Attached to and made a part of the Agreement between the (Client) and Sheffield Safety & Loss Control, LLC. (Consultant) in respect to any project work is performed by Consultant.
The Consultant shall perform for the Client professional consulting services on the Project to which this Agreement applies as hereinafter provided. These services will include serving as the Client’s professional consulting representative for the Project.
As used herein the term “this Agreement” refers to the Proposal Letter or Agreement to which these General Terms and Conditions are attached as if they were part of one and the same document.
3.0 CLIENT’S RESPONSIBILITIES
- Provide all criteria and full information as to Client’s requirements for the Project,
- Designate a person to act with authority on the Client’s behalf in respect to the implementation of consultants’ recommendations regarding the Project,
- Retain control over all aspects of the work at the Project site, including the direction and control of the means and methods of work by other contractors,
- Be responsible to ensure compliance with all applicable federal, state and local safety and health laws and regulations, including those issued by the U.S. Occupational Safety and Health Administration, which relate to the work being performed at the Project site,
- Be responsible to designate and require the use and maintenance of, all necessary safety equipment or appliances, including personal protective equipment, which may be required to be utilized by the project’s employees during performance of the work at the Project site,
- Direct the construction manager to correct, or have corrected, any and all work practices or physical conditions which may occur at the Project site during the performance of the work which may create or otherwise pose a safety or health hazard to project’s employees, including, but not limited to, correcting any such work practices or physical conditions which have been brought to the project’s attention by the Consultant,
All documents, including reports, electronic media, drawings and specifications, prepared or furnished by Consultant and its subsidiaries, independent professional associates, subconsultants and subcontractors pursuant to this Agreement are instruments of service in respect of a particular Project and the Consultant shall retain an ownership and property interest therein whether or not the Project is completed. Client may make and retain copies of such documents for information and reference in connection with the Project; however, such documents are not intended or represented to be suitable for reuse by Client, including extensions of the Project or on any other project, nor are they to be relied upon by anyone other than Client. Copies of documents that may be relied upon by Client are limited to printed copies (also known as hard copies) that are signed or sealed by Consultant. Files in electronic media format or text, data, graphic or other types that are furnished by Consultant to Client are only for convenience of Client. Any conclusion or information obtained or derived from such electronic files will be at the user’s sole risk. When transferring documents in electronic media format, Consultant makes no representations as to long-term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems or computer hardware differing from those in use by Consultant at the beginning of this assignment. Any reuse or disbursement of documents to third parties without written verification or project-specific adaptation by the Consultant will be at the Client’s sole risk and without liability or legal exposure to Consultant or its subsidiaries, independent professional associates, subconsultants, and subcontractors. Accordingly, Client shall, to the fullest extent by law, defend, indemnify and hold harmless the Consultant from and against any and all costs, expenses, fees, losses, claims, demands, liabilities, suits, actins and damages whatsoever arising out of or resulting from such unauthorized reuse or disbursement. Any verification or project-specific adaptation by Consultant will entitle the Consultant to further compensation at rates to be agreed upon by Client and the Consultant.
5.1 Neither the Client nor the Consultant shall assign, sublet or transfer any rights under or interest in (including, but without limitation, moneys that may become due or moneys that are due) this Agreement without the written consent of the other, except to the extent that any assignment, subletting or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this paragraph shall prevent the Consultant from employing such independent professional associates and consultants, as the Consultant may deem appropriate to assist in the performance of services hereunder.
5.2 Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than the Client and the Consultant, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the Client and the Consultant and not for the benefit of any other party. It is understood that this Agreement is not intended, either expressly or implied, for the benefit of any third person or party outside of the Client and its employees and that Consultant disclaims any obligation or duty, either expressly or implied, under this Agreement to be responsible for the safety or health of any third person or party at the Project site and further disclaims liability for personal injury or other damages to any third person or party occurring at the Project site.
Both parties consent to resolve a claim, counterclaim, dispute or other matter arising out of or relating to this Agreement or the breach thereof through arbitration. Such matters will be decided in accordance with the Construction Industry Arbitration rules of the American Arbitration Association then pertaining. Any arbitration will be specifically enforceable under the prevailing law of any court having jurisdiction. No arbitration arising out of, or relating to this Agreement may include, by consolidation, joinder or in any other manner, any person who is not a party to this Agreement. No consent to arbitration in respect of a specifically described claim, counterclaim, dispute or other matter in question will constitute consent to arbitrate any other claim, counterclaim, dispute or other matter in question which is not specifically described in such consent. The award rendered by the arbitrators will be final, judgment may be extended upon it in any court having jurisdiction thereof, and will not be subject to modification or appeal except to the extent permitted.
In the event the Client issues a purchase order or other instrument related to the Consultant’s services, it is understood and agreed that such document is for the Client’s internal accounting purposes only and shall in no way modify, add to, or delete any of the terms and conditions of this Agreement. If the Client does issue a purchase order or other similar instrument, it is understood and agreed that the Consultant shall indicate the purchase order number on the invoices sent to the Client.
Except as expressly agreed, the Client will not directly retain other consultants whose services are required in connection with the Project. In no event will the Consultant assume any liability or responsibility for the work performed by other consultants, or for their failure to perform any work, regardless of whether the Consultant hires them directly or as subconsultants, or only coordinate and monitor their work.
The Client agrees to provide a general liability insurance policy for, and to defend, indemnify, and hold the Consultant harmless of any and all claims by third parties arising out of or in any way related to our performance or non-performance of services, except claims for personal injury, death, or personal property damage, to the extent caused by the negligent misconduct of the Consultant’s employees.
