1. Warranties and indemnification
In performing the services, Accurate Analytical Testing Llc shall exercise the degree of skill and care ordinarily exercised by a reasonable prudent professional in the same community and in the same time frame given the same or similar facts and circumstances. Except as set forth in the immediately preceding sentence, Accurate Analytical Testing Llc makes no warranty, express or implied, with respect to the services or any of its oral or written reports. Client acknowledges and agrees that (i) the services may require judgments to be made by Accurate Analytical Testing Llc that are based upon limited data rather than upon scientific certainties; (ii) Accurate Analytical Testing Llc’s approach, recommendations, and associated cost estimates, if any, are based on industry practices and averages; (iii) professional opinions are rendered with respect to observations made and data obtained at the time of assessment; (iv) ultimate outcomes could be inconsistent with the conclusions, results and projections of Accurate Analytical Testing Llc; and (v) there may be additional reports relating to the site (whether prepared by Accurate Analytical Testing Llc or other parties), and reliance upon any Accurate Analytical Testing Llc report without reference to any such other reports is done at client’s sole risk. All information regarding operations, plans, specifications, conditions or test data which is provided to Accurate Analytical Testing Llc by client, owners or third parties (including without limitation, any point of contact at the site), is deemed by Accurate Analytical Testing Llc to be correct and complete without any independent verification by Accurate Analytical Testing Llc. Accurate Analytical Testing Llc assumes no responsibility for the accuracy of such information and shall not be liable if reliance on such information results in incorrect conclusions or results. Client shall indemnify and hold Accurate Analytical Testing Llc harmless from and against any and all liabilities, losses, costs, damages, claims, obligations, fees and expenses (including reasonable attorneys’ fees) (collectively, “losses”?), if relying on such information results in incorrect conclusions or results. In addition, client shall indemnify and hold Accurate Analytical Testing Llc harmless from and against any and all losses if a failure to provide documents or information pursuant to section 7 hereof results in incorrect conclusions or results.
2. Limitation of liability
In no event shall Accurate Analytical Testing Llc be liable for latent or hidden conditions, conditions not actually observed by Accurate Analytical Testing Llc, the potential consequences of observable conditions, conditions of which client had knowledge of at the time of the assessment, or any unauthorized assignment of or reliance upon the reports. The liability of Accurate Analytical Testing Llc, and that of its officers, directors, employees, agents and subcontractors, to client or to any third party, including any company affiliated with such parties, or any officer, director, employee, agent, subcontractor, successor, or assign of such parties, for any losses, whether in contract or tort (including negligence and strict liability), related to the services, the agreement or otherwise, shall not exceed (a) an aggregate of $1,000.00 per project. In no event shall Accurate Analytical Testing Llc be liable to client for any exemplary, punitive, indirect, incidental, special, or consequential (including lost profits) damages arising from or in any way connected with its performance or failure to perform under the agreement, even if the affected party has knowledge of the possibility of such damages.
3. Reliance and assignment
Accurate Analytical Testing Llc’s written report shall contain the standard reliance language (if any) that has been pre-approved by the client and Accurate Analytical Testing Llc. If no pre-approved language exists, the services, the reports and other related work product provided by Accurate Analytical Testing Llc may be relied upon by the client, its successors and assigns with respect to a loan secured by the subject property, and any rating agency rating, or any issuer or purchaser of, any security collateralized or otherwise backed by such loan. No other person or entity may rely on the report without the advance written consent of Accurate Analytical Testing Llc, and no other third party beneficiaries are intended. Except as described above, the client shall not assign the proposal, any report or any related work product, without the prior written consent of Accurate Analytical Testing Llc. Any unauthorized reuse or redistribution of Accurate Analytical Testing Llc’s work product or reports shall be at the client’s and recipient’s sole risk, without liability to Accurate Analytical Testing Llc. Accurate Analytical Testing Llc client will hold Accurate Analytical Testing Llc harmless from any and all liability, obligation, cost and expense arising from or related to any unauthorized distribution or use by client of Accurate Analytical Testing Llc’s work product or reports. Accurate Analytical Testing Llc shall not assign its obligations under the proposal; however, Accurate Analytical Testing Llc may employ, by subcontract, suitably trained persons or entities acceptable to Accurate Analytical Testing Llc to perform the services.
4. Billings, payment and credit
The client shall pay Accurate Analytical Testing Llc for the services performed in accordance with the prices set forth in the proposal. Invoices shall be submitted in accordance with the proposal. Accurate Analytical Testing Llc reserves the right to cancel or modify payment terms of the proposal if the client does not meet the credit requirements of Accurate Analytical Testing Llc. In addition, if the potential financial condition of the client were to change due to lawsuit, bankruptcy, or other significant incidents, or if Accurate Analytical Testing Llc were to become aware of such change during the time frame of performing the services, Accurate Analytical Testing Llc reserves the right to cancel or modify the payment terms of the proposal. Payment of the Accurate Analytical Testing Llc invoices shall be the primary, absolute and non-contingent obligation of the client, and shall not be conditioned upon the closing of a loan transaction or any other event. Payment is due upon receipt. If Accurate Analytical Testing Llc does not receive payment in full within thirty (30) calendar days of the date of the invoice, the account shall be deemed delinquent. Unpaid delinquent balances shall bear interest from the invoice date at one and one-half percent (1.5%) per month, or at the maximum lawful interest rate (whichever rate is less). If a delinquency occurs, Accurate Analytical Testing Llc may, at its option (and without relieving the client from its payment obligation), revoke and disclaim the client’s right to rely on any report delivered pursuant to the proposal, until payment in full is made. The client shall be liable to Accurate Analytical Testing Llc for all costs and expenses of collection, including reasonable attorney and paralegal fees, and court costs. Time is of the essence with respect to this provision. Accurate Analytical Testing Llc’s non-exercise of any rights or remedies, whether specified herein or as otherwise provided by law, shall not be deemed a waiver of any rights or remedies, nor preclude Accurate Analytical Testing Llc from the future exercise of such rights or remedies. If a third party is accepting a proposal as agent for the client, such third party represents and warrants to Accurate Analytical Testing Llc that it is duly authorized to bind the client to the terms of the proposal and guarantees payment for services.
