STRUCTURAL ENGINEERING SERVICES AGREEMENT

THIS AGREEMENT made this _______ Day of ___________ , 20____ by and between

THE CLIENT: ________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

Address:

Telephone #:

E-Mail Address:

AND THE SERVICE PROVIDER: ***service Provider details***

Address: *** service Provider details***

Telephone #: *** service Provider details***

E-Mail Address: *** service Provider details***

SERVICE PROVIDER’S License *** service Provider details***

WHEREAS, the Client desires to hire the Service Provider to provide structural engineering services including inspection, reports and design services; and,

WHEREAS, the Service Provider desires to provide the services upon the terms and conditions set forth hereinafter.

NOW, THEREFORE, in consideration of the foregoing, and in consideration of the mutual obligations and undertakings set forth hereinafter, the Service Provider and the Client agree as follows: –

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1. Definitions and Interpretation

1. In this Agreement:
2. “Agreement” means this Agreement, its Schedules, the Contract Drawings, the Order, the Change Order the Specifications, Scope of Works, and other documents (save as may otherwise be varied by this Agreement);
3. “Order” means the Client’ s written instructions specifying the Works that will be carried out;
4. “Parties’ Representatives” shall mean the person or persons duly authorized by the Party in writing to act on its behalf;
5. “Practical Completion” means that the Works have been substantially completed in all material respects such that it is capable of being taken over and used by the Client;
6. “Subcontractor” means any person named in the Agreement as a subservice Provider for a part of the Works or any person to whom a part of the Works has been subcontracted with the consent of the Client; and
7. “Works” means the services to be provided by the Service Provider including inspection services, reports services and design services.

1. In this Agreement, unless the context otherwise requires, any reference to:
   1. the singular includes the plural and vice versa;
   1. a person includes reference to a body corporate or other legal entity;
   1. any written law includes that law as amended or re-enacted from time to time;
   1. any Agreement or other document includes that Agreement or other document as varied or replaced by the Parties in writing from time to time;
   1. a clause is to the relevant clause of this Agreement;
   1. any Party includes that Party’s successors and assigns.
   1. Clause headings are inserted for convenience only and shall be ignored in construing this Agreement.
   1. The identification of certain breaches in this Agreement as being “Material” does not indicate that only those breaches are material.
   1. Where the Agreement provides for the giving or issue of any notice, consent, approval certificate or determination, it shall be in writing and the words notify, certify or determine.
   1. Clause headings are inserted for convenience only and shall be ignored in construing this Agreement.
   1. The identification of certain breaches in this Agreement as being “Material” does not indicate that only those breaches are material.  
   1. Where the Agreement provides for the giving or issue of any notice, consent, approval certificate or determination, it shall be in writing and the words notify, certify or determine shall be construed accordingly.  Routine communications relating to the performance of this Agreement may be conducted by electronic mail.
2. application of terms and Service Provider UNDERSTANDING
   1. Save as may otherwise be provided in this Agreement the terms and conditions set out in this Agreement are the only terms on which Service Provider is prepared to deal with the Client and they shall govern the relationship between the Parties to the entire exclusion of all other Agreements entered into with Service Provider in relation to the provision of the Works.
   1. If any ambiguity is found in the various documents forming this Agreement, Service Provider shall issue any necessary clarification or instruction.  
   1. All documents annexed to this Agreement shall be subject to the terms under this Agreement, provided that the Parties append their signatures on the documents.
3. COMMENCEMENT AND DURATION
   1. This Agreement shall come into force on the date of issuance of the Order, (“Commencement Date”) and shall remain in force for a period of ___________________ days/months (“Agreement Duration”) unless the Agreement is earlier terminated in accordance with the provisions of this Agreement. Subject to successful performance of the Contract the parties may enter into negotiations to extend the duration of the Agreement on such terms and conditions that may be mutually agreed by the Parties.
4. Obligations and responsibilities of The client and Service Provider
   1. THE CLIENT’S OBLIGATIONS
      1. Within ten (10) days after the date of execution of this Agreement, the Client shall deliver to the Service Provider documents that are reasonably necessary in order for the Service Provider to commence work under this Agreement.
      1. Within ten (10) days after the date of execution of this Agreement, the Client shall provide to the Service Provider access to any facility or venue necessary in order for the Service Provider to commence work under this Agreement.
      1. The Client shall refrain from interfering with the Service Provider’s employees and sub-contractors.
      1. The Client shall pay to the Service Provider for services rendered in accordance with Clauses 5, 6 and 7.

