1. TERM OF AGREEMENT
1.1. These Terms and Conditions apply to Kestrel Tellevate LLC and its subsidiaries (hereinafter “KTL”).
2. KTL RESPONSIBILITIES
2.1. Standard of Care – KTL will perform the Services in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar conditions. (Note: This language is consistent with the language of KTL’s professional liability insurance.)
2.2. Safety – KTL is responsible for the safety of its own employees. Neither the professional services of KTL, nor the presence of KTL’s employees or subcontractors will imply that KTL has any responsibility for any activities on site performed by personnel other than KTL’s employees or subcontractors.
2.3. Responsibility for Uncompleted Services – If any of the Services are eliminated, or if KTL is not retained to perform subsequent phases, KTL’s responsibility will extend only to the Services it completes.
2.4. Reliance on Information – In performing these services, KTL may review and interpret documents and other information provided to it by others, including Client, Client’s contractors, government authorities, laboratories and other entities. Unless specifically addressed in Project Services authorized by Client, KTL may rely upon this information without an independent evaluation of its accuracy or completeness, and shall not be responsible for any errors or omissions contained in such information.
3. TIME FOR PERFORMANCE
3.1. General – KTL’s Services will be performed according to the Schedule specified in the Proposal.
3.2. Effect of Delay – If the Services to be performed by KTL are interrupted, disrupted, suspended, or delayed for any reason beyond the reasonable control of KTL, the Schedule of work and the date for completion will be adjusted accordingly, and KTL will be compensated for all reasonable increased costs resulting from such interruption, disruption, suspension, or delay.
4.1. Method of Compensation – Compensation for services shall be as set forth in the Proposal.
4.2. Taxes – All charges are net of any applicable taxes (except income and payroll taxes). Any additional costs due to applicable taxes will be reimbursed by Client.
5.1. Invoicing – Unless otherwise specified in the Proposal, KTL will submit monthly invoices or at the completion of the project to Client for the Services performed and the charges incurred in the preceding period. Invoices are due and payable thirty (30) calendar days after the invoice date.
5.2. Disputed Invoices – If Client objects to all or any portion of the invoice, Client will notify KTL in writing within ten (10) calendar days of the invoice date, identify the cause of the disagreement, and pay when due that portion of the invoice that is not in dispute. In the event that KTL and Client cannot resolve the dispute regarding the invoiced amount within thirty (30) days after receipt by KTL of the notice of disagreement by Client, the dispute will be subject to the Dispute Resolution provision of this Agreement.
5.3. Interest – Client will pay an additional charge of one (1) percent per month, or the maximum percentage allowed by law, whichever is lower, of the overdue amount for any payment received by KTL more than thirty (30) calendar days from the date of the invoice, except any portion of the invoiced amount in dispute and resolved in favor of Client.
5.4. Suspension/Termination of Services for Non-Payment – If any invoice amount is not paid within thirty (30) calendar days after the date of the invoice, KTL will have the right, after giving seven (7) days written notice, to suspend all Services on the Project until all accounts (including charges and accrued interest) have been paid. If any overdue amount is not paid within forty-five (45) calendar days after the date of the invoice, KTL will have the right to terminate this Agreement. Any attorney fees, court costs, collection fees or other costs incurred in collecting any delinquent amounts will be paid by Client.
6.1.1. For the purpose of this provision, confidential information will be proprietary business information or trade secrets designated in writing to be confidential.
6.1.2. KTL and Client will maintain as confidential any confidential information provided by the other Party, as defined in 6.1.1. This provision shall not apply to information that (1) is already known to the recipient as shown by written records in its possession at the time such information is received; (2) is already part of the public domain at the time of disclosure, or subsequently becomes part of the public domain through no fault of the recipient; (3) becomes available to the recipient from a third party who is not under obligation to the recipient with respect thereto; or, (4) is independently developed by an employee or consultant of the recipient who had no knowledge of or access to the information.
