ENGINEERING EXPRESS® STANDARD TERMS & CONDITIONS
BILLING, PAYMENTS, & DUE DATES
ALL PAYMENTS FOR SERVICES ARE DUE UPON RECEIPT OF FINAL WORK UNLESS AGREED OTHERWISE IN WRITING.
RETAINERS AS REQUESTED AND AGREED ARE DUE TO COMMENCE WORK. THE START DATE SHALL NOT COMMENCE UNTIL A SIGNED CONTRACT AND RETAINER IS RECEIVED. A DELAYED START DATE SHALL ALTER THE COMPLETION DATE ACCORDINGLY.
INVOICES ARE GENERATED WHEN EITHER OF THE FOLLOWING CRITERIA IS MET:
- SUBSTANTIAL COMPLETION OF THE WORK PRODUCT PER THE WRITTEN AGREEMENT (THIS INCLUDES FINAL DRAFTS FOR CLIENT APPROVAL)
- IF THE CLIENT DOES NOT RESPOND TO E-MAIL OR PHONE COMMUNICATION REGARDING THE PROJECT IN PROGRESS WITHIN FIFTEEN (15) WORKING DAYS. REMINDERS WILL BE SENT PRIOR TO THE PROJECT BEING BILLED TO DATE. THE PROJECT WILL THEN BE CONSIDERED CLOSED AND PAYMENT SHALL BE DUE.
- Payment as agreed to in the written agreement is not contingent upon receipt of any building permit or any related approvals of work.
- Engineering Express® (hereinafter referred to as “The Company” inclusive of all engineers and employees) will perform the services defined in this proposal (“The Agreement”) and shall invoice the contracted party (hereinafter referred to as “The Client”) in accordance with the compensation section of the Agreement. Any estimate of cost to The Client as stated in the Agreement or any of the accompanying schedules shall not be considered as a fixed price, but only an estimate (unless otherwise specifically stated in the contract Agreement). By executing an agreement, The Client agrees to be invoiced for any additional services at this company’s standard rates (or as mutually agreed upon), including but not limited to, re-reviews, re-inspections, re-tests, stand-by time, scope changes, services outside normal business hours or any services provided beyond the estimated project duration including Client requested revisions.
- The Client will be invoiced immediately following a performed service (whether drafts or final work product is produced) or unless agreed otherwise in writing. Payment is due upon completion, or if a credit application for The Client is on file and approved by The Company, within thirty (30) calendar days after the receipt of invoice. Interest charges will start to accrue forty-five (45) calendar days from the invoice date. The Client agrees to pay an interest charge equal to the lesser of one and one-half percent (1½%) per month, or the maximum rate allowed by law, on past due accounts. Any attorney’s fees, collection fees or other costs incurred in collecting any delinquent amount shall be paid by The Client. The Client agrees to pay The Company for its services in accordance with the written Agreement, regardless of whether or not he has been paid by his customer or the engineering work produces results to The Client’s satisfaction or expectations.
- Work Product, herein described as “deliverables” including photocopying, blueprinting, postage, and other reimbursable expenses are IN ADDITION TO the estimated project fee, billed at the rates in The Company’s fee schedule referenced above, with the exception of deliverables included within the proposal.
- Unless otherwise specified, ‘days to complete’ as specified in all proposals for work are defined in working business days exclusive of legal holidays.
- To the extent these General Terms and Conditions are part of a proposal for services, the proposal shall be valid for ten (10) working days unless otherwise stated. Once a proposal is accepted, these General Terms and Conditions shall apply to all services performed thereafter and shall survive any termination of the Agreement or completion of services. Execution of the proposal for work constitutes authorization to proceed with work.
- Initial coordination of the agreed project will begin upon receipt of this signed Agreement and any retainer amount noted herein. The Company’s agreed services will begin upon our receipt of all necessary supporting documentation in a succinct format provided by The Client. No time is allotted for FTP site research, download, or similar inquiry of full project plans unless specified herein; only the scope of work for which we are hired will be reviewed or additional fees will be incurred as per the agreement. The Company reserves the right to request additional compensation resulting from unforeseen project conditions and inaccurately supplied data which alter any engineering work we provide based on originally quoted work. The Company will submit a change order and description of required project revisions to The Client for approval prior to commencing any work which exceeds the original contract amount.
