CLIENT AGREEMENT FOR PROFESSIONAL SERVICES Between Merrick & Company and Alternative Ethanol Technologies, Inc.
Exhibit
10.5
CLIENT
AGREEMENT
FOR
Between
Xxxxxxx
& Company
and
Alternative
Ethanol Technologies, Inc.
Table
of Contents
|
Article
1
|
Xxxxxxx’x
Services and Personnel
|
3
|
|
|
Article
2
|
Compensation
|
4
|
|
|
Article
3
|
Changes
to Scope of Work, Suspension
|
4
|
|
|
Article
4
|
Technical
and Contractual Representatives
|
5
|
|
|
Article
5
|
Client
Responsibilities
|
5
|
|
|
Article
6
|
Records,
Audit and Documents
|
6
|
|
|
Article
7
|
Conflict
of Interest, No Contingent Fees
|
6
|
|
|
Article
8
|
Confidential
& Proprietary Information
|
7
|
|
|
Article
9
|
Software
Rights, Copyright, Patent, Trademark
|
7
|
|
|
Article
10
|
Subcontracts
|
8
|
|
|
Article
11
|
Indemnification
& Risk Allocation
|
8
|
|
|
Article
12
|
Insurance
|
9
|
|
|
Article
13
|
Termination
|
9
|
|
|
Article
14
|
Dispute
Resolution
|
10
|
|
|
Article
15
|
General
|
11
|
|
|
Article
16
|
Incorporation
of Attachments
|
13
|
A
-
Statement of Services, Project Schedule, Deliverables & Additional
Services
B
-
Schedule of Payment
C
–
Additional Client Responsibilities
D
-
Insurance
Client
Agreement for Professional Services
This
Client Agreement for Professional Services (“Agreement”) is
made by and between Xxxxxxx & Company, a Colorado corporation
(“Xxxxxxx”) and Alternative Ethanol Technologies Inc., a
Delaware corporation (“Client”) and its permitted
assigns.
Client
desires to obtain professional services for the “Project”
described on Attachment A and the parties wish to set forth
the terms and
conditions for performance of these services.
NOW
THEREFORE, for and in consideration of the mutual promises and covenants herein,
and for other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties agree as follows:
Article
1 - Xxxxxxx’x Services and Personnel
|
1.1
|
Xxxxxxx
agrees to perform the services described in Attachment A
(“Statement of Services, Project Schedule, Deliverables & Additional
Services”). Upon notification to proceed, Xxxxxxx
shall promptly commence and diligently continue the services to completion
in compliance with Attachment A, except as may be otherwise provided
herein.
|
|
1.2
|
Xxxxxxx’x
services shall be performed in a manner consistent with the care
and skill
exercised by professionals practicing in the same locality and specialty
under similar conditions subject to the time limits and financial
and
physical constraints imposed on Xxxxxxx’x services by
Client. There are no warranties, express or implied, including,
without limitation and to the extent they may be applicable, the
implied
warranty of “merchantability” and “fitness for a particular purpose,”
which extend beyond the description in this
Agreement.
|
|
1.3
|
Xxxxxxx
shall follow and comply with federal, state and local government
laws,
rules, regulations, codes and ordinances. Xxxxxxx shall be
responsible for completeness and accuracy of its services and shall
correct its errors or omissions at its own expense. Should
Client become aware of errors or omissions in the services or should
Client otherwise become dissatisfied with the services, Client shall
give
prompt written notice to Xxxxxxx so that Merrick may take measures
to
minimize the consequences of such condition, and thereafter allow
a
reasonable time for correction by
Xxxxxxx.
|
|
1.4
|
Warranties
for machinery, equipment, and the like procured or furnished by Xxxxxxx
shall be limited to those provided by the suppliers or manufacturers
and
any purchase of such machinery, equipment and the like shall be part
of a
Client approved plan.
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|
1.5
|
Xxxxxxx
shall promptly pay, when due, taxes, excises, license fees directly
applicable and chargeable to the services it performs under this
Agreement. Xxxxxxx shall take out and keep current municipal,
county, state or federal licenses required to perform the
services.
|
|
1.6
|
Client
and Xxxxxxx agree to work together, and with other members of the
project
team, on the basis of trust, good faith and fair dealing, and shall
take
actions reasonably necessary to enable each other to perform this
Agreement in a timely, efficient and economical manner. Client
shall endeavor to promote harmony and cooperation among Client, Xxxxxxx,
and other members of the project
team.
|
Article
2 - Compensation
|
2.1
|
Client
shall pay Xxxxxxx for its basic services as provided in Attachment
B (“Schedule of Payment”). If Client changes the scope
of services or requests additional services which cause an increase
or
decrease in Xxxxxxx’x services, an equitable adjustment as agreed by the
parties shall be made to Xxxxxxx’x compensation under Article 3 and this
Agreement shall be modified in writing
accordingly.
|
Article
3 - Changes to Scope of Work, Suspension
|
3.1
|
A
partial itemization of additional services available is set forth
in
Attachment C. Client may request that Xxxxxxx perform these and
other additional services or make changes to the scope of
services. Such changes or additions may include the work
required to evaluate such a request. Except where time is of
the essence (in which case changes or additions may be authorized
verbally
and later confirmed in writing), Xxxxxxx and Client shall agree in
writing
to the exact nature of the change or addition prior to its
implementation. This writing, when signed by both parties,
shall constitute an authorization for changes or additions and shall
contain a description of the services, the commencement date and
expected
completion date for the services, and any special conditions applicable
to
the services.
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3.2
|
If
Client’s changes or additions cause an increase or decrease in Xxxxxxx’x
services, the parties shall in good faith attempt to reach a written
agreement adjusting Xxxxxxx’x compensation in an equitable manner.
If such an equitable adjustment cannot be reached, Xxxxxxx shall
perform
such services on a time and material basis in accordance with Attachment
B. In this event, Xxxxxxx shall keep an accurate record of its
services, supported by time sheets, invoices and other documentation
reasonably requested by Client. Xxxxxxx shall accurately
substantiate costs in a clear and precise
manner.
|
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3.3
|
Client
may at any time, by written notice to Xxxxxxx, suspend further performance
of the services by Xxxxxxx. Upon receiving notice of
suspension, Xxxxxxx shall promptly suspend performance of the services
to
the extent specified. During the period of a suspension,
Xxxxxxx shall care for and protect its services in
progress. For a period of ninety (90) days, consecutive or in
the aggregate, Client may withdraw the suspension of performance
of the
services as to all or part of the suspended services by written notice
to
Xxxxxxx specifying the effective date and scope of
withdrawal. Xxxxxxx shall then resume performance of the
services for which the suspension was
withdrawn.