• SERVICE PROVIDER’S GENERAL OBLIGATIONS
•  
• • • During the subsistence of this Agreement, Service Provider undertakes that it will comply with all of its obligations under this Agreement including, without limitation and will observe the best business practices.
    • The Service Provider, its employee’s, representatives, agents and sub-contractor will at all times promote and uphold the good name of the Client.
    • Service Provider warrants that the Works shall be performed:
      • by appropriately qualified and trained personnel, with due care and diligence and to such high standard of quality consistent with applicable industry standards and as it is reasonable the Client to expect in all the circumstances;
      • in accordance with the provisions of this Agreement and such other instructions as may be given by the Client; and
      • in accordance with all applicable laws and consents.  

• FEES and Payment
  • Unless otherwise agreed, the Client and the Service Provider hereby agree payment for performance of this Contract shall be determined as follows:
    • All inspection services shall accrue a cost of $150 per hour from the date of commencement of work. The fee shall become payable upon execution of this Agreement, or on the date the inspection is to take place.
    • All design services shall accrue a cost of $125 per hour from the date of commencement of work. The fee shall become payable upon notice of completion of work.
    • All reports shall be charged by agreement of both Parties. The fee shall become payable upon notice of completion of work.
    • Should any of the above works require travelling by the Service Provider, such travel shall accrue a cost of $125 per hour.

• PROGRESS PAYMENTS
  • The Client shall pay all progress payments to the Service Provider, upon notice issued by the Service Provider.
  • The Service Provider shall deliver to the Client an invoice every two (2) weeks representing the Project Cost for the preceding two weeks.
  • The Client shall pay each invoice, remitting the entire Invoice Amount to the Service Provider, within 5 calendar days of the receipt of the invoice. If the Client does not pay the Service Provider within five (5) business days after receipt of invoice, then the Service Provider may discontinue services until payment has been made by the Client.
  • In the event of discontinuance of services, the term of this contract shall equally be extended by the number of days that service has been discontinued.
  • The Client and the Service Provider understand and agree that any invoice amount not paid for a period in excess of ten (10) days from the due date constitutes a material breach of this contract, and the Service Provider shall have the option to terminate this Agreement.
• AccePtance OF WORKS
  • When in the opinion of Service Provider, the whole of the Works is Practically Complete, the Service Provider shall issue a notice of completion and a final invoice to the Client.  
  • Upon receipt of notice and invoice, the Client shall within 5 days inspect the pay to the Service Provider any outstanding fees.
  • If the Service Provider is satisfied that all fees have been paid by the Client, the Service Provider shall hand over all completed works to the Client.

• LIABILITY
  • The Client shall defend, indemnify and hold harmless Service Provider, its employees, agents and representatives from and against any and all losses, liability claims, damages, injuries, demands, actions and causes of action whatsoever, arising out of or related to any loss, damage or injury claimed by persons that may arise from the performance of the Works and use of the Site where the Works are being carried out, provided that such loss or damage was not caused by the fault or gross negligence and willful misconduct of the Client its employees, agents and representatives.
  • The Client assumes all legal fees and disbursements arising out of and in connection with the Works.
  • Service Provider assumes no liability or responsibility for any acts or omissions of the Client, its employees, agents and representatives.
• default
  • In the event that the Service Provider or the Client fails to perform any material term or condition of this Agreement, and the failure to perform continues for a period of seven (7) days after receipt of written notice of failure of performance from the other party, such failure to perform shall constitute a material breach of this Agreement, which shall entitle the party aggrieved by such failure to perform to terminate this Agreement and pursue all remedies available at law or in equity.
• Termination
  • Termination by Service Provider