5. Right of entry and force majeure
The client shall arrange for the right of entry to the subject property (“site”?) by Accurate Analytical Testing Llc, its agents, employees, consultants, contractors and subcontractors, for the purpose of performing all acts as may be reasonably necessary to perform the services within the agreed scope of work. In certain instances, Accurate Analytical Testing Llc may require that site personnel operate major building systems and equipment at the time the services are performed. Accurate Analytical Testing Llc may require that an authorized knowledgeable representative of the owner be present at the site as a condition to the performance of the services. Accurate Analytical Testing Llc’s ability to comply with the schedule for performance described in the proposal is contingent upon timely site access. Accurate Analytical Testing Llc shall not be responsible for damages or delays in performance caused by force majeure, acts of god, events beyond the control of Accurate Analytical Testing Llc, or events that could not have been reasonably foreseen and prevented.
6. Documents and samples
All field notes, laboratory test data, calculations, estimates and other documents, data or information prepared by or on behalf of Accurate Analytical Testing Llc in connection with the performance of its service (collectively, “documents”?), shall remain the sole property of Accurate Analytical Testing Llc. All documents prepared by Accurate Analytical Testing Llc for the client with respect to any site shall be used solely for the intended purposes described in the proposal, and solely with respect to the subject site. Unless otherwise agreed, Accurate Analytical Testing Llc shall retain all documents for three (3) years following submission of Accurate Analytical Testing Llc’s report to the client. Documents shall be made available to the client upon written request and upon reasonable notice, and Accurate Analytical Testing Llc shall furnish copies to the client upon payment to Accurate Analytical Testing Llc by the client of the cost of reproduction and related expenses. In its sole discretion and without prior notice to the client, Accurate Analytical Testing Llc may dispose of all field samples within thirty (30) calendar days after submission of Accurate Analytical Testing Llc’s report to the client.
7. Matters known to client
The client, or site owner, shall provide Accurate Analytical Testing Llc with any and all information known to the client, or suspected by the client, which pertains to: (a) the existence or possible existence at, on, under or in the vicinity of the site, of any hazardous materials, pollutants, lead-based paint, radon or asbestos; (b) any conditions at, on, under or in the vicinity of the site, which might represent a potential safety hazard or danger to human health or the environment; (c) any permit, manifest, title record, or other record of compliance or non-compliance with any federal, state or local laws, or court or administrative order or decrees; (d) know or suspected deficiencies or adverse conditions associated with structures or other physical improvements on site; or (e) modifications or changes from the original plans and specifications of site improvements which could affect the recommendations or conclusions reached by Accurate Analytical Testing Llc in the performance of its services.
Accurate Analytical Testing Llc shall not disclose information regarding the proposal, the services or any documents, except to the client, employees, consultants, subcontractors or other persons engaged by Accurate Analytical Testing Llc to perform the services, third parties designated by the client (subject to the reliance limitations described herein), or as required by law. Notwithstanding the terms of this section, Accurate Analytical Testing Llc (i) shall comply with all judicial orders, government directives, and laws, regulations and ordinances, regarding the reporting to appropriate public agencies of potential dangers to public health, safety or the environment; and/or (ii) may report such information to third parties provided such information is aggregated and does not identify client as the source of such information.
Accurate Analytical Testing Llc is an independent contractor of client, and not client’s agent, employee or partner. The agreement shall be governed by the laws of the state of michigan. The parties agree that they shall settle any and all disputes arising from this agreement through binding arbitration, which shall be held in detroit, michigan pursuant to the rules of the american arbitration association. Client irrevocably consents to the jurisdiction of the courts of the state of michigan and of the united states district court for the district of michigan, if a basis for federal jurisdiction exists, in any suit to enforce an arbitration award or in any other suit. In the event a dispute relating to an Accurate Analytical Testing Llc report results in litigation, and the claimant does not prevail at trial, then the claimant shall pay all costs incurred by Accurate Analytical Testing Llc in the defense of the claim, including reasonable attorney’s fees. Each provision of the agreement shall be considered separable, and if, for any reason, any provision or provisions herein are determined to be invalid and contrary to any existing or future law, such invalidity shall not affect those portions of this agreement that are valid. This agreement constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the services to be provided pursuant to this agreement. The provisions of the agreement may only be modified by a written instrument signed by an authorized representative of each party.