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3.4
|
So
long as Client’s suspension of Xxxxxxx’x performance is not necessitated
by Xxxxxxx’x performance or non-performance, an equitable adjustment shall
be made to Xxxxxxx’x compensation under Attachment B and to any scheduling
or deliverable dates justified by the suspension or withdrawal of
suspension, and this Agreement shall be modified in writing
accordingly.
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3.5
|
If
Xxxxxxx disagrees with a request by Client for a noncompensible correction
of defects or errors or omissions in the services, then in addition
to or
in lieu of the other provisions of this Agreement, Xxxxxxx may invoice
Client for additional compensation in performing the services and
the
Dispute Resolution procedures of Article 14 shall apply to such invoiced
amounts.
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Article
4 - Technical and Contractual Representatives
|
4.1
|
Authorized
representatives of Client and Xxxxxxx
are:
|
|
Client:
|
Xxxxxxx
& Company:
|
|
Technical: Xxx
Xxxxxxxxxx, PhD
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Technical: Xxxx
Xxxxxxx
|
|
Contractual:
Xxxxxx Xxxxxxxxx
|
Contractual:Xxxxxx
X. Xxxxxxxx
|
|
4.2
|
Modifications
or amendments required or permitted under this Agreement should be
made by
the Contractual Representatives, and technical directions and
communications concerning the services should be made by the Technical
Representatives. Change of an authorized representative should
be made in writing but may be effected by course of conduct without
writing.
|
Article
5 - Client Responsibilities
|
5.1
|
Client’s
representatives as identified in Article 4 above shall have, respectively,
authority to act for Client in all things pertaining to this Agreement
including, without limitation, authority to make changes to the scope
of
services or request additional services or suspend services, authority
to
transmit instructions, receive information, interpret and define
Client’s
policies and decisions with respect to Xxxxxxx’x services, and to make
decisions on Client’s behalf when requested to do so by
Xxxxxxx.
|
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5.2
|
Client
shall cooperate with Xxxxxxx in all aspects of the Project and shall
provide information and criteria of Client’s requirements for the Project,
including, if appropriate, objectives and constraints, space, capacity
and
performance requirements, flexibility and expendability, and any
time or
budgetary limitations. Each party shall have access to the project
site,
and Client shall furnish copies of specifications and standards,
which it
will require to be included in the services, and Xxxxxxx shall examine,
and respond promptly to Client’s submissions. Client shall consult with
Xxxxxxx on a regular basis concerning the timeliness, cost and adequacy
of
services during the phases of scheduled work and the work progress
dates
and promptly furnish to Xxxxxxx written notice of any noncompliance
therewith.
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5.3
|
Xxxxxxx
shall not be responsible for taking precautions for protection of
the work
or safety of the public through or around the Project operations
and
Xxxxxxx shall not be responsible for the means, methods, techniques,
sequencing or procedures of the work of others unless such work is
directed by or under the supervision of
Xxxxxxx.
|
Article
6 - Records, Audit and Documents
|
6.1
|
Xxxxxxx
shall maintain records of performance under this Agreement and shall
make
these records available for inspection and for audit (if the payment
provisions herein are of a type capable of audit) by Client at all
reasonable times during the course of services and for a period of
two (2)
years after completion of services. Audits shall be conducted
in accordance with generally accepted auditing principles consistently
applied.
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|
6.2
|
Subject
to the provisions of Article 9, herein, all designs, drawings,
calculations, specifications, and similar services provided by Xxxxxxx
are
instruments of service and Xxxxxxx retains common law, statutory,
and
other ownership rights therein, including the copyright thereto and
the
right of reuse by and at the discretion of Xxxxxxx, whether or not
the
Project is completed. Submission of documents or other
instruments prepared under this Agreement to any regulatory agency
or
others for use on the Project shall not be construed as publication
to
defeat Xxxxxxx’x rights herein.
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6.3
|
Unless
specifically provided to the contrary in Attachment A, the instruments
of
Xxxxxxx’x service are not intended or represented to be suitable for reuse
by Client or others on extensions of the Project or on any other
project. Any such reuse without the prior express written
consent of Xxxxxxx, which consent shall not be unreasonably withheld,
conditioned or delayed, shall be at Client’s sole risk and without
liability or loss exposure to Xxxxxxx and Client shall indemnify,
defend
and hold Xxxxxxx harmless from any and all claims, damages, losses,
liabilities and expenses, including attorney fees and expert and
consulting fees, arising out of or resulting from such an unauthorized
reuse.
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|
6.4
|
Client,
its officers and its employees shall not use Xxxxxxx’x name, publish
articles, give press releases, or make speeches about, or otherwise
publicize in any way the results achieved or the services performed
by
Xxxxxxx under this Agreement, without first obtaining Xxxxxxx’x written
consent, which consent shall not be unreasonably withheld, delayed
or
conditioned.
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Article
7 - Conflict of Interest, No Contingent Fees
|
7.1
|
Xxxxxxx
represents it has no known direct or indirect interest, which would
conflict with the performance of its services under this
Agreement.
|
|
7.2
|
Except
as disclosed to Client in writing and except for the compensation
to be
paid hereunder, Xxxxxxx warrants it has not directly or indirectly
paid or
agreed to pay any person or company any fee, commission, contribution,
donation, gift, or any other type of consideration to solicit or
secure an
award of this Agreement.
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Article
8 - Confidential & Proprietary Information
|
8.1
|
Xxxxxxx
and Client, to the extent of their rights and abilities to do so,
may
exchange technical data and information reasonably required of each
to
perform this Agreement. It is anticipated these exchanges will
include technical methods, design details, techniques and pricing
data of
Xxxxxxx, together with trade secrets and other confidential and
proprietary information of the parties which shall constitute
“Confidential Information” when marked, or stamped or identified as
such.
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8.2
|
Each
party will treat as confidential all Confidential Information, which
has
been or may hereafter be made available to the other in connection
with
this Agreement. Except as necessary for the Project, each party
agrees that under no circumstance will it make use of or disclose
Confidential Information to any third party or use Confidential
Information to the detriment or competitive disadvantage of the other
party.
