Acceptance of Agreement
This agreement’s general terms and conditions, of which this provision is a part, have been established in large measure to allocate certain risks between CLIENT and IER. IER will not initiate service without formal agreement. For purposes of convenience, CLIENT may choose to accept this Agreement orally or to orally authorize IER to initiate services. In that event, CLIENT specifically agrees that, as a material element of the consideration IER requires to execute the services indicated herein, oral acceptance or authorization to initiate services shall be considered by both parties to constitute formal acceptance of all terms and conditions of this Agreement. Unilateral modification of this Agreement subsequent to IER’s initiation of service is expressly prohibited. Furthermore, all preprinted terms and conditions on CLIENT’s purchase order acknowledgement and/or authorization forms are not applicable to this Agreement and IER’s involvement in CLIENT’s project.

CLIENT understands that the project is conducted solely to permit IEC to render a professional opinion about the likelihood of regulated contaminants being present on, in, or beneath the site inquestion at the time services were conducted. No matter how thorough an assessment, investigation, and/or study may be, findings derived from its conduct are limited and IER cannot know or state for an absolute fact that asite is unaffected by reportable quantities of regulated contaminants. Furthermore, even if IER believes that reportable quantities of regulated contaminants are not present, CLIENT still bears the risk that such contaminants may be present or may migrate to the site after the study is complete. Given the foregoing, CLIENT’s acceptance of this Agreement shall signify the CLIENT understands the risks associated with the work and/or project and, as a material element of the consideration IER requires to perform the services, CLIENT shall, to the fullest extent permitted by law, indemnify, defend, and hold harmless IER from any claim or liability for injury or loss arising from IER’s discovery of unanticipated contaminants, hazardous materials, or suspected hazardous materials, or their presence. CLIENT also shall compensate IER for any time spent or expenses incurred by IER in defense of any such claim (the term "any claim" means "any claim in contract, tort or statute alleging negligence, errors, omissions, strict liability, statuary liability, breach of contract, breach of warranty, negligent misrepresentation or other acts giving rise to liability"). Such compensation shall be based upon IER’s prevailing fee schedule and expense reimbursement policy.

ASTM Standards
The American Society for Testing and Materials (ASTM) has developed a variety of prescriptive professional practice standards (standard practices and standard guides), that identify specific methods professionals could or should use to attain information, data, or results. Such prescriptive professional practice standards fail to consider the unique needs of a client, the client’s project-specific expectations, or the requirements and obligations of the professionals engaged to provide such service, nor do they consider more effective techniques that may have been developed subsequent to the issuance of such standards. These ASTM standards are generic and general in nature and, therefore, do not constitute, nor are they equal to the applicable standard of care, which necessarily is defined and must consider project-specific contractual terms and other particular needs, expectations, circumstances, and requirements of the project and the professional engagement. As such, adherence to ASTM’s prescriptive professional practice standards may not be appropriate or in the best interests of the client or the project IER’s instruments of service. IER has not followed prescriptive professional practice standards issued by ASTM, and has instead worked to develop a scope of service specifically for this project, in accordance with CLIENT’s needs and preferences and IER’s professional and contractual obligations.

Maintenance of Professional Standards
The CLIENT recognizes that IER’s services in all cases must be rendered in accordance with prevailing professional standards and ethics. Services performed by IER under this Agreement will be conducted in a manner consistent with the level of care and skill standard to the industry under similar conditions. No other warranty expressed or implied is made. If a situation emerges that causes IER to believe compliance with the CLIENT’s wishes could result in IER violating an applicable provision or aspect of professional standards, or ethics, laws of regulations, IER shall so advise the CLIENT. The CLIENT and IER shall immediately enter into discussions to arrive at a mutually satisfactory solution. Failing achievement of a solution, either party may terminated this Agreement in accordance with the termination provisions stated herein.

