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Such expenses shall include the cost, at Kimley-Horn's normal hourly billing rates, of the time devoted to
<br />such proceedings by its employees.
<br />The Client agrees that the payment to Kimley-Horn is not subject to any contingency or condition. Kimley-
<br />Horn may negotiate payment of any check tendered by the Client, even if the words "in full satisfaction" or
<br />words intended to have similar effect appear on the check without such negotiation being an accord and
<br />satisfaction of any disputed debt and without prejudicing any right of Kimley-Horn to collect additional
<br />amounts from the Client.
<br />5) Use of Deliverables. All documents, data, and other deliverables prepared by Kimley-Horn are related
<br />exclusively to the services described in this Agreement and may be used only if the Client has satisfied all
<br />of its obligations under this Agreement. They are not intended or represented to be suitable for use or reuse
<br />by the Client or others on extensions of this project or on any other project. Any modifications by the Client
<br />to any of Kimley-Horn's deliverables, or any reuse of the deliverables without written authorization by Kimley-
<br />Horn will be at the Client's sole risk and without liability to Kimley-Horn, and the Client shall indemnify, defend
<br />and hold Kimley-Horn harmless from all claims, damages, losses and expenses, including but not limited to
<br />attorneys' fees, resulting therefrom. Kimley-Horn's electronic files and source code remain the property of
<br />Kimley-Horn and shall be provided to the Client only if expressly provided for in this Agreement. Any
<br />electronic files not containing an electronic seal are provided only for the convenience of the Client and use
<br />of them is at the Client's sole risk. In the case of any defects in the electronic files or any discrepancies
<br />between them and the hardcopy of the deliverables prepared by Kimley-Horn, the hardcopy shall govern.
<br />6) Intellectual Property. Kimley-Horn may use or develop its proprietary software, patents, copyrights,
<br />trademarks, trade secrets, and other intellectual property owned by Kimley-Horn or its affiliates ("Intellectual
<br />Property") in the performance of this Agreement. Intellectual Property, for purposes of this section, does not
<br />include deliverables specifically created for Client pursuant to the Agreement and use of such deliverables
<br />is governed by section 5 of this Agreement. Unless explicitly agreed to in writing by both parties to the
<br />contrary, Kimley-Horn maintains all interest in and ownership of its Intellectual Property and conveys no
<br />interest, ownership, license to use, or any other rights in the Intellectual Property to Client. Any
<br />enhancements of Intellectual Property made during the performance of this Agreement are solely owned by
<br />Kimley-Horn and its affiliates. If Kimley-Horn's services include providing Client with access to or a license
<br />for Kimley-Horn's (or its affiliates') proprietary software or technology, Client agrees to the terms of the
<br />Software License Agreement set forth at https://www.kimley-horn.com/khts-software-license-agreement
<br />("the License Agreement") which terms are incorporated herein by reference.
<br />7) Opinions of Cost. Because Kimley-Horn does not control the cost of labor, materials, equipment or services
<br />furnished by others, methods of determining prices, or competitive bidding or market conditions, any opinions
<br />rendered as to costs, including but not limited to the costs of construction and materials, are made solely
<br />based on its judgment as a professional familiar with the industry. Kimley-Horn cannot and does not
<br />guarantee that proposals, bids or actual costs will not vary from its opinions of cost. If the Client wishes
<br />greater assurance as to the amount of any cost, it shall employ an independent cost estimator. Kimley-Horn's
<br />services required to bring costs within any limitation established by the Client will be paid for as Additional
<br />Services.
<br />8) Termination. The obligation to provide further services under this Agreement may be terminated by either
<br />party upon seven days' written notice in the event of substantial failure by the other party to perform in
<br />accordance with the terms hereof, or upon thirty days' written notice for the convenience of the terminating
<br />party. Kimley-Horn shall be paid for all services rendered and expenses incurred to the effective date of
<br />termination, and other reasonable expenses incurred by Kimley-Horn as a result of such termination.
<br />9) Standard of Care. The standard of care applicable to Kimley-Horn's services will be the degree of care and
<br />skill ordinarily exercised by consultants performing the same or similar services in the same locality at the
<br />time the services are provided. No warranty, express or implied, is made or intended by Kimley-Horn's
<br />performance of services, and it is agreed that Kimley-Horn is not a fiduciary with respect to the Client.
<br />10) LIMITATION OF LIABILITY. In recognition of the relative risks and benefits of the Project to the Client and
<br />Kimley-Horn, the risks are allocated such that, to the fullest extent allowed by law, and notwithstanding any
<br />other provisions of this Agreement or the existence of applicable insurance coverage, that the total liability,
<br />in the aggregate, of Kimley-Horn and Kimley-Horn's officers, directors, employees, agents, and
<br />Rev 07/2024
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