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8.3
|
Each
party agrees to limit disclosure of the Confidential Information
to its
officers, directors, employees and agents and then only to the extent
reasonably necessary to effectuate the purposes of the
Project. The party receiving Confidential Information shall
take diligent precautions to insure that those persons to whom disclosures
are made keep the Confidential Information
confidential.
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8.4
|
These
restrictions shall not apply to the extent Confidential Information
was in
the public domain at the time of the disclosure or subsequently becomes
a
part of the public domain through no fault of the party receiving
the
Confidential Information; was known to the receiving party at the
time of
the disclosure; was readily ascertainable from public or trade sources
at
the time of its disclosure; was independently developed by the receiving
party without recourse to any Confidential Information provided under
this
Agreement; or is the subject of demand by subpoena, court or governmental
order or other similar mandatory legal process in which case the
party
against whom the demand or request is made shall forthwith give written
notice to the other to preserve the opportunity to resist and/or
respond
to such process.
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8.5
|
The
covenants of this Article shall survive expiration or termination
of this
Agreement and shall apply for a period of two (2) years
thereafter. In addition to and without prejudice to its other
rights and remedies, a party shall be entitled to injunctive relief
upon
proof of a breach or threatened breach of this
Article.
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Article
9 - Software Rights, Copyright, Patent and Trademark
|
9.1
|
Ownership
and Nondisclosure of Confidential Information. All
Confidential Information is the sole property of Client, Client’s assigns,
and Client’s customers, as the case may be, and Client, Client’s assigns
and Client’s customers, as the case may be, shall be the sole and
exclusive owner of all patents, copyrights, mask works, trade secrets
and
other rights in Client’s Confidential Information. Xxxxxxx
hereby does and will assign to Client all rights, title and interest
it
may have or acquire in Client’s Confidential
Information.
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|
9.2
|
Ownership
and Return of Materials. All materials (including, without
limitation, documents, drawings, models, apparatus, sketches, designs,
lists, and all other tangible media of expression) furnished to Xxxxxxx
by
Client shall remain the property of Client. Upon termination of
Xxxxxxx’x engagement, or at any time on the request of Client before the
termination of such engagement, Xxxxxxx will promptly (but no later
than
five (5) days after the earlier of the termination of Xxxxxxx’x engagement
or Client’s request) destroy or deliver to Client, at Client’s option,
(a) all materials furnished to Xxxxxxx by Client, (b) all
tangible media of expression which are in Xxxxxxx’x possession and which
incorporate any Confidential Information or otherwise relate to Client’s
business, and (c) written certification of Xxxxxxx’x compliance with
its obligations under this
sentence.
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9.3
|
Innovations. As
used in this Agreement, the term “Innovations” means all processes,
machines, manufactures, compositions of matter, improvements, inventions
(whether or not protectable under patent laws), works of authorship,
information fixed in any tangible medium of expression (whether or
not
protectable under copyright laws), moral rights, mask works, trademarks,
trade names, trade dress, trade secrets, know-how, ideas (whether
or not
protectable under trade secret laws), and all other subject matter
protectable under patent, copyrights, moral right, mask work, trademark,
trade secret or other laws, and includes without limitation all new
or
useful art, combinations, discoveries, formulae, manufacturing techniques,
technical developments, discoveries, artwork, software, source code
and
designs including “Inventions,” which is defined to mean any inventions
protected under patent laws.
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9.4
|
Assignment
of Innovations; Xxxxxxx hereby agrees promptly to disclose
and describe to Client, and hereby does and will assign to Client
or
Client’s designee its entire right, title, and interest in and to, each
of
the Innovations (including Inventions), and any associated intellectual
property rights, which Xxxxxxx may solely or jointly conceive, reduce
to
practice, create, derive, develop or make during Xxxxxxx’x engagement
(collectively, the “Client Innovations”). To the extent any of
the rights, title and interest in and to Client Innovations cannot
be
assigned by Xxxxxxx to Client, Xxxxxxx hereby grants to Client an
exclusive, royalty-free, transferable, irrevocable, worldwide license
(with rights to sublicense through multiple tiers of sublicensees)
to
practice such non-assignable rights, title and interest. To the
extent any of the rights, title and interest in and to Client Innovations
can be neither assigned nor licensed by Xxxxxxx to Client, Xxxxxxx
hereby
irrevocably waives and agrees never to assert such non-assignable
and
non-licensable rights, title and interest against Client or any of
Client’s successors in interest to such non-assignable and non-licensable
rights.
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|
9.5
|
Future
Innovations. Xxxxxxx recognizes that Client Innovations or
Confidential Information relating to Xxxxxxx’x activities under this
Agreement while engaged by Client and conceived, reduced to practice,
created, derived, developed, or made by Xxxxxxx, alone or with others,
within two (2) years after termination of Xxxxxxx’x engagement may have
been conceived, reduced to practice, created derived, developed,
or made,
as applicable, in significant part while performing services for
Client. Accordingly, Xxxxxxx agrees that such Innovations and
Confidential Information shall be presumed to have been conceived,
reduced
to practice, created, derived, developed, or made, as applicable,
during
Xxxxxxx’x engagement and are to be promptly assigned to Client unless and
until Xxxxxxx has established the contrary by written evidence satisfying
the applicable standard of proof.
|
9.6 Cooperation
in Perfecting Rights to Proprietary Information and
Innovations.
Xxxxxxx
agrees to perform, during and after its engagement, all acts deemed necessary
or
desirable by Client to permit and assist Client, at Client’s expense, in
obtaining and enforcing the full benefits, enjoyment, rights and title
throughout the world in the Proprietary Information and Innovations assigned
or
licensed to, or whose rights are irrevocably waived and shall not be asserted
against Client under this Agreement. Such acts may include, but are
not limited to, execution of documents and assistance or cooperation (i) in
the filing, prosecution, registration, and memorialization of assignment of
any
applicable patents, copyrights, mask work, or other applications, (ii) in
the enforcement of any applicable patents, copyrights, mask work, moral rights,
trade secrets, or other proprietary rights, and (iii) in other legal
proceedings related to the Proprietary Information or Innovations.
Notwithstanding
any other provision in this Agreement to the contrary, including any other
provision with the same or similar limiting language, nothing in this Agreement
shall be construed to prohibit Xxxxxxx from offering and performing its standard
services, either before or after this engagement with Client. Unless
as provided to the contrary in this Agreement, Xxxxxxx shall retain ownership
of
and proprietary rights to any software programs or data be used by Xxxxxxx
under
this Agreement. Xxxxxxx retains the right to use, sell, and/or modify
any databases developed and/or modified in performing its services
hereunder.