Compliance with Codes and Standards
IER shall exercise reasonable care in observing those federal, state and local codes, standards, statutes, and regulations applicable at the time IER prepared the scope of services included in this Agreement. In the event that IER becomes aware of any changes in such does, standards, statutes, or regulations, and if IER believes such changes affect the services, IER shall inform CLIENT of such changes and the impact abiding by them may have on services already performed or to be performed, the fees and costs involved, and scheduling. If either CLIENT or IER believes a change requires re-negotiations of this Agreement both CLIENT and IER shall negotiate promptly and in good faith. If a re-negotiated Agreement cannot be developed, CLIENT shall give IER the right to terminate this Agreement without penalty or cause. In any event, CLIENT shall, to the fullest extent permitted by law, waive any claim against IER, and indemnify, defend, and hold harmless IER from any claim or liability for injury or loss arising from IER’s alleged failure to abide by federal, state or local codes, standards, statutes, or regulations that were not in effect or publicly announced at the time IER otherwise would have incorporated their intent into IER’s services. CLIENT shall also compensate IER for any time spent of expenses incurred by IER in defense of any such claim. Such compensation shall be based upon IER’s prevailing fee schedule and expense reimbursement policy. The term "any claim" used in this provision means "any claim in contract, tort, or statute alleging negligence, errors, omissions, strict liability, statutory liability, breach of contract, breach of warranty, negligent misrepresentation, or other acts giving rise to liability.")

Buried Utilities
CLIENT will furnish to IER any and all information identifying the type and location of utility lines and other man-made objects or items beneath the site’s surface. The CLIENT is responsible for locating, identifying, and marking all utility lines and other man-made objects or items beneath the site’s surface. IER will take reasonable precautions to avoid damaging these man-made objects by preparing, prior to penetrating the site’s surface, a subsurface sketch indicating the locations intended for penetrations and, as per information provided to IER, the locations of buried utility lines and other buried man-made objects. CLIENT will review the sketch and approve the intended penetration locations before penetrations are made. In addition, CLIENT shall, to the fullest extent permitted by law, waive any claim against IER, and indemnify, defend, and hold harmless IER from any claim of liability for injury or loss arising from damage to or contact with buried utility lines of other buried man-made objects that were not called to IER’s attention or which were not properly located on drawings furnished to IER. CLIENT shall also compensate IER for any expenses incurred by IER in defense of any such claim. Such compensation shall be based upon IER’s prevailing fee schedule and expense reimbursement policy. The term "any claim" used in this provision means "any claim in contract, tort, or statute alleging negligence, errors, omissions, strict liability, statutory liability, breach of contract, breach of warranty, negligent misrepresentation, or other acts giving rise to liability.")

Discovery of Unanticipated Materials and Substances
Materials or substances may exist where there is no reason to believe they are present. Should IER discover such unanticipated materials or substances, both non-hazardous and hazardous, IER shall notify CLIENT as soon as practically possible. CLIENT and IER agree that the discovery of unanticipated materials and substances constitutes a changed condition mandating a re-negotiation or termination of this Agreement. CLIENT and IER agree that, upon discovery of unanticipated materials or substances, IER should take those measures that in IER’s opinion are necessary to preserve and protect public health, safety, and welfare and the environment. CLIENT agrees to compensate for such services given that the materials or substances in question are CLIENT’s responsibility at fees that are a minimum of 10 percent (10%) over cost and overhead. In addition, CLIENT shall, to the fullest extent permitted by law, indemnify, defend, and hold harmless IER from any claim or liability for injury or loss arising from IER’s discovery of unanticipated materials or substances or their presence. CLIENT also shall compensate IER for any time spent or expenses incurred by IER in defense of any such claim (the term "any claim" means "any claim in contract, tort or statute alleging negligence, errors, omissions, strict liability, statuary liability, breach of contract, breach of warranty, negligent misrepresentation or other acts giving rise to liability"). Such compensation shall be based upon IER’s prevailing fee schedule and expense reimbursement policy.