6.1.3. Each Party may disclose confidential information if the confidential information (1) is required to be disclosed by law, subpoena, order of a court or governmental regulatory agency, or other legal process provided that the disclosing Party gives the other Party reasonable notice and opportunity to challenge the requirement to disclose; (2) is disclosed to a Party’s contractor, subcontractor, consultant, agent, or employee who has signed a nondisclosure agreement; (3) is disclosed to a third party who has signed a nondisclosure agreement, but only if both KTL and Client agree to such disclosure; (4) is disclosed to avoid a risk of imminent harm to persons, property, or the environment; or (5) is disclosed to protect either Party from criminal or civil liability under applicable law.
6.2. Use of Project Information – Client agrees that KTL may use Client’s name and a general description of the Project as a reference for other prospective clients, provided that no confidential information is disclosed.
7. OWNERSHIP OF DOCUMENTS
7.1. Documents – Documents generated by KTL are instruments of Service and will remain the property of KTL. KTL will provide a copy of those deliverables specified in the Proposal.
7.2. Use – Any documents generated by KTL are for the exclusive use of Client, and any use by third parties or use beyond the intended purpose of the document, will be at the sole risk of Client, unless otherwise agreed upon by KTL in writing.
8. ALLOCATION OF RISK
8.1. Insurance – KTL agrees to purchase and maintain at its own expense general liability insurance, professional liability insurance, and automobile liability insurance. Certificates of insurance will be provided to Client upon request in writing. KTL agrees to purchase additional insurance as requested by the Client (presuming such insurance is available to KTL) provided the premiums for such additional insurance are reimbursed by the Client.
8.2. Indemnification – Client and KTL agree that each Party will be responsible for claims, suits, damages, and losses to the extent caused by their own negligence or willful misconduct. Client agrees to defend and hold harmless KTL from claims, damages, suits, and losses by third parties, except to the extent caused by KTL.
Client releases KTL from any claim for damages resulting from or arising out of any pre-existing environmental conditions at the site where the work is being performed.
8.3. Limitation of Liability – Unless otherwise agreed to in the Proposal, KTL’s total liability will not exceed the greater of:
- KTL’s charges for the Services under the Proposal; or
- Fifty thousand dollars ($50,000).
8.4. Mediation – In an effort to resolve any conflicts that arise during or following the completion of the Project, the Client and KTL agree that all disputes between them arising out of or relating to this Agreement shall be submitted to nonbinding mediation unless the parties mutually agree otherwise.
9.1. Termination – This Agreement may be terminated by either Party upon ten (10) days written notice for (1) failure of the other Party to substantially perform its responsibilities under this Agreement, (2) substantial violation of any provision of this Agreement, or (3) discovery of conditions that differ materially from those ordinarily found to exist in, or generally recognized as inherent in the work contemplated to be performed under this Agreement. In the event of termination, KTL will be paid on a time and expenses basis at KTL’s standard rates for services performed prior to the termination notice date plus reasonable termination expenses, including the cost of completing analyses, records, and reports necessary to document job status at the time of termination, and the cost to bring any site work to a safe and stable condition. KTL will also be reimbursed for reasonable costs associated with untimely demobilization and reassignment of personnel and equipment.
10. THIRD PARTIES
10.1. Successors and Assignees – This Agreement will be binding on KTL, its subsidiaries, Client, and their successors, trustees, legal representatives, and assigns. Neither Party may assign or transfer any rights, responsibilities, or interest in this Agreement without the written consent of the other Party and any attempt to do so without such consent will be void.
10.2. Subcontractors – Nothing in this section will prevent KTL from employing subcontractors or consultants to assist in the performance of Services under this Agreement.
11.1. Severability – If any provision of this Agreement is determined to be void or unenforceable by a court, all remaining provisions will continue to be valid and enforceable. The court will reform or replace any void or unenforceable provision with a valid and enforceable provision that comes as close as possible to expressing the intention of the void or unenforceable provision.
11.2. Governing Law – This Agreement will be governed by the laws of the State of Georgia.
If there are any questions regarding KTL’s Terms and Conditions, contact us directly.
Last Edited on 2020-01-17