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9.7
|
At
Xxxxxxx’x expense, Xxxxxxx shall indemnify and hold Client harmless and
shall defend any suits brought against Client based on a claim that
the
use of any design, process, apparatus, or any part, methodology,
software,
publication, or other proprietary right (“Proprietary Property”) furnished
by Xxxxxxx under this Agreement constitutes an infringement of any
patent,
trademark, or copyright of the United States; provided that Xxxxxxx
is
notified promptly in writing by Client of such a claim or contention
and
given the authority, information, and assistance for the defense
(at
Xxxxxxx’x expense) thereof.
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|
9.8
|
Notwithstanding
the foregoing, Xxxxxxx shall not be liable to Client for claims under
this
Article resulting from the use of Proprietary Property that is directed
for use by Client or by another on Client’s behalf, or that is not
developed or proposed by Xxxxxxx.
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Article
10 - Subcontracts
|
10.1
|
Except
as provided in the Attachments, Xxxxxxx shall not subcontract any
part of
its services under this Agreement without first providing written
notice
to Client. Xxxxxxx shall obligate each subcontractor of every
tier to consent to compliance with all applicable provisions of this
Agreement. Nothing contained
in any subcontract of any tier shall create a contractual relationship
between Client and any such
subcontractor.
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Article
11 - Indemnification & Risk Allocation
|
11.1
|
Xxxxxxx
agrees to indemnify and save Client harmless from any liability,
loss,
cost, or expense, including attorney fees, claimed by third parties
for
property damage or bodily injury, including death, caused by the
negligence of Xxxxxxx in connection with Xxxxxxx’x professional
services. Client agrees to indemnify and save Xxxxxxx harmless
from any liability, loss, cost, or expense, including attorney fees,
claimed by third parties for property damage or bodily injury, including
death, caused by the negligence of Client in connection with the
operations of Client. If the negligence of both Xxxxxxx and
Client is the cause of such damage or injury, the liability, loss,
cost,
or expense shall be shared between Xxxxxxx and Client in proportion
to
their relative degrees of negligence and the right of indemnity shall
apply for such proportion.
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11.2
|
It
is intended by the parties to this Agreement that performance of
Xxxxxxx’x
services shall not subject Xxxxxxx’x personnel, including its employees,
officers, directors, or shareholders, to any personal legal exposure
for
any risk associated with the Project. Client agrees that any
claim, demand or suit shall be made only against Xxxxxxx & Company, a
Colorado corporation, and not against any of Xxxxxxx’x
personnel.
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11.3
|
Client
and Xxxxxxx agree that notwithstanding any other provision in this
Agreement to the contrary (including any other provision with the
same or
similar limiting language), Xxxxxxx’x maximum liability to Client, in the
aggregate, for claims, liabilities, losses, or damages of any nature
arising out of or resulting from this Agreement (including, without
limitation, indemnity obligations, contract damages, attorney’s fees and
expert-witness fees), arising from any cause(s) and regardless of
the
legal theory asserted (including, without limitation, negligence,
indemnity, breach of contract or warranty, strict liability, or tort),
shall in no event exceed the greater of (a) $50,000, or
(b) the total compensation received by Xxxxxxx for services
rendered under this Agreement (or if separate task orders are issued
for
each project, then the total compensation received by Xxxxxxx for
services
under the applicable task order). Client and Xxxxxxx agree that
this Article 11.3 shall not apply in the event of Xxxxxxx’x breach of
Articles 7, 8 or 9 of this Agreement or in the event of Xxxxxxx’x reckless
or intentional misconduct.
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11.4
|
Notwithstanding
any other provision in this Agreement to the contrary (including
any other
provision with the same or similar limiting language), Client and
Xxxxxxx
waive claims against each other for incidental, special, indirect
or
consequential damages arising out of or relating to this Agreement,
and
Xxxxxxx shall not be liable for any cost or expense that provides
betterment, upgrade or enhancement of the
Project.
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11.5
|
The
provisions of this Article apply to all services provided to Client
by
Xxxxxxx, whether within or not within the scope of services of this
Agreement, except as the parties may otherwise provide in a signed
writing
making specific reference to this
Article.
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|
11.6
|
The
provisions of this Article shall survive expiration or termination
of this
Agreement.
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Article
12 - Insurance
|
12.1
|
Xxxxxxx
shall maintain during the term of this Agreement and, if Client is
not in
material default hereunder for which Xxxxxxx provided written notice
to
Client and which material default Client failed to cure within a
reasonable time, for a period of two (2) years after Xxxxxxx’x services,
insurance of the kinds and with the limits not less than the amounts
set
forth in Attachment D
(Schedule of
Insurance).
|
Article
13 - Termination
|
13.1
|
Subject
to the other provisions of this Agreement, this Agreement may be
terminated in whole or in part in writing by either party in the
event of
a substantial failure by the other party to fulfill its obligations
under
this Agreement. No such termination shall be effective until
the other party is given not less than ten (10) working days written
notice of intent to terminate and an opportunity for consultation
with the
terminating party prior to
termination.
|
|
13.2
|
This
Agreement may be terminated in whole or in part in writing by Client
for
its convenience. No such termination shall be effective until
Xxxxxxx is given not less than ten (10) working days written notice
of
intent to terminate and an opportunity for consultation with Client
prior
to termination.
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|
13.3
|
Upon
receipt of a notice of termination, Xxxxxxx shall promptly discontinue
all
services affected (unless the notice directs otherwise). If
Client is not in material breach of this Agreement following Client’s
reasonable opportunity to cure any alleged breach, Xxxxxxx shall
deliver
or otherwise make available to Client all finished services; provided,
however, Xxxxxxx shall not be responsible for the accuracy, completeness
or workability of documents prepared by Xxxxxxx to the extent changed
or
completed by Client or by another
party.
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|
13.4
|
Subject
to the provisions of Article 2, Xxxxxxx shall be paid for its costs
and
services performed through the effective date of termination, less
allowances for negligent services, which must be corrected. If
this Agreement is terminated for Client’s convenience, in addition to
payment for costs and services performed through the effective date
of
termination, Client shall pay Xxxxxxx as a termination expense five
(5)
percent of the total amount invoiced, or to be invoiced by Xxxxxxx
through
the effective date of termination. Xxxxxxx’x final invoice to
Client, which may be submitted after the effective date of termination,
shall calculate such sum.