10.1 It is not the intention of the Agreement that the Consultant be exposed to any liability for personal injury to any person or party at the Project site arising out of the activities of others, including the Client, or the services performed by the Consultant.
10.2 Neither party shall have liability for loss of product, loss of profit, loss of use, or any other indirect, incidental, special, or consequential damages incurred by the other party, whether brought as an action for breach of contract, breach of warranty, tort, or strict liability, and irrespective of whether caused or allegedly caused by either party’s negligence and the Client agrees to defend, indemnify and hold the Consultant harmless with respect to any such claim.
Notwithstanding any other provision of these General Terms and Conditions, and unless otherwise subject to a greater limitation, the Consultant’s liability to the Client for any loss or damage, including, but not limited to, special and consequential damages, arising out of or in connection with the accompanying Proposal or any related Agreement from any cause, including the Consultant’s professional negligent errors or omissions shall not exceed the greater of $15,000 or the total compensation received by the Consultant hereunder.
The Consultant will provide a project safety professional to oversee the implementation of the project’s safety and health program. It is understood that this position is intended to oversee, in general terms, that the safety policies are being followed at the project, and any such position is not intended to constitute an absolute assurance of safety with respect to any activity, potential contingency, or other event which might or could occur at the worksite. The Consultant cannot reasonably anticipate or predict each and every future hazard or workplace accident which might occur and specifically denies any legal duty or other obligation to do so.
All services of the Consultant and its independent professional associates, consultants and subcontractors will be performed in a reasonable and prudent manner in accordance with generally accepted practice for safety and health compliance consultants. All estimates, recommendations, opinions and decisions of the Consultant will be on the basis of the information available to the Consultant and the Consultant’s experience, technical qualifications, and professional judgment. All recommendations are advisory and intended for the purpose of assisting the project’s safety and health program. Implementation is the sole responsibility of the Client, or their designated construction manager. Observations and recommendations are the result of practices and conditions observed and information made available to the Consultant at the time and do not purport to imply or guarantee full compliance with Local, State, and Federal Regulations. Nor do audits, reports and recommendations signify or imply that other hazards do not exist There are no warranties of merchantability or fitness for a particular purpose or any other warranties or guarantees whatsoever, express or implied, with respect to any service performed or materials provided under this Agreement.
Unless the accompanying Agreement/Proposal provides otherwise, the proposed fees constitute the Consultant’s estimate to perform the services required to complete the Project, as the Consultant understands it to be defined. For those projects involving conceptual or process development work, activities often are not fully definable in the initial planning. In any event, as the project progresses, the facts developed may dictate a change in the services to be performed, which may alter the scope. The Consultant will inform the Client of such situations so that negotiation of change in scope and adjustment to the time of performance can be accomplished as required. If such change, additional services, or suspension of services results in an increase or decrease in the cost of or time required for performance of the services, whether or not changed by any order, an equitable adjustment shall be made and the Agreement modified accordingly. Costs and schedule commitments shall be subject to renegotiation for unreasonable delays caused by the Client’s failure to provide specified facilities or information, or for delays caused by unpredictable occurrences or force majeure, such as fires, floods, riots, strikes, unavailability of labor or materials, delays or defaults by suppliers of materials or services, process shutdown, acts of God or of the public enemy, or acts or regulations of any governmental agency. Temporary work stoppage caused by any of the above will result in additional cost (reflecting a change in scope) beyond that outlined in this proposal.
If Client fails to make any payment due the Consultant for services and expenses within thirty days after receipt of the Consultant’s statement therefore, the amounts due the Consultant will be increased at the rate of 1% per month from said thirtieth day, and in addition, the Consultant may, after giving seven days written notice to the Client, suspend services under this Agreement until the Consultant has been paid in full all amounts due for services, expenses and charges. The Client shall be responsible for the reasonable cost of collection, including attorney’s fees and related expenses.
The obligation to provide further services under this Agreement may be terminated by either party upon thirty days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. In the event of any termination, the Consultant will be paid for the remaining contract amount, all reimbursable expenses and termination expenses.
This Agreement is to be governed by the law of the principal place of business of the Consultant.
The standard of care applicable to Consultant’s services will be the degree of skill and diligence normally employed by safety and health professionals or consultants performing the same or similar services at the time said services are performed.
In the event the Consultant is to prepare for or appear in any litigation on behalf of the Client or is to make investigations of reports on matters not covered by this Agreement, or is to perform other services not included herein, additional compensation shall be paid the Consultant at current hourly rates.
The Client will secure and maintain such insurance as to protect the consultant from claims brought from any third party and from claims for bodily injury, death or property damage which may arise from the performance of Consultant’s services under this Agreement. Client agrees to provide the Consultant with Commercial General Liability Insurance (Occurrence Coverage), including Umbrella/Excess Liability Insurance (Occurrence Coverage) for the duration of the project.
The Consultant shall proceed with the services under this Agreement promptly and will diligently and faithfully prosecute the work to completion in accordance with applicable engineering standards subject to any delays due to strikes, action of the elements, act of any government, civil disturbances or any other cause beyond the reasonable control of the Consultant.
All claims against Consultant, whether grounded in contract, tort, or otherwise, shall be brought no later than three years from the date of issuance of the invoice relating to the services giving rise to the claim. No claim may be brought unless notice has been given as described below in Section 22.0.
If the Client discovers a defect, fault, error, non-compliance or omission in Consultant’s services, it shall give written notice to the Consultant within thirty days. Notice shall include a detailed description of the nature of the defect, fault, error, non-compliance or omission.
Description of Services
Consultant agrees to perform professