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CONSTRUCTION SERVICE AGREEMENT - TERMS AND CONDITIONS Page 3 of 4
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<br />ACS 403C (01/25) AMERICAN ENGINEERING TESTING, INC.
<br />SECTION 9 - DELAYS
<br />If delays to AET's Services are caused by Client or Owner, other parties, strikes, natural causes, pandemic, weather, or other items beyond AET's control,
<br />a reasonable time extension for performance of the Services shall be granted, and AET shall receive an equitable fee adjustment.
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<br />SECTION 10 - PAYMENT, INTEREST AND BREACH
<br />10.1 - Invoices are due net thirty (30) days from the date of receipt of an undisputed invoice. Invoices will be paid without reductions for bond or
<br />retention. Client will inform AET of invoice questions or disagreements within fifteen (15) days of invoice date; unless so informed, invoices are deemed
<br />correct.
<br />10.2 – Invoices remaining unpaid for sixty (60) days shall constitute a material breach of this Agreement, permitting AET, in its sole discretion and without
<br />limiting any other legal or equitable remedies for such breach, to terminate performance of this Agree ment and be relieved of any associated duties to
<br />the Client or other persons. Further, AET may withhold from Client data and reports in AET’s possession. If Client fails to c ure such breach, all reports
<br />associated with the unpaid invoices shall immediately upon demand be returned to AET and Client may neither use nor rely upon such reports or the
<br />Services.
<br />10.3 – AET reserves the right to pursue any unpaid invoice utilizing available remedies at law. AET explicitly reserves its Mechanic Lien or Bond Claim rights
<br />for nonpayment of an undisputed invoice. Client is responsible for paying AET expenses and attorney fees related to collection of past due invoices.
<br />10.4 – AET reserves the right to charge a 2.5% fee on any payment made using a credit card or debit card.
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<br />SECTION 11 - CHANGE ORDERS
<br />AET's proposal associated with this project may provide an estimated cost for the work. If the proposal amount is a time and material estimate, or if
<br />changes occur affecting the project scope, estimated quantities, project schedule or other unforeseen conditions, AET will co mmunicate with Client and
<br />request a change order. However, nothing in this agreement shall be construed in any way as a waiver of payment by Client to AET for Services authorized
<br />under this agreement. Approval of a change order may be in writing, by electronic communication, or any directive for additional Services.
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<br />SECTION 12 - MEDIATION
<br />12.1 - Except for enforcement of AET’s rights to payment for Services rendered or to assert and/or enforce its lien rights, includin g without limitation
<br />assertion and enforcement of mechanic’s lien rights and foreclosure of the same, Client and AET agree that a ny claim, dispute or other matter in question
<br />arising out of or related to this Agreement shall be subject to mediation as a condition precedent to arbitration or the inst itution of legal or equitable
<br />proceedings by either party; provided however that if either party fails to respond to a request for mediation within sixty (60) days, the party requesting
<br />mediation may without further notice, proceed to arbitration or the institution of legal or equitable proceedings.
<br />12.2 - Mediation shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association. Request for mediation
<br />shall be in writing and the parties shall share the mediator’s f ee and any filing fees equally and each party shall pay their own legal fees. The mediator
<br />shall be acceptable to both parties and shall have experience in commercial construction matters.
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<br />SECTION 13 - LITIGATION REIMBURSEMENT
<br />Except for matters relating to non-payment of fees, which is governed by Section 10 hereof, payment of attorney’s fees and costs associated with lawsuits
<br />or arbitration of disputes between AET and Client, which are dismissed or are judged substantially in either party's favor, shall be paid by the non-prevailing
<br />party. Applicable costs include, but are not limited to, attorney and expert witness fees, court costs, and other direct costs.
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<br />SECTION 14 - MUTUAL INDEMNIFICATION
<br />14.1 - Subject to the limitations contained in Sections 14 and 17, AET agrees to indemnify Client from and against damages and costs to the extent caused
<br />by AET's negligent performance of the Services.
<br />14.2 - Client agrees to indemnify AET from and against damages and costs to the extent caused by the intentional acts or negligence of the Client, Owner,
<br />Client's contractors and subcontractors or other third parties.
<br />14.3 - If Client has an indemnity agreement with other persons or entities relating to the project for which AET’s Services are perf ormed, the Client shall
<br />include AET as an Additional Insured.
<br />14.4 - AET's indemnification to the Client, including any indemnity required or implied by law, is limited solely to losses or damag es caused by its failure
<br />to meet the standard of care and only to the extent of its negligence.
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<br />SECTION 15 - NON-SOLICITATION
<br />Each party to this Agreement (a “Party”) agrees that it will not encourage, induce, or actively solicit any employee of the o ther party to leave their
<br />employment for any reason, provided that neither Party is precluded from (a) hiring any such employee who has been terminated by a Party or its
<br />subsidiaries prior to commencement of employment discussions between a Party and such employee, or (b) soliciting any such em ployee by means of a
<br />general advertisement or through an employment agency that does not specifically pursue the employee, or (c) hiring employees or former employees
<br />of the other Party who contact the Party on its own accord. This Non-Solicitation provision shall be effective and enforceable for six (6) months following
<br />termination of this Agreement.
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<br />SECTION 16- MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES
<br />Except as specifically set forth herein and to the extent permitted by applicable law, Client and AET waive against each other, and each other’s officers,
<br />directors, members, subcontractor, agents, assigns, successors, partners, and employees any and all claims for or entitlement to special, incidental, indirect,
<br />punitive, or consequential damages arising out of, resulting from, or in any way related to the Services provided by AET under this Agreement. This mutual
<br />waiver of consequential damages includes, but is not limited to, the following: loss of profits; loss of revenue; rental costs/expenses incurred; loss of income;
<br />loss of use of property, equipment, materials or services; loss of opportunity; loss of rent; loss of good will; loss of financing; loss of credit; diminution of value;
<br />loss of business and reputation; loss of management or employee productivity or the services of such persons; increased financing costs; cost of substitute
<br />facilities; cost of substitute goods/property/equipment; cost of substitute services; and/or cost of capital. This mutual waiver is applicable, without limitation,
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