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Article
14 - Dispute Resolution
|
14.1
|
If
a claim or controversy between Client and Xxxxxxx is not resolved
by the
designated representatives of the parties, the chief executive officers
of
Xxxxxxx and Client, or a senior member of management with authority
to
negotiate and execute a binding settlement, shall meet within 30
days
thereafter to review and discuss such claim or controversy and attempt,
in
good faith, to settle or resolve the matter. If a claim for
professional negligence is involved, the certification identified
below
shall be included as a part of the review and
discussion.
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14.2
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Any
dispute, controversy, or claim arising out of or relating to this
Agreement, or the breach, termination, or invalidity thereof (whether
in
tort, contract, statute or otherwise), shall be resolved by binding
arbitration by a single mutually agreed upon arbitrator in accordance
with
the Commercial Arbitration Rules of the American Arbitration Association
(“AAA”) then in effect. If the parties are unable to agree on a
single arbitrator the arbitration shall be conducted by a panel of
three
(3) arbitrators with Client and Xxxxxxx each selecting one (1) arbitrator
and the two (2) arbitrators selecting a third arbitrator. If
the two arbitrators are unable to agree on a third arbitrator, the
appointing authority shall be the AAA. The arbitrators selected
by Xxxxxxx and Client shall each be skilled in the engineering,
procurement and construction business as a consumer, provider, or
consultant for such services, and the third arbitrator shall be an
attorney familiar with civil litigation. The rules of evidence,
discovery and privilege applicable under the United States Federal
Rules
of Civil Procedure and Federal Rules of Evidence shall
apply. The decision of the arbitrators shall be rendered in
writing and may include injunctive relief including specific
performance. If a party disagrees with the decision of the
arbitrators, within fifteen (15) days after such written decision
is
rendered that the party may request a rehearing before the same
arbitrators. Such rehearing shall be granted as a matter of
right, but shall not last more than two (2) hours unless extended
by the
arbitrators. The arbitrators may, in their discretion, modify
their decision, or grant a new
hearing.
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14.3
|
The
arbitration may be conducted even if the arbitration body does not
have
jurisdiction over a necessary party (other than a party to this
Agreement). The location of any arbitration shall be Denver,
Colorado or such other location mutually agreed upon by the
parties. An award of the arbitrator(s) may be entered in any
court of competent jurisdiction.
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14.4
|
If
a party seeks temporary injunctive relief, it may apply to a court
of
competent jurisdiction for such relief notwithstanding this arbitration
provision, but such injunctive relief shall be terminated by the
arbitration order if not sooner terminated by the court ordering
such
relief.
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14.5
|
Client
shall make no direct or indirect claim for professional negligence
against
Xxxxxxx unless Client has first complied with the provisions above
and
provided Xxxxxxx with a written certification executed by an independent,
licensed professional, currently practicing in the field(s) of work
called
for under this Agreement. This certification shall (1) contain
the name and license number of the certifier; (2) to the extent known
without further investigation, specify each act or omission the certifier
contends was a violation of the standard of care set forth in Section
1.2,
and (3) to the extent known without further investigation, detail
the
basis for the certifier’s opinion that each such act or omission
constitutes such a violation.
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14.6
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The
certificate shall be provided to Xxxxxxx at least thirty (30) calendar
days prior to the assertion of any claim in an arbitration, judicial,
or
other alternative dispute resolution proceeding and compliance with
the
provisions of this Article 14 shall be a condition precedent to such
a
proceeding.
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Article
15 - General
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15.1
|
Governing
Law & Costs. This Agreement shall be governed by
the laws of the State of Colorado without reference to conflict of
law
principles, if any. In the event of an action to enforce the
terms and conditions of this Agreement or of any of the rights or
obligations arising from this Agreement, the prevailing party shall
be
entitled to an award of the costs of such action, including reasonable
attorney fees and expert witness and consulting
fees.
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15.2
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Entire
Agreement, Amendments. This Agreement sets forth the
entire agreement of the parties, supercedes all prior negotiations
and
understandings, and shall govern any services by Xxxxxxx on the Project
prior to execution of this Agreement. Except as otherwise
expressly provided
in this Agreement, this Agreement may be modified or amended only
upon the
signed written agreement of both parties. Xxxxxxx shall not be
required to execute any documents subsequent to the signing of this
Agreement that increase Xxxxxxx’x contractual or legal obligations or
risks, or jeopardize the availability of or increase the cost of
its
professional or general liability insurance, and Client shall make
no
request of Xxxxxxx that would be contrary to Xxxxxxx’x professional
responsibilities to the public. Xxxxxxx and Client have each
read and fully understand the terms of this Agreement, each has had
the
opportunity to have it reviewed by counsel, and this Agreement shall
not
be construed against either party in the event of an
ambiguity.
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15.3
|
Severability. If
any provision of this Agreement is held to be invalid or unenforceable
by
a court or other authority with like jurisdiction, the remainder
of this
Agreement shall be unaffected and enforceable, and there shall be
deemed
substituted for the affected provision(s) a valid and enforceable
provision(s) as similar as possible to the affected
provision(s).
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15.4
|
Assignment. This
Agreement is for personal services and neither party may assign its
rights
nor delegate the performance of its duties hereunder without the
prior
written approval of the other, which approval shall not be unreasonably
withheld, delayed or conditioned. Any assignment,
voluntary or involuntary, in violation of the foregoing shall be
voidable. This Agreement is not intended to benefit
any third party. Notwithstanding the foregoing, Client may
assign this Agreement, without the consent of Xxxxxxx, to any of
Client’s
affiliates or subsidiaries.
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15.5
|
Successors
and Approved Assigns. This Agreement shall inure to
the benefit of and shall be binding upon the parties and their respective
legal representatives, successors, and approved
assigns.
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15.6
|
Non-Waiver. No
delay or failure by either party to exercise any right under this
Agreement, and no partial or single exercise of that right shall
constitute a waiver of that or any other
right.
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15.7
|
Independent
Contractor. Xxxxxxx shall perform its services as an
independent contractor and not as an agent, employee, fiduciary,
representative, joint venturer or partner of
Client.
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15.8
|
Force
Majeure. Xxxxxxx shall not be in default of its
obligations if performance is prevented or delayed by an existing
or
future force majeure condition including, without limitation, act
of government, act of God, act of Client or Client’s contractor, strike,
insurrection, embargo, fire, flood, earthquake, explosion, riot,
war,
rebellion, sabotage, epidemic, weather disruptions or natural disasters
or
any other cause beyond the reasonable control of a party to this
Agreement.