Service Provider shall be entitled to terminate this Agreement immediately without prejudice to any other remedy at its disposal by giving written notice to the Client, if the Client:

• Fails to pay progress payment and final payments due within ten (10) days from date of invoice; and
• Engages in improper and unlawful use of the Works;

1. Termination by the Client

The Client shall be entitled to terminate this Agreement immediately without prejudice to any other remedy at its disposal by giving written notice to Service Provider, such termination immediately effective upon the giving of such notice of termination, if:

• Service Provider abandons or (except where required or agreed upon with the Client) suspends the provision of the Works without reason.
• Service Provider has assigned or subcontracted all of the Works without having obtained the prior written consent of the Client.
  • Termination by Either Party

Subject to the provisions of terms of this Agreement, each Party shall be entitled to terminate this Agreement by giving written notice to the other Party such termination immediately effective upon the giving of such notice of termination: –

• if one Party ceases or threatens to cease to carry on its business;
• if a receiver, administrator or similar officer is appointed over all or any part of the assets or undertaking of the other Party;
• if one Party makes any arrangement for the benefit of its creditors;
• if one Party goes into liquidation save for the purposes of a genuine amalgamation or reconstruction;
• in the event of either party being prohibited by any law or official requirement from complying with the terms of this Agreement.
  • Consequence of Termination
    • Upon termination of this Agreement, the Service Provider shall:Stop the Works as specified in the notice; Procure no further materials, services, or facilities, except as necessary to complete the continued portion of the Works as may be permitted under the Notice of Termination;Terminate all Subcontracts to the extent they relate to the work terminated. Take any action that may be necessary for the protection and preservation of the Client’s property and information;
      • Upon termination of this Agreement, the Client shall:
        • Recover possession all property belonging to the Client;
        • Pay to Service Provider any sums due and for services rendered prior to termination;
        • Take any action that may be necessary for the protection and preservation of the Service Provider’s property and information;
      • The termination of this Agreement shall not discharge the liabilities of the defaulting Party.
      • Any Clauses intended by the Parties or this Agreement to survive the termination of this Agreement shall survive the termination of this Agreement by whatever cause.

1. VARIATION to the Agreement 
   1. Either party may request variations to the Agreement.  The Parties shall enter into discussions to agree on any required changes, revised pricing and time for performance.  Such variations will only be effective if agreed in writing by the Parties and recorded.
   1. All changes to the Works shall be reduced to writing and executed by both Parties.
   1. Any additional cost that is assessed to be incurred as a result of the changes to the Works shall be deemed payable by the Client.

1. DISPUTE RESOLUTION (MEDIATION)
   1. If any dispute between the Parties related to this Agreement is not resolved by negotiation, then the dispute shall be mediated. Unless the Parties agree otherwise, the mediation shall be conducted in accordance with the Commercial Mediation Rules of the American Arbitration Association. If the mediation is unsuccessful, then the dispute shall be arbitrated under the rules of the American Arbitration Association.
   1. Pending final settlement or determination of a dispute, the Parties shall continue to perform their subsisting obligation hereunder.

1. Force Majeure
   1. Definition of Force Majeure

For the purposes of this Agreement, “Force Majeure” means an event which could not reasonably have been avoided by a diligent party in the circumstances, which is beyond the reasonable control of a party and which makes a party’s performance of its responsibilities hereunder impossible or so impractical as reasonably to be considered impossible in the circumstances and includes, but is not limited to, war, riots, civil disorder, earthquake, storm, flood or adverse weather conditions, strikes, lockouts or other industrial action, terrorist acts, confiscation or any other action by government agencies.

1. Negligence and intentional acts

Force Majeure shall not include any event which is caused by the negligence or intentional action of a Party or such Party’s subservice Providers or agents or employees, or by a failure to observe good professional practice.

1. Financial constraints

Force Majeure shall not include insufficiency of funds or failure to make any payment required hereunder.

1. Performance excused

The failure of a Party to fulfil any of its obligations hereunder shall not be considered to be a breach of, or default under, this Agreement insofar as such inability arises from an event of Force Majeure, provided that the Party affected by such an event has taken all reasonable precautions, due care and reasonable alternative measures, all with the objective of carrying out the terms of this Agreement.

1. Duty to mitigate

A Party affected by an event of Force Majeure shall take all reasonable measures to remove such Party’s inability to fulfil its obligations hereunder with a minimum of delay.  The Parties shall take all reasonable measures to minimise the consequence of any event of Force Majeure.

1. Notification

A Party affected by an event of Force Majeure shall notify in writing the other Party of such event as soon as possible, and in any event not later than five (5) days following the occurrence of such event, providing evidence of the nature and cause of such event, and shall similarly give notice of the restoration of normal conditions as soon as possible.

1. Consultation

Not later than fourteen (14) days after Service Provider, as a result of an event of Force Majeure, has become unable to discharge a material portion of its obligations, the Parties shall consult with each other with a view to agreeing on appropriate measures to be taken in the circumstances.

1. gENERAl
   1. Cooperation

The Parties recognise that this Agreement cannot reasonably take into consideration all matters or circumstances that may arise during the execution of the Works.  In this regard, should a situation not addressed by this Agreement arise, then the Parties shall cooperate to resolve it bearing in mind the completion timelines for the Works and to develop a mechanism for the resolution of similar issues arising in the course of the execution of the Works.  Any mechanism so developed shall be appended to this Agreement and be adopted as a part of this Agreement.  

1. Confidentiality

The Service Provider shall not at any time disclose, directly or indirectly to any other person whatsoever (including to the public or any section of the public) any information concerning this Agreement or any other information of any nature whatsoever concerning the Client, whether such information or matter is stated to be confidential or not, without the express written permission of the Client.  This covenant is given by Service Provider on its own behalf.  

1. No Waiver

Except where this Agreement provides otherwise, the rights and remedies contained in it are cumulative and not exclusive to rights or remedies provided by law.  The failure by either Party to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.

1. Severability

If any provision of this Agreement is declared by any judicial or other competent to be void, voidable, illegal or otherwise unenforceable, the Parties shall amend that provision in such reasonable manner as achieves the intention of the Parties without illegality or at the discretion of Service Provider, it may be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.

1. Notices

Any notice, request, instruction, or other document given hereunder to either party shall be effective upon receipt thereof. All notices, requests, instructions, or other documents given hereunder to either party shall be in writing and shall either be delivered personally by hand delivery or shall be sent by certified mail, return receipt requested, to the address of the party as set forth on Page 1 of this Agreement.

1. Change of address

Either Party may provide changes in the above addressees by notice in writing given to the other Party as aforesaid.

1. Costs

Each party shall bear its own costs incurred in the negotiation, preparation and execution of this Agreement.

1. Governing Law

The construction, validity and performance of this Agreement shall be governed in all respects by the Laws of the State of Florida within the United States.

1. SERVICE PROVIDER’S LIMITED WARRANTY.  LIMITATION OF REMEDIES. DISCLAIMER AND EXCLUSION OF ALL OTHER WARRANTIES

TO THE MAXIMUM EXTENT PERMITTED BY LAW, SERVICE PROVIDER AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL, OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE WORKS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY. IN NO EVENT WILL SERVICE PROVIDER’S AND ITS AFFILIATES TOTAL CUMULATIVE LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT EXCEED US$100.00. THE NATURE OF THE LIABILITY OR THE NUMBER OF CLAIMS OR SUITS SHALL NOT ENLARGE OR EXTEND THIS LIMIT. These exclusions and limitations of liability shall apply regardless if Service Provider or its affiliates have been advised of the possibility of such damages, and regardless of whether a remedy fails its essential purpose. These exclusions and limitations of liability form an essential basis of the bargain between the parties, and, absent any of these exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.

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  IN WITNESS WHEREOF (this Agreement has been duly executed by or on behalf of the parties)