- Although The Company will make its best efforts to meet the estimated completion date for this project, the anticipated completion date is not guaranteed nor a material term of this contract and is provided as a guide only based upon work of similar nature. The actual completion date may vary, possibly significantly from the estimated completion date, which may be affected by a number of variables. The Company shall promptly inform The Client of any revisions to the estimated completion date based upon the progress of the work involved. Timeframe of approval by the Authority Having Jurisdiction receiving our plans can vary and is not included in quote lead time or the responsibility of The Company in any way.
- During the course of the project, any missing information that impedes the design process and cannot be expeditiously obtained from The Client will put a temporary hold on the project. Once The Client provides this information, The Client will receive notification if the additional data provides enough information to continue. If not, The Client shall investigate further until satisfaction by The Company. If the data is sufficient, The Company will notify The Client and simultaneously place the project onto the current office work schedule and the estimated business days to complete shall reset from that day forward. Once The Client takes possession of the work product, the receipt of these items shall constitute acceptance of our scope of work if not contested within 24 hours. A PDF can be provided upon request, and is recommended, as all submittals are final upon delivery.
- NO REVISIONS WILL BE MADE WITHOUT AN ADDITIONAL AGREEMENT WHICH MAY RESULT IN ADDITIONAL FEES.
- All work product (including AutoCAD, Excel, and/or other electronic files) created for this project remain the property of The Company and are not offered to anyone for use unless approved in writing by The Company, or otherwise specified under separate Agreement. Limited hard copies of all submitted documents will be provided to The Client upon request as reasonable to obtain permit unless otherwise agreed.
- The Company’s work product will be designed for the design building codes in effect per the start date or per the agreement The Company reserves the right to require modifications to engineering approvals should new code requirements, industry interpretations, project information, or the standard of care for the design in question arises. Any modifications required due to Code changes beyond agreed or as stated herein are not included in the proposed fee and shall be at additional cost to The Client unless otherwise specified.
- The Company shall not be held responsible for construction means, methods, techniques, sequences, procedures, or for the safety precaution and programs in connection with the project, unless specifically retained to do so.
- Client agrees that work product provided by The Company may be provided in similar form to other clients of The Company, without notification, unless otherwise specified in writing under the agreed quotation for work. Additionally, The Company reserves the right to submit the work product to other parties if deemed necessary by The Company.
- Although The Company will make its best efforts to meet the anticipated or proposed design of a project, preliminary results are not guaranteed for permitting nor a material term of this contract and are provided as a guide only based upon work of a similar nature. The Company will make its best effort to inform The Client of any revisions to the design based upon the progress of the work involved. The actual final design may vary from the proposed design which may be affected by a number of variables.
WARRANTY OF WORK
- Service performed by The Company under the Agreement will be conducted in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions in the location where the services are to be performed. No other warranty, expressed or implied, is made, including without limitation, any warranty of fitness for a particular purpose. In no event, will The Company be responsible for delays in the work which is beyond our reasonable control or caused by The Client or its agents, consultants, contractors or subcontractors. Stand-by or non-productive time for delays in The Company’s agreed work caused by The Client or its agents, consultants, contractors or subcontractors may be charged to The Client unless provided for as a separate item in the Agreement or otherwise as mutually agreed upon in writing.
- The Client warrants and represents that the product, system or design provided for engineering does not violate or otherwise infringe upon any patent, trademark, copyright, or ownership or control by another engineer architect, designer or entity, whether under federal or state statutory or common law principals. Notwithstanding such, the parties acknowledge that the duties of The Company under this contract do not include The Client’s making, using or selling of the product, design, or system pursuant to those interpretations under applicable patent, trademark and copyright law.
- The Company will not be held liable for problems that may occur if The Company’s recommendations, conclusions, professional opinions are not followed or any patent or copyright has been infringed upon. The Client shall be responsible for all legal and appellate fees incurred to defend The Company in this regard.
CERTIFICATE OF MERIT
- The Client shall make no claim for professional negligence, either directly or by way of a cross complaint against any employee of The Company unless The Client has first provided this company with a signed and sealed, written certification executed by an independent consultant currently practicing in the same discipline as the work performed and licensed in the state which work was performed. This certification shall: a) contain the name and license number of the certifier; b) specify the acts or omissions that the certifier contends are not in conformance with the standard of care for the engineer performing professional services under similar circumstances; and c) state in detail the basis for the certifier’s opinion that such acts or omissions do not conform to the standard of care. This certificate shall be provided to this office not less than thirty (30) calendar days prior to the presentation of any claim or the institution of any arbitration or judicial proceeding. This Certificate of Merit clause will take precedence over any existing state law in force at the time of the claim or demand for arbitration. Any breach in these terms are subject to civil action by The Company against the Client.
