITY.
13. Governing Law. These terms shall be governed and construed in accordance with the laws of Texas, excluding any conflict of law or other provision referencing the laws of another jurisdiction. The Company and Contractor each hereby submit to the exclusive jurisdiction of the federal and state courts located in Harris County.
14. Entire Agreement. These Terms constitutes the entire agreement between the Parties relating to the subject matter hereof, and supersedes all previous contracts, understandings and other agreements between the Parties including any other terms, document or form issued by or on behalf of Company, all of which are hereby rejected and deemed void and of no force or effect.
15. General.
(a) The terms and provisions herein shall not be construed to alter, waive, or affect any lien rights that Contractor may have for performance of Services;. (b) One or more waivers by either Party of any term or condition of this Agreement or Order or of any breach thereof shall not be deemed a waiver of any breach of any other term or condition or of any subsequent breach of the same term or condition; (c) If any provision of these Terms or Order is determined to be invalid and unenforceable, the other provisions of the Agreement or Order shall continue in full force and effect; (d) Neither Party shall assign or transfer this Agreement or any Order without the prior written consent of the other Party; and (e) The pricing contained in any Order, purchase order, work order or similar document is valid for a period of 90 days from the submitted date or date such purchase order or work order is executed by Contractor whichever is later. In the event Contractor’s Services are scheduled to commence after the 90 day period has expired, Company and Contractor shall mutually agree on any increase in pricing through a written Charge Order. In the event an increase in price is not agreed to by the parties, Contractor shall be under no obligation to perform the Services stated in the applicable Order.