GENERAL TERMS AND CONDITIONS FOR SERVICES

 

  1. Applicability.

 

  • THESE TERMS AND CONDITIONS FOR SERVICES (these “Terms”) are the only terms that govern the provision of services by SFI Compliance, Inc. (“SFI”) to the party identified as the Client in any accompanying Safety Consulting and Training Agreement (“Client”).

 

  • The accompanying Safety Consulting and Training Agreement (the “Services Agreement”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Services Agreement, the Services Agreement shall govern, unless the Services Agreement expressly states that these Terms shall

 

  • These Terms prevail over any of Client’s general terms and conditions regardless whether or when Client has submitted its request for proposal, order, or such terms. Provision of services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.

 

  1. Services. SFI shall provide the services to Client as described in the Services Agreement (the “Services”) in accordance with these

 

  1. Performance Dates. SFI shall use reasonable efforts to meet any performance dates specified in the Services Agreement, and any such dates shall be estimates

 

  1. Client’s Obligations. As an express condition to SFI’s performance of the Services, Client shall:

 

  • cooperate with SFI in all matters relating to the Services and provide such access to Client’s premises, and such office accommodation and other facilities as may reasonably be requested by SFI, for the purposes of performing the Services;

 

  • respond promptly to any SFI request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for SFI to perform Services in accordance with the requirements of this Agreement;

 

  • provide such Client materials or information as SFI may request to carry out the Services in a timely manner and ensure that such Client materials or information are complete and accurate in all material respects;

 

  • obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start; and

 

  • provide sufficiently qualified personnel capable of performing each of the above obligations of Client set forth in Section 4 or otherwise set forth in this Agreement; and

 

  • disclose to SFI all known hazards, unsafe conditions, and unsafe conduct committed by the Client or its personnel, subcontractors, vendors, suppliers, or

 

  1. Client’s Acts or Omissions. If SFI’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, SFI shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay. Client expressly acknowledges and agrees that its failure to perform or to timely perform any of its obligations set forth in Section 4 of this Terms or otherwise set forth in this Agreement may adversely affect the SFI’s timely performance of the Services or increase the cost of the Services and that Client shall be responsible for variations to the fees and other charges for the Services arising from such increase in cost of the

 

  1. Change Orders.

 

  • If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in SFI shall, within a reasonable time after such request, provide a written estimate to Client of:

 

  1. the likely time required to implement the change;

 

  1. any necessary variations to the fees and other charges for the Services arising from the change;

 

  • the likely effect of the change on the Services; and

 

  1. any other impact the change might have on the performance of this

 

  • Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section

 

  • Notwithstanding Section 6(a) and Section 6(b), SFI may, from time to time, change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Services

 

  • SFI may charge for the time it spends assessing and documenting a change request from Client on a time and materials basis in accordance with the Services

 

  1. Fees and Expenses; Payment Terms; Interest on Late Payments.

 

  • In consideration of the provision of the Services by the SFI and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the Services

 

  • Client shall pay all invoiced amounts due to SFI within thirty (30) days from the date of SFI’s Client shall make all payments hereunder in U.S. dollars by wire transfer, check, or otherwise immediately available funds.

 

  • In the event payments are not received by SFI within thirty (30) days after becoming due, SFI may:

 

  1. charge interest on any such unpaid amounts at a rate of 5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and

 

  1. suspend performance for all Services until payment has been made in

 

  • The parties agree that after the initial twelve (12) months of the term of this Agreement, for SFI may increase its standard fee rates specified in the Services Agreement upon written notice to

 

  1. Taxes. Client shall be responsible for all personal property, sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder, excluding taxes relating to SFI’s income. All such taxes, duties, and charges shall be paid directly by Client. SFI, at its option, may pay any tax, duty, or charge that is the responsibility of Client pursuant to this Section 8, and Client shall promptly reimburse SFI

 

  1. Intellectual Property.

 

  • All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Client under this Agreement or prepared by or on behalf of the SFI in the course of performing the Services, including any items identified as such in the Services Agreement (collectively, the “Deliverables”) shall be owned by Client; provided, however, that Client has paid all amounts due hereunder (including, without limitation, fees, expenses, and interest pursuant to Section 7 and taxes, duties, and charges pursuant to Section 8).  Client hereby grants SFI a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable SFI to make reasonable use of the Deliverables and the Services.

