1-Terms Conditions.docx

VIRGIN TOWN

TERMS AND CONDITIONS

ARTICLE 1: DEFINITIONS

1.1 Hourly Rate

The billing rate charged towards each project for all work expended. Hourly rates are based on the employee pay rate times a multiplier to cover employee pay, plus all overhead costs, and profit. Unless otherwise agreed upon, all additional services outside of the agreed-upon scope will be billed at standard hourly rates, plus reimbursable expenses.

1.2 Reimbursable Expenses

Expenditures made by _____________________, its employees or its consultants in the interest of the Project. Reimbursable Expenses include but are limited to:

1.2.1 Expense of transportation, subsistence and lodging when traveling in connection with the Project.

1.2.2 Expense of messenger service, field office expenses, and fees paid for securing approval of authorities having jurisdiction over the Project.

1.2.3 Expenses of all reproduction, postage and handling, shipping charges of drawings, specifications, reports or other Project-related instruments of service of _____________________.

1.2.4 Expense of preparing perspectives, renderings or models.

ARTICLE 2: COMPENSATION

2.1 Invoicing Procedure

Virgin Town will be invoiced at the end of the first calendar month following the effective date of the Agreement and at the end of each calendar month thereafter. Such invoices shall reflect billing for work performed by _____________________ and Reimbursable Expenses incurred during the month invoiced. Payment on an invoice is due upon 15 days of receipt of the invoice by Virgin Town. In the event of a dispute regarding billing, Virgin Town shall pay all undisputed amounts per this Article.

2.2 Late Payment

Virgin Town shall pay _____________________’s periodic invoices for services as agreed herein. Invoices not paid within forty-five (45) days of the invoice date shall be subject to interest at the rate of 1-1/2 percent per month, compounded monthly, from date of billing until paid, prejudgment and post judgment. The invoice amounts shall be presumed to be correct unless Virgin Town notifies _____________________ in writing within thirty (30) days of receipt. If Virgin Town fails to pay an invoice when due, _____________________ may suspend all services, and withhold any and all documents, instruments and information regarding _____________________’s services on any project until such invoice is paid in full and satisfactory arrangements made to ensure payment for further services.

2.3 Retainer Fee

If a retainer fee is specifically indicated as part of this Agreement, said fee shall be due and payable immediately upon notice to proceed. Work may be suspended at any time until retainer fee is received.

ARTICLE 3: SPECIAL TERMS AND CONDITIONS

3.1 Additional Services

Any services performed that are reasonably necessary due to circumstances not contemplated by __________________ at the commencement of this Agreement, and which are approved in writing by Virgin Town, shall constitute Additional Services and shall be paid for on a time and materials basis in accordance with the normal hourly rates and reimbursable expenses charged by __________________ for such services.

3.2 Termination for Cause

This Agreement may be terminated by either party upon seven (7) days’ written notice should the other party fail substantially to perform in accordance with this Agreement through no fault of the party initiating the termination.

3.3 Termination without Cause

This Agreement or a Project Addendum may be terminated by Virgin Town upon at least seven (7) days’ written notice to _____________________ in the event that the Project is permanently abandoned or Virgin Town determines, in its sole discretion, that it does not desire to continue the Project.

3.4 Limitation of Liability

Any liability of _____________________ which may arise, directly or indirectly, from any act, error and/or omission, professional or otherwise, including breach of this Agreement or the negligence of _____________________, its agents, employees, or subcontractors shall not, in the aggregate, exceed that amount of compensation to be paid to _____________________ pursuant to this Agreement.

All claims by Virgin Town shall be deemed relinquished unless filed within one (1) year after substantial completion of _____________________’s services.

3.5 Limited Warranty

______________ shall promulgate and prepare findings, recommendations, specifications, or advice provided hereunder in accordance with the standards of the consulting engineering profession in Utah.

3.5 Ownership of Documents

Virgin Town shall be deemed the author and owner of these documents and shall retain all common law, statutory and other reserved rights, including copyrights. No other use is authorized, intended or contemplated.

3.6 Virgin Town Information

_____________________ shall have the right to rely on any and all information supplied to _____________________ by or through Virgin Town or its representative, and shall not have a duty to verify the accuracy of such information unless otherwise agreed herein.

ARTICLE 4: GENERAL TERMS AND CONDITIONS

4.1 Applicable Law

This Agreement shall be interpreted and enforced under the laws of the State of Utah.

4.2 Assignment Subcontracting

Neither Virgin Town nor _____________________ shall assign its interest in this Agreement without the written consent of the other.

4.3 Force Majeure

_____________________ shall not be liable for failure of performance or failure of delay in delivery by reason of any event beyond the control of _____________________, including, but not limited to, strikes; labor disputes; fire; flood; weather; embargo; war or other hostilities; government authority or regulation; acts of God; shortage of material or fuel; as a result of actions of Virgin Town, record owner, or any other person; or as a result of the extension of time granted by Virgin Town. Upon the occurrence of such delay, _____________________ shall receive an equitable extension of time for completion of the Agreement.

4.4 Severability: Waiver

In the event any provisions of this Agreement shall be held to be invalid and unenforceable, the remaining provision shall remain valid and binding upon the parties. One or more waiver of any term, condition or other provision of this Agreement by either party shall not be construed as a waiver of a subsequent breach of the same of any other provision.

4.5 Modification and Interpretation

This Agreement may be amended only by written instrument expressly referring hereto and duly sighed by the parties. This Agreement constitutes the entire and integrated Agreement between the parties hereto and supersedes all prior negotiations, representations and/or agreements, written or oral. This Agreement shall be construed and interpreted as if drafted equally by Virgin Town and _____________________. Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against _____________________.

4.6 Dispute Resolution

Any dispute arising under or relating to this Agreement shall be resolved in the following manner: (1) mediation in good faith with each party to pay one half of the mediation costs; (2) at both party’s option, arbitration in accordance with the terms and provisions of the Revised Utah Uniform Arbitration Act and judgment on the award may be entered in any court having jurisdiction thereof; and (3) litigation. Any arbitration or litigation shall occur in the Utah State Courts in and for Washington County, State of Utah.