LIMITATION OF LIABILITY
- In recognition of the relative risks, rewards, and benefits of the work performed The Company for The Client, the risks have been allocated such that the Client agrees that, to the fullest extent permitted by law, The Company’s total liability to The Client for any and all injuries, claims, losses, expenses, damages, or claim expenses arising out of the Agreement from any cause or causes, shall not exceed the lesser of $10,000 or The Company’s fee for the project in question. Such causes include, but are not limited to The Company’s negligence, errors, omissions, strict liability, breach of contract, or breach of warranty. Professional negligence as required by law is not included with this limitation.
- The Client shall, to the fullest extent permitted by law, indemnify and hold harmless The Company, his or her officers, directors, employees, agents, and sub consultants from and against all damage, liability and cost, including reasonable attorney’s fees, defense costs, and appellate fees, arising out of or in any way connected with the performance by any of the parties involved with the use of The Company’s engineering services and under the Agreement, excepting only those damages, liabilities, or costs attributable to the sole negligence or willful misconduct of The Company.
- The Company shall not be required to execute any document that would result in its certifying, guaranteeing, or warranting the existence of conditions whose existence The Company cannot ascertain. In the event of a potential dispute, The Client agrees to produce a certificate of merit demonstrating by certification from another engineer licensed and experienced in the type of work in question whether a case against The Company has legal merit and if there exists a reasonable probability that The Company has deviated from the applicable standard of care and caused harm to The Client. If no certificate of merit is produced, The Company shall be granted a motion for summary judgment.
- In the event that The Company initiates legal proceedings in order to enforce the collection of any unpaid sums due under this contract or any other breach by The Client, the prevailing party shall be entitled to an award of its reasonable attorney fees and costs, which shall include all attorney fees and costs incurred pursuant to any appeal or bankruptcy proceeding. The venue and jurisdiction for any such legal action under this contract shall be exclusively Broward County, Florida. This contract shall be interpreted under the laws of the State of Florida. THE PARTIES HEREBY WAIVE THE RIGHT TO A JURY TRIAL FOR ANY DISPUTES ARISING FROM THE AGREEMENT.
- The Agreement expresses the complete and final understanding between the parties with respect to the subject matter hereof and is applicable, by reference, to all Agreements executed as of the date noted above until amended or superseded at a later date. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of the Agreement will continue in full force and effect. Any notices pursuant to the Agreement shall be sent to the addresses as set forth at the beginning of the Agreement and shall be solely in writing, sent certified mail, return receipt requested and shall be effective whether such return receipt is accepted or rejected by receiver.
- Nothing contained in the Agreement shall create contractual or legal relationship with, right in favor of, or a cause of action in favor of any third party against The Company. All services under the Agreement are being performed solely for The Client’s benefit, and no other party or entity shall have any rights or a claim against The Company because of the Agreement or the performance of nonperformance of services hereunder. This provision may be waived only by express written consent of The Company.
- The Agreement may be terminated by either party upon ten (5) working days written notice in the event of substantial failure by the other party to perform in accordance with the terms of the Agreement. Such termination shall not be effective if that substantial failure has been remedied before expiration of the period specified in the written notice. In all events of termination, the Company shall be paid for services performed up to and through the date of termination. In the event of termination, or suspension for more than (5) working days, prior to completion of all reports contemplated by the Agreement, The Company may complete such analyses and records as are necessary to complete its files and may also complete a report on the services performed to date of notice of termination or suspension. The expenses of termination or suspension shall include all direct costs of The Company in completing such analyses, records, and reports and shall be due and payable by Client promptly upon our invoice.
- Client acknowledges that in entering into the Agreement, The Company has relied on the full performance by The Client and the receipt of full contract price. The Client shall be the responsible party to ensure all required data is submitted to The Company in a timely manner in order for The Company to fulfill the contract obligation.
- The Company reserves the right to terminate an agreement for excessive delays in client cooperation, non-performance of the client, or inability to successfully complete a design or render a professional opinion.
Contractual Limitation on Liability Statement: Per Florida Statute 558.0035(1c) an individual employee or agent of The Company shall not be held liable for negligence in connection with the agreement.