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15.9
|
Notices. Notice
required or permitted hereunder shall be in writing and delivered
in a
manner most efficient under the circumstances. Subject to the
foregoing and unless otherwise specifically provided, notice shall
be
given by (1) hand delivery, (2) facsimile, or (3) certified mail
(postage
prepaid & return receipt requested), delivered as
follows:
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Xxxxxxx:
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Xxxxxxx
& Company
0000
X. Xxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxx 00000
Attn:
Xxxx Xxxxxxx
Telephone
No.: (000) 000-0000
Facsimile
No.: (000) 000-0000
Email:
xxxx.xxxxxxx@xxxxxxx.xxx
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Client:
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Alternative
Ethanol Technologies, Inc.
0000
Xxxxxxx Xxxxxxxxx
Xx.
Xxxxx, Xxxxxxxx 00000
Attn:
Xxxxxx Xxxxxxxxx, President
Telephone
No.: (000) 000-0000
Facsimile
No.: (000) 000-0000
Email: xxxxxxxxxxxx@xxxxxxxxx.xxx
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With
a copy to:
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Sauerwein,
Simon, Xxxxxxxxx & Xxxx, PC
000
X. Xxxxxxx, Xxxxx 000
Xx.
Xxxxx, Xxxxxxxx 00000
Attn: Xxxx
Xxxxx, Jr.
Telephone
No.: (000) 000-0000
Facsimile
No.: (000) 000-0000
Email: xxx@xxxxxxxxx.xxx
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or
at
such other address as a party hereto may designate by written
notice. Notice shall be deemed effective on the date of delivery if
hand delivered or faxed (to be an effective notice by fax, there must be a
written confirmation of the date and time of the transmission, generated
contemporaneously by the transmission device in the ordinary course), or on
the
third day after mailing if sent by certified mail.
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15.10
|
Headings. The
captions and headings of this Agreement are for convenience and reference
only, and shall not affect the construction or interpretation of
any of
its provisions.
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15.11
|
Pronouns
& Terms. In this Agreement the singular shall
include the plural, the plural the singular, and the use of any gender
shall be applicable to all genders.
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15.12
|
Counterparts. This
Agreement may be executed in multiple original or facsimile counterparts,
each of which shall be deemed an original but all of which together
shall
constitute one and the same
instrument.
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Article
16 - Incorporation of Attachments
The
following Attachments are incorporated into and made a part of this
Agreement:
A
- Statement of Services, Project Schedule, Deliverables & Additional
Services
B
- Schedule of Payment
C
– Additional Client Responsibilities
D
– Insurance
SINGNATURE
PAGE TO FOLLOW
IN
WITNESS
WHEREOF, the parties execute this Agreement on the date last written
below.
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Alternative
Ethanol Technologies, Inc.
A
Delaware corporation
|
Xxxxxxx
& Company, a
Colorado
corporation
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||
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Signature
|
Signature
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||
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Name
|
Name
|
||
|
Title
|
Title
|
||
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Date
|
Date
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||
Attachment
A
Statement
of Services, Project Schedule, Deliverables, & Additional
Services
A.1 Statement
of
Services
In
accordance with the provisions of Article 1, Xxxxxxx agrees to perform the
services described below (describe services in detail, services not described
are not included in the scope of services and will not be implied by course
of
conduct or custom in the industry, or otherwise).
Xxxxxxx
to create a Program Management Plan (PMP) for the development of a pilot
facility sized to obtain sufficient design basis information to verify the
commercial viability of the technology and to mitigate the risk on the first
commercial plant. The PMP will also include a framework of the tasks
necessary to implement the technology on a commercial scale. A more
detailed statement of services is contained in Xxxxxxx’x Xxxx 5, 2007 letter
attached hereto and incorporated herein by reference.
A.2 Project
Schedule
The
PMP
will be delivered on or before eight (8) weeks from the date of Notice to
Proceed from your firm.
A.3 Deliverables
These
items contemplated in the Statement of Services, including but not limited
to,
single PMP per the terms of the referenced proposal letter, dated June 5,
2007. Single Process Flow Diagram and or a single P&ID as the
design basis document to support pilot plant estimate basis.
A.4 Additional
Services
The
following services, and any other services not specifically described in
Statement of Services, are not included in Xxxxxxx’x basic
services. An undertaking for Additional Services shall not be
presumed by course of conduct or custom in the industry. Additional
Services may be provided if authorized by Client in
writing. Additional Services shall be paid by Client as provided in
the Agreement, in addition to the compensation for Xxxxxxx’x basic
services.
A.4.1.
Providing financial feasibility or other special studies not otherwise
contemplated by Sections A1, A2 and A3 of this Attachment A.
A.4.2.
Providing planning surveys, site evaluations, environmental studies or
comparative studies of prospective sites, and preparing special surveys, studies
and submissions required for approval of governmental authorities or others
having jurisdiction over the Project.
A.4.3. Providing
services relative to future facilities, systems and equipment, which are not
intended to be constructed during the Construction Phase.
A.4.4. Preparing
documents of alternate, separate or sequential bids or extra services in
connection with bidding, negotiation or construction prior to the completion
of
the Construction Documents Phase, when requested by Client.
A.4.5. Providing
coordination of Work performed by separate contractors or by Client’s own
forces.
A.4.6. Providing
services in connection with the work of a construction manager or separate
consultants retained by Client except as provided elsewhere in this
agreement.
A.4.7. Providing
Detailed Estimates of Construction Cost, analyses of owning and operating costs,
or detailed quantity surveys or inventories of materials, equipment and
labor.
A.4.8. Providing
interior design and other similar services required for or in connection with
the selection, procurement or installation of furniture, furnishings and related
equipment other than permanently installed laboratory case work and equipment,
if beyond the scope of this Project.
A.4.9. Making
revisions in Drawings, Specifications or other documents when such revisions
are
inconsistent with written approvals or instructions previously given, are
required by the enactment or revision of codes laws or regulations subsequent
to
the preparation of such documents or are due to other causes not solely within
the control of Xxxxxxx.
A.4.10. Preparing
as-built drawings, or preparing drawings, specifications and supporting data
and
providing other services in connection with Change Orders to the extent that
the
adjustment in the basic Compensation resulting from the adjusted Construction
Cost is not commensurate with the services required of Xxxxxxx, provided such
Change Orders are required by causes not solely within the control of
Xxxxxxx.