 

  • SFI and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to all documents, data, know-how, methodologies, software, and other materials, including computer programs, reports, and specifications, provided by or used by SFI in connection with performing the Services, in each case developed or acquired by the SFI prior to the commencement of this Agreement (collectively, the “Pre-Existing Materials”), including all Intellectual Property Rights therein. SFI hereby grants Customer a license to any Pre-Existing Materials on a non-exclusive, worldwide, non-transferable, non- sublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent incorporated in, combined with, or otherwise necessary for the use of the Deliverables and the

 

  1. Confidential Information.

 

  • All non-public, confidential, or proprietary information of each party, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by either party, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and marked, designated, or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by the receiving party without the prior written consent of the disclosing party. Confidential Information does not include information that is:

 

  1. in the public domain by means other than breach of this Agreement;

 

  1. known to the receiving party at the time of disclosure or is independently developed by the receiving party subsequent to such disclosure without reference to the disclosing party’s Confidential Information; or

 

  • rightfully obtained by the receiving party on a non-confidential basis from a third

 

  • Each party agrees to:

 

  1. not disclose or divulge the other party’s Confidential Information to any person;

 

  1. use the other party’s Confidential Information for its own benefit or the benefit of others;

 

  • employ at least the same degree of care in protecting the other party’s Confidential Information as it employs in protecting its own Confidential Information, but not less than a reasonable degree of care; and

 

  1. upon termination of this Agreement, or at any time at the request of the other party, return to the other party or destroy all copies of the other party’s Confidential

 

  • The parties acknowledge and agree that money damages may not be a sufficient remedy for any breach of this Section 10 and each party shall be entitled to injunctive relief, specific performance, and/or other equitable relief for any violation of threatened violation of this Section. Any remedy under this Section 10(c) shall not be the exclusive remedy for violation of this Section 10 or this Agreement and shall be in addition to all other remedies available at law or Each party hereby waives any required for securing or posting of a bond in connection with any remedy under this Section 10(c).

 

  • In the event a party receives a subpoena or other validly issued administrative or judicial process requesting the disclosures of the other party’s Confidential Information, the party will promptly notify the other party and will cooperate (at the other party’s expense) with the defense of such demand. Unless the demand shall have been timely quashed or extended, the party receiving the demand shall thereafter be entitled to comply with such demand when and to the extent required by

 

  • Notwithstanding the foregoing, each party may disclose the other party’s Confidential Information to its employees, subcontractors, and authorized agents who have a need to know such Confidential Information to fulfill its obligations under this

 

  1. Representation and Warranty.

 

  • SFI represents and warrants to Client that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this

 

  • The SFI shall not be liable for a breach of the warranty set forth in Section 11(a) unless Client gives written notice of the defective Services, reasonably described, to SFI within ten (10) days of the time when Client discovers or ought to have discovered that the Services were

 

  • Subject to Section 11(b), SFI shall, in its sole discretion, either:

 

  1. repair or re-perform such Services (or the defective part); or

 

  1. credit or refund the price of such Services at the pro rata contract

 

  • THE REMEDIES SET FORTH IN SECTION 11(c) SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND SFI’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a).

 

  • CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT SERVICES PROVIDED HEREUNDER ARE LIMITED TO CONSULTING AND ADVISORY SERVICES. CLIENT FURTHER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE COMPLIANCE WITH ALL APPLICABLE SAFETY AND HEALTH REGULATIONS, INCLUDING THE RESULT OF ANY ENFORCEMENT OF SUCH SAFETY AND HEALTH REGULATIONS, SHALL BE THE SOLE RESPONSIBILITY OF CLIENT AND NOT THAT OF

 

  1. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(A) ABOVE, SFI MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR

 

  1. Limitation of Liability.

 

  • IN NO EVENT SHALL SFI BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SFI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

 

  • IN NO EVENT SHALL SFI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SFI FOR THE SPECIFIC SERVICE DATE(S) GIVING RISE TO THE

 

  • The limitation of liability set forth in Section 13(b) above shall not apply to (i) liability resulting from SFI’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from SFI’s gross  negligent acts or omissions.

 

  • Notwithstanding anything to the contrary in this Agreement, SFI expressly disclaims and Client expressly assumes all liability for all hazards, unsafe conditions, or unsafe conduct committed by Client of its employees, subcontractors, vendors, suppliers, or visitors at the Client’s job sites, whether known or unknown, at the time Services are performed under this Agreement

 

  1. Termination.

 

  • This Agreement commencement on the date set forth in the Services Agreement and shall remain in effect until:

 

  1. the expiration date set forth in the Services Agreement, if any;

 

  1. terminated by SFI pursuant to Section 14(b); or

 

  • terminated by either party without cause upon ninety (90) days prior written

 

  • In addition to any remedies that may be provided under this Agreement, SFI may terminate this Agreement with immediate effect upon written notice to Client, if Client:

 

  1. fails to pay any and all amounts when due under this Agreement and such failure continues for thirty

(30) days after Client’s receipt of written notice of nonpayment;