Disposal of Materials and Substances
All materials and substances on, in, or under CLIENT’s site, or obtained from CLIENT’s site as samples or as byproducts of the sampling process, are CLIENT’s property. Unless CLIENT directs otherwise, IER shall dispose of all samples and sampling process byproducts in accordance with applicable law. Unless other arrangements are mutually agreed upon in writing, or unless otherwise required, IER shall preserve samples for no longer than 10 calendar days after IER’s issuance to the CLIENT of the initial instrument of service that relates data obtained from them. If in IER’s opinion any of these samples are or may be affected by a regulated contaminants, IER shall package such samples in accordance with applicable law, and CLIENT shall arrange for lawful disposal procedures, that is, procedures to remove the samples from IER’s custody and transport them to an appropriate disposal site. However, any samples or sampling process byproducts that are or are assumed to be affected by regulated contaminants shall be packaged by IER in accordance with applicable law, and they shall be turned over to CLIENT. IER shall not under this Agreement arrange for or otherwise dispose of materials or substances affected by regulated contaminants. IER will, at CLIENT’s request, assist the CLIENT to identify appropriate alternatives for off-site treatment, storage, or disposal of such substances, but IER shall not make any independent determination about the selection of a treatment, storage or disposal facility, nor will IER subcontract such activities through transporters or others. CLIENT shall sign all manifests for the disposal of materials and/or substances affected by regulated contaminants. However, if CLIENT directs IER, IER’s staff, IER’s agent to sign such manifests and/or to hire for CLIENT a contractor to transport, treat, or dispose of the contaminated materials and/or substances, agent (notwithstanding any other provision of this Agreement to the contrary) so that IER shall not be considered a generator, transporter, or disposer of materials affected by regulated contaminants. Because involvement with the CLIENT’s contaminated samples can expose IER to risks, CLIENT shall, to the fullest extent permitted by law, waive any claim against Consultant, and indemnify, defend, and hold harmless IER from any claim or liability for injury or loss allegedly arising from IER’s containing, labeling, transporting, testing, storing, or other handling of CLIENT’s contaminated samples. CLIENT also shall compensate IER for any and all expenses incurred by IER in defense of any such claim (the term "any claim" means "any claim in contract, tort or statute alleging negligence, errors, omissions, strict liability, statuary liability, breach of contract, breach of warranty, negligent misrepresentation or other acts giving rise to liability"). Such compensation shall be based upon IER’s prevailing fee schedule and expense reimbursement policy.

Cross-Contamination
Sampling may result in unavoidable cross-contamination of certain subsurface areas, as when a probe or boring devise and/or equipment moves through a contaminated zone and links it to subsurface soil, aquifer, underground stream, or other hydrous body not previously contaminated. Because IER or any other similar firm or consultant is powerless to totally eliminate the risk despite use of due care, and because sampling is an essential element of IER’s services indicated herein, CLIENT shall, to the fullest extent permitted by law, waive any claim against IER, and indemnify, defend, and hold harmless IER from any claim or liability for injury or loss arising from cross-contamination allegedly caused by IER sampling. CLIENT shall also compensate IER for any time spent of expenses incurred by IER in defense of any such claim. Such compensation shall be based upon IER’s prevailing fee schedule and expense reimbursement policy. The term "any claim" used in this provision means "any claim in contract, tort, or statute alleging negligence, errors, omissions, strict liability, statutory liability, breach of contract, breach of warranty, negligent misrepresentation, or other acts giving rise to liability.")

CLIENT’s Responsibilities
The CLIENT shall provide all criteria and full information as to CLIENT’s requirements for the project; designate any persons to act with authority of CLIENT; examine and respond promptly to IER’s submissions; and give prompt written notice to IER whenever a defect in work has been noted. The CLIENT will provide for the full right of entry to allow IER to complete the work. While IER will take reasonable precautions to minimize any damage to the site, it is understood by CLIENT that in the normal course of work damage may occur, the correction of which is not part of this agreement. The CLIENT is responsible for payment of all fees in connection with this project.

Alteration of Instruments of Service
CLIENT agrees that designs, plans, specifications, reports, proposals and similar documents prepared by IER are instruments of professional service and, as such, no matter who owns or uses them, they may not under any circumstances be altered by any party except IER. CLIENT warrants that IER’s instruments of service will be used only and exactly as submitted by IER. Accordingly, CLIENT shall waive any claim against IER, and shall, to the fullest extent permitted by law, indemnify, defend, and hold harmless IER from any claim or liability for injury or loss arising from unauthorized alteration of IER’s instruments of service. CLIENT also shall compensate IER for any and all expenses incurred by IER in defense of any such claim (the term "any claim" means "any claim in contract, tort or statute alleging negligence, errors, omissions, strict liability, statuary liability, breach of contract, breach of warranty, negligent misrepresentation or other acts giving rise to liability"). Such compensation shall be based upon IER’s prevailing fee schedule and expense reimbursement policy.