A.4.11. Making
investigations, surveys, valuations, inventories or detailed appraisals of
existing facilities, and services required in connection with construction
performed by Client or others.
A.4.12. Providing
consultation concerning replacement of any Work damaged by fire or other cause
during construction, and furnishing services as may be required in connection
with the replacement of such Work.
A.4.13. Providing
services made necessary by the default of the Contractor or others, or by major
defects or deficiencies in the Work of the Contractor or others, or by failure
of performance of either the Client or Prime Contractor under the Contract
for
Construction.
A.4.14. Preparing
a set of reproducible record drawings showing significant changes in the Work
made during construction based on marked-up prints, drawings and other data
furnished to Xxxxxxx.
A.4.15. Providing
extensive assistance in the utilization of any equipment or system such as
initial start-up or testing, adjusting and balancing, preparation of operation
and maintenance manuals, training personnel for operation and maintenance,
and
consultation during operation.
A.4.16. Providing
services after issuance to the Client of the final Certificate of
Occupancy.
A.4.17. Preparing
to serve or serving as an expert witness in connection with any public hearing,
arbitration proceeding or legal proceeding.
A.4.18. Providing
services of consultants for other than the normal architectural, structural,
mechanical and electrical engineering services of the Project.
A.4.19. Providing
any other services not otherwise specifically included in this
Agreement.
A.4.20 laims
arbiter service, including interpretation and decisions on matters
concerning performance of Client and any contractor.
A.5 Provisions
Applicable
to all Services
A.5.1. When
it is within its scope to make written responses to requests from a contractor
for clarification and interpretation of the requirements of the contract
documents (“RFI”), Xxxxxxx shall provide written responses to such RFI’s with
reasonable promptness. If an RFI seeks information readily apparent
from reasonable observation of field conditions or a review of the contract
documents (or reasonably inferable therefrom), Xxxxxxx shall be entitled to
additional compensation under Article 3 for the time spent in responding to
such
an RFI.
A.5.2. When
it is within its scope to review and approve or take other appropriate action
on
the contractor submittals, such as shop drawings, product data, samples and
other data, which a contractor is required to submit, Xxxxxxx shall do so but
only for the limited purpose of checking for conformance with the design concept
and the information shown in the construction documents. This review
shall not include review of the accuracy or completeness of details, such as
quantities, dimensions, weights or gauges, fabrication processes, construction
means or methods, coordination of the work with other trades or construction
safety precautions, all of which are the sole responsibility of the
contractor. Review of a specific item shall not indicate that Xxxxxxx
has reviewed the entire assembly of which the item is a
component. Xxxxxxx shall not be responsible for any deviations from
the construction documents not brought to the attention of Xxxxxxx in writing
by
the contractor. Xxxxxxx shall not be required to review partial
submissions or those for which submissions of correlated items have not been
received.
A.5.3. Xxxxxxx
shall have the authority to reject any work that is not, in the judgment of
Xxxxxxx, in conformance with the construction documents or work
plans. Neither this authority nor Xxxxxxx’x good-faith judgment to
reject or not reject any work shall subject Xxxxxxx to any liability or cause
of
action to the contractor, subcontractor or any other suppliers or persons
performing work on the project.
A.5.4. Xxxxxxx
shall be under no duty or obligation to execute any instruments, no matter
by
whom requested, that would result in Xxxxxxx having to certify, guarantee or
warrant the existence or nonexistence of conditions that Xxxxxxx cannot
ascertain, or that were not within the scope of services.
A.5.5. Unless
the scope of services in Attachment A includes an undertaking by Xxxxxxx to
confirm the accuracy of plans, drawings, specifications, criteria, maps, surveys
or other documents or information (“Data”) furnished by Client or others,
Xxxxxxx shall be entitled to rely upon as accurate and correct Data furnished
by
Client or others. If subsequent errors are discovered in Data
furnished by Client or others, which necessitate reperformance of services,
Xxxxxxx shall be compensated for such extra services in accordance with Article
3. Xxxxxxx shall not be liable for errors or omissions in Data
furnished by Client or others.
A.5.6. Since
Xxxxxxx has no control over such things as the cost or availability of labor,
materials, equipment or services furnished by others, nor over any contractors’
method of determining prices, nor over competitive bidding or market conditions,
any cost estimate provided for under this Agreement or otherwise made by Xxxxxxx
shall be on the basis of Xxxxxxx’x professional experience and judgment; but
Xxxxxxx cannot and does not guarantee or warrant that the bids or negotiated
costs will not vary from estimates prepared by Xxxxxxx. If Client
wishes greater assurance as to cost estimates, Client shall employ an
independent cost estimator.
A.5.7. Extra
services by Xxxxxxx to modify its services or deliverables to meet any Client
imposed cost limitation shall entitle Xxxxxxx to additional compensation in
accordance with Article 3.
A.5.8. Design
review, construction observation, or quality assurance services performed by
Xxxxxxx shall not guarantee the performance of and Xxxxxxx shall not have
responsibility or liability for damages arising from the acts or omissions
of
any contractor, subcontractor, supplier or any other entity or person furnishing
materials or performing any work on the Project.
A.5.9. In
the event Xxxxxxx or any other party encounters hazardous materials at the
jobsite, or should it become known in any way that hazardous materials may
be
present at the jobsite or any adjacent areas that may affect the performance
of
Xxxxxxx’x services, Xxxxxxx may, at its option and without liability for
consequential or any other damages, suspend performance of its services until
Client retains an appropriate specialist to identify, xxxxx and/or remove the
hazardous materials, and warrant that the jobsite is in compliance with
applicable laws and regulations. Since Xxxxxxx’x scope of services
does not include services related to the presence of hazardous materials,
hazardous materials encountered in the performance of Xxxxxxx’x services shall
be the responsibility of Client, and Client waives all claims and causes of
action against Xxxxxxx in connection with hazardous materials. As
used in this Agreement, “hazardous materials” means any substances (including
but not limited to asbestos), toxic or hazardous waste, PCB’s, combustible gases
and materials, petroleum or radioactive materials (as the phrase hazardous
materials and each of these is defined in applicable federal statutes) or any
other substances under any conditions and in such quantities as would pose
a
substantial danger to persons or damage to property exposed to such
substances.