 

  1. has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or

 

  • becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

 

  • Termination of this Agreement, whether for cause or without cause, shall not release either party from any liabilities that accrued on or before the date of termination or that may thereafter arise with respect to any act or omission occurring on or before the date of

 

  1. Insurance.

 

  • During the term of this Agreement and for a period of twelve (12) months thereafter, Client shall, at its own expense, maintain and carry insurance in full force and effect for each job site on which Services shall be performed hereunder. Such insurance coverage shall:

 

  1. include, without limitation, commercial general liability and workers’ compensation;

 

  1. equal a sum no less than an amount reasonably necessary to provide adequate insurance coverage as compared to other job sites of similar size and character; and

 

  • be retained by financially sound and reputable

 

  • Upon SFI’s request, Client shall provide SFI with a certificate of insurance from Client’s insurer evidencing the insurance coverage specified in these The certificate of insurance shall name SFI as an additional insured.

 

  • Client shall provide SFI with fourteen (14) days’ advance written notice in the event of a cancellation or material change in Client’s insurance Except where prohibited by law, Client shall require its insurer to waive all rights of subrogation against SFI’s insurers and SFI.

 

  1. Indemnification.

 

  • Subject to the terms and conditions set forth in Sections 16(b) and (c) Client (the “Indemnifying Party”) shall indemnify, hold harmless, and defend SFI and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, the “Indemnified Party”) against any and all losses, damages, diminutions in value, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and attorneys’ fees, that are incurred by the Indemnified Party (collectively, “Losses”), arising out of or related to:

 

  1. The breach or non-fulfillment of any representation, warranty, or covenant under this Agreement by Indemnifying Party or its personnel;

 

  1. Any negligent or more culpable act or omission of Indemnifying Party, including any reckless or willful misconduct) in connection with the performance of its obligations under this Agreement;

 

  • Any bodily injury, death of any person, or damage to real or tangible personal property caused by negligent or more culpable acts or omissions of Indemnifying Party or its personnel (including any reckless or willful misconduct;

 

  1. Any failure by Indemnifying Party to comply with any applicable federal, state, or local laws, regulations, or codes in the operation of Client’s business;

 

  1. Any hazard, unsafe condition, or unsafe conduct committed by Client or its employees, subcontractors, vendors, suppliers, and visitors, whether known or unknown, at the Client’s job site(s) where Services are

 

  • Notwithstanding anything to the contrary in this Agreement, Indemnifying Party is not obligated to indemnify, hold harmless, or defend Indemnified Party against any claim (whether direct or indirect) if such claim or corresponding Losses arise out of or result from Indemnified Party’s:

 

  1. Negligence or more culpable act or omission (including reckless or willful misconduct); or

 

  1. Bad faith failure to materially comply with any of its material obligations set forth in this

 

  • Indemnified Party shall give Indemnifying Party prompt written notice (a “Claim Notice”) of any Losses or discovery of facts on which Indemnified Party intends to base a request for indemnification under Section 16(a). Indemnified Party’s failure to provide a Claim Notice to Indemnifying Party under this Section 16(c) does not relieve Indemnifying Party of any liability that Indemnifying Party may have to Indemnified Party, but in no event shall Indemnifying Party be liable for any Losses that result directly from a delay in providing a Claim Notice, which delay materially prejudices the defense of the related third-party

 

  1. Waiver. No waiver by SFI of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

 

  1. Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of SFI including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes, or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials, or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of thirty (30) days, the party not prevented from performing hereunder shall be entitled to give notice in writing to the non-performing party to terminate this

 

  1. Assignment. Neither party shall assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party. SFI may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of SFI’s assets without Client’s consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning party of any of its obligations under this Agreement.

 

  1. Relationship of the Parties. The relationship between the parties is that of independent contractors, and such relationship is governed solely by this Agreement. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

 

  1. No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms, except that an Indemnified Party shall have the right to enforce Section 16

 

  1. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of

 

  1. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America located in the County of Denver, Colorado or the courts of the State of Colorado located in the County of Douglas, Colorado, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or

 

  1. Attorneys’ Fees. The prevailing party to any legal suite, action, or proceeding arising out of or relating to this Agreement shall be entitled to recover its costs and reasonable attorneys’ fees incurred in connection

 

  1. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Services Agreement or to such other address that may be designated by the receiving party in All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), email, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

 

  1. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other

 

  1. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Intellectual Property, Confidential Information, Limitation of Liability, Indemnification, Governing Law, Insurance, Submission to Jurisdiction, and

 

  1. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each

 

  1. Headings. The headings and captions contained in this Agreement are for convenience of reference only and shall not affect the meaning and interpretation of this