Invoices, Reimbursable Expenses, Escalation of Fees
IER will submit invoices to CLIENT on IER’s standard invoice form. Payment terms are thirty (30) days. Partially completed items of work for which a fee has been specified may be billed based upon percentage of completion as estimated by IER, otherwise, invoices will be based upon IER’s schedule of standard hourly rates in effect at the time the work is performed. Past due balances are subject to interest of 1.0 percent per month, or the maximum permitted by state law, whichever is less. IER, after giving seven (7) days written notice, may suspend services under any Agreement until all past due accounts, including applicable interest, have been paid. In the event that the invoice is not paid voluntary and promptly, and must be referred to an attorney or agent for collection, the CLIENT agrees to pay to IER, IER's reasonable collection and attorney’s fee equal to 25 percent of the total amount due atthat time.

The minimum time segment for charging of fieldwork is four (4) hours. The minimum time segment for charging of all other work, such as professional and administrative services, is one (1) hour.

Reimbursable Expenses
Reimbursable expenses, those outside of the scope of the proposed services, are charged to the CLIENT at total cost plus a minimum of ten percent (10%) and include the following items:

Out of scope reproduction of plans, specifications and other documents, including plans and documents, but excluding documents reproduced for use by IER and any of its agents. IER reproduction charges for documents reproduced by IER are: black and white at $0.10 per page; color at $1.00 per page; and binding at $10.00 per report.

Out of scope permit application and filing fees advanced by IER. Such fees will be invoiced to CLIENT at cost plus a minimum of 10 percent (10%).

The cost of equipment rental, including where applicable equipment operators and subcontracted services, such as authorized photogrammetry, testing services, laboratory services, archeological services, and other specialized services, excluding those services which are explicitly included in the IER proposal.

If the services covered by this Agreement are subject to local or state taxes or fees, such additional costs will be charged to the project and are subject to reimbursement as provided herein.

Escalation of Fees
Fees and schedule commitments are subject to re-negotiations for unreasonable delay caused by CLIENT’s failure to provide specified facilities or information, or for delays caused by unpredictable occurrences, such as fires, floods, strikes, riots, unavailability of labor or materials or services, acts of God or of public enemy, or acts or regulations of any governmental agency. Temporary work stoppage caused by any of the above may result in additional costs beyond that outlined in the proposed Agreement. IER shall have the right to increase its compensation payable by the CLIENT to IER in the event that IER must modify services, facilities or equipment to comply with laws or regulations that become effective after execution of this Agreement, provided the IER give the CLIENT as much notice as possible as to the cause for escalation and the additional amounts involved.

Insurance
IER represents and warrants that it now has in full effect and will maintain the applicable insurances for the duration of this project.

Indemnification and Limitation of Liability
Application of the joint and several liability concept could result in IER becoming wholly liable for damages created directly or indirectly by regulated contaminants. CLIENT agrees that exposing IER to such a liability would be unfair, because IER had nothing whatsoever to do with creation of the issues and/or conditions. Accordingly, CLIENT shall, to the fullest extent permitted by law, indemnify, defend, and hold harmless IER from any claim or liability for injury or loss arising from IER being considered liable for creating issues and/or conditions or permitting one to exist, as a consequence of application of a joint and several liability concept. CLIENT also shall compensate IER for any and all expenses incurred by IER in defense of any such claim (the term "any claim" means "any claim in contract, tort or statute alleging negligence, errors, omissions, strict liability, statuary liability, breach of contract, breach of warranty, negligent misrepresentation or other acts giving rise to liability"). Such compensation shall be based upon IER’s prevailing fee schedule and expense reimbursement policy. The CLIENT agrees that IER’s total aggregate liability to the CLIENT and to all other parties associated with the project or its use, due to IER professional negligent acts, errors omissions, shall not exceed IER’s total fee for services rendered on the project.

The CLIENT shall make no claim for professional negligence, either directly or in a third-party claim against IER unless the CLIENT has first provided IER with a written certification executed by an independent professional currently practicing in the same discipline as IER. The certification shall: a) identify the name of the professional; b) specify each and every act or omission that the certifier contends is a violation of the standard of care identified in this Agreement; c) state in complete detail the basis for the certifier’s opinion that each such act or omission constitutes such a violation. This certificate shall be provided to IER not less than 60 calendar days prior to the presentation of any claim or the institution of any arbitration or judicial proceeding.