A.5.10 The
following applies in the event Xxxxxxx provides electronic files to
Client. Any modification to or interpretation of the electronic files
should be undertaken only by a qualified professional. Xxxxxxx makes
no representation as to the compatibility of any electronic files with client’s
hardware or software. Xxxxxxx will remove all indicia of its
involvement with the electronic files, and any modification or interpretation
will be at Client’s sole risk and without liability or legal exposure to
Xxxxxxx. The electronic files are instruments of
service. Under no circumstances shall delivery of the electronic
files for use by Client be deemed a sale by Xxxxxxx, and Xxxxxxx makes no
warranties, either express or implied, of merchantability or fitness for any
particular purpose, and in no event shall Xxxxxxx be liable for any damages,
including incidental, special, indirect or consequential damages as a result
of
Client’s modification of these electronic files.
A.5.11 When
a certification by Xxxxxxx is within the scope of its services, such
certification shall mean an expression of Xxxxxxx’x professional opinion to the
best of its information, knowledge and belief, and shall not constitute a
warranty or guarantee by Xxxxxxx.
A.5.12 Since
the Americans with Disabilities Act contains general provisions subject to
differing interpretations on a case-by-case basis, services in connection
therewith shall be on the basis of Xxxxxxx’x professional experience and
judgment but Xxxxxxx cannot and does not guarantee or warrant its services
will
be in compliance therewith.
Attachment
B
Schedule
of Payment
B.2. Payment
Provisions
Payment
for services rendered shall be in accordance with the attached rate
sheet.
B.2. Provisions
Applicable to
all forms of Payment
B.2.1. Client
shall make an initial payment of $20,000 as a retainer upon execution of this
Agreement. Upon receipt of the retainer Xxxxxxx shall commence
services. The retainer shall be held by Xxxxxxx and applied against
the final invoice. If the amount of the retainer exceeds the final
invoice, Xxxxxxx shall refund the balance with the final invoice. If
the final invoice exceeds the retainer, Client shall promptly remit the amount
due. Interest earned on the retainer shall in all instances be for
the account of Xxxxxxx and shall not be included in any refund or remittance
calculation.
B.2.2. Except
where the payment provisions below provide or require otherwise, Xxxxxxx shall
submit invoices to Client on a periodic basis with a summary of services
performed in accordance with Xxxxxxx’x standard invoicing
practices. Client shall notify Xxxxxxx of any objection within
fourteen (14) calendar days of the invoice date, identifying the reasons there
for in writing and timely paying that portion of the invoice not in
dispute. Invoices will be considered acceptable to Client if no such
objections are made.
B.2.3. Unless
otherwise provided in Attachment B, payment is due upon presentment of an
invoice. Invoices not paid within thirty (30) days of presentment
(excepting any portion of an invoiced amount in dispute and resolved in favor
of
Client) shall accrue interest at the rate of 1.5 percent per month, compounded
annually. Interest shall be calculated from the date of an invoice,
with payments credited first to interest and then to principal.
B.2.4. Payment
to Xxxxxxx shall not be withheld, postponed or made contingent on the
construction, completion or success of the project or upon receipt by Client
of
offsetting reimbursement or credit from other parties who may have caused
additional services or expenses. No withholdings, deductions or
offsets shall be made from Xxxxxxx’x compensation for any reason except upon
compliance with the certification requirements of Article 14.
B.2.5.
Timely payment by Client to Xxxxxxx is a material part of the consideration
of
this Agreement. If payment is withheld, Xxxxxxx may suspend services
or terminate this Agreement without incurring liability to Client or others
for
damages, including incidental, special, indirect, or consequential
damages.
B.2.6. If
during the term of this Agreement circumstances or conditions that were not
originally contemplated by or known to Xxxxxxx are revealed, to the extent
that
they affect the scope of services, compensation, schedule, allocation of risks
or other material terms of this Agreement, Xxxxxxx may call for renegotiation
of
appropriate portions of this Agreement. Xxxxxxx shall notify Client
of the changed conditions necessitating renegotiation, and Xxxxxxx and Client
shall promptly and in good faith enter into renegotiation of this
Agreement. If terms cannot be agreed to, either party may then
terminate this Agreement.
B.2.7. In
the event of an action to enforce the payment terms and conditions of this
Agreement, the prevailing party shall be entitled to an award of the costs
and
expenses of such action, including attorney fees, expert witness and consulting
fees.
Attachment
C
Additional
Client Responsibilities
Client
will be required to review and approve the pilot plant design drawing to serve
as the estimate basis for this equipment.
Attachment
D
Schedule
of Insurance
Xxxxxxx
shall maintain during the term of this Agreement, and for a period of two (2)
years after completion of Xxxxxxx’x services, insurance of the kinds and with
the limits not less than the amounts below:
Worker’s
Compensation Insurance as required by statute, including
Employers Liability, with limits of $100,000 each accident;
$500,000 disease - policy limit; $100,000 disease - each employee.
Commercial
General Liability Insurance with limits of $1,000,000 per occurrence
and $2,000,000 aggregate.
Business
Automobile Liability Insurance with limits of $1,000,000 per
occurrence, combined single limits (owned, hired & non-owned).
Umbrella/Excess
Liability Insurance with limits of $3,000,000 per
occurrence.
Professional
Liability Practice Policy with limits of $1,000,000 per claim and
$2,000,000 annual aggregate.
Certificates
of insurance evidencing these minimum coverages shall be submitted to Client
at
the commencement of Xxxxxxx’x services. The coverages are subject to
the terms, exclusions and conditions of the policies. Xxxxxxx’x
insurance policies shall be endorsed to include, for the benefit of Client,
a
30-day advance written notice of cancellation. Failure to submit the
certificates or endorsements or failure of Client to insist upon submission
shall not relieve Xxxxxxx of its duty to maintain the required
insurance.
Unless
otherwise provided, Client shall maintain insurance upon the entire work at
the
site to the full insurable value thereof. This insurance shall
include the interests of Client, the Owner, Xxxxxxx, any other beneficially
interested person or entity, and shall insure against the perils of fire and
extended coverage and shall include “all risk” insurance for loss or
damage. If Client does not intend to maintain such insurance, Client
shall inform Xxxxxxx in writing prior to commencement of Xxxxxxx’x services in
which case, at the option of Xxxxxxx, Xxxxxxx may then obtain insurance to
protect its interests. If Xxxxxxx is damaged by failure of Client to
maintain such insurance and to so notify Xxxxxxx, then Client shall bear all
costs properly attributable thereto. Client shall require that
all contractors of any tier on this project obtain and maintain insurance,
with
appropriate limits, to cover the perils of their undertakings.