Disputes
In the event that a dispute should arise relating to the performance of the services to be provided under this Agreement, and should that dispute result in litigation in which IER prevails, it is agreed that IER shall be entitled to recover all reasonable costs incurred as a result of the claim, including staff time, court costs, attorney’s fees and other claim-related expenses. Not withstanding the foregoing, IER shall have the right to submit any controversy or claim arising out of or relating to this Agreement, or the breach thereof, to binding arbitration administered by the American Arbitration Association in accordance with the Construction Industry Arbitration Rules, and judgement on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

Consequential Damages
CLIENT shall not be liable to IER and IER shall not be liable to CLIENT for any consequential damages incurred by either party due to the fault of the other, regardless of: the nature of this fault; or whether it was committed by CLIENT or IER, their employees, agents, or subcontractors; or whether such liability arises in breach of contract or warranty, tort (including negligence), statute, or any other cause of action. Consequential damages include, but are not limited to, loss of use and loss of profit.

Confidentiality
IER agrees to keep confidential and to not disclose to any person or entity (other than IER’s employees and subcontractors), without the prior consent of CLIENT, all data and information not previously known to and generated by IER, or furnished to IER and marked "Confidential" by CLIENT; provided, however, that these provisions shall not apply to data that: are in the public domain; were previously known to IER; or were independently acquired by IER from third-parties under no obligation to CLIENT to keep said data and information confidential. These provisions shall not apply to information in whatever form that comes into the public domain through no fault of IER, nor shall they be interpreted to in any way restrict IER from complying with a legally enforceable order to provide information or data.

CLIENT agrees the IER may use and publish CLIENT’s name and a general description of IER’s services with respect to the project in describing IER’s experience and qualifications to others. CLIENT also agrees that any patentable or copyrightable concepts developed by IER in the course of IER’s services hereunder are the sole and exclusive property of IER.

Failure to Follow Recommendations
IER disclaims any and all responsibility and liability for problems that may occur during implementation of IER’s plans, specifications, or recommendations when IER is not retained to observe such implementation.

Defects in Service
CLIENT and CLIENT’s personel and contractors shall promptly inform IER of any actual or suspected defects in IER’s services, to help IER take prompt and effective measures that in IER’s opinion will help minimize the consequences of any such defect. CLIENT’s payment for services rendered shall be taken to mean that CLIENT is satisfied with IER’s services and is unaware of any defect.

Ownership of Instruments of Service
Any and all information, such as, but not limited to, plans, specifications, reports, boring logs, calculations, field data, field notes, laboratory test data, estimates, electronic media files, magnetic tapes (drives), and similar paper and electronic media (other than samples) prepared by or for IER as instruments of service are the property of IER. IER shall retain these instruments of service for a minimum of one (1) year following submission of project deliverables, during which period IER’s instruments of service will be made available for CLIENT’s review at any reasonable time.

Termination
This Agreement may be terminated by either party upon a minimum of 10 calendar days written notice in the event of substantial failure by the other party to perform in accordance with the terms of this Agreement. Such termination shall not be effective if the substantial failure has been remedied before expiration of the period specified in the written notice. In the event of termination, IER shall be paid for services performed to the termination notice date plus reasonable termination expenses. The expenses shall include any and all fees incurred by IER prior to receipt of the official termination notice date.

Governing Law
Unless otherwise provided, the substantive law of the state of New Jersey will govern the validity of this Agreement, its interpretation and performance, and remedies for contract breach or any other claims related to this Agreement.

Assigns
The CLIENT may not delegate, assign, sublet or transfer his duties, obligations or interests in this Agreement without the written consent of IER.

Prevailing Fee Schedule
The basic Fee Schedule for items previously listed as time rates and other services that may be required but are outside of the scope of the proposal:
Principal: $125.00 per hour
Project Manager: $85.00 per hour
Environmental Scientist: $75.00 per hour
Environmental Technician: $65.00 per
Administrative Staff: $45.00 per hour

	Copyright © 2005 Impact Environmental Remediation, Inc. All Rights Reserved. Reproduction in whole or in part in any medium without express written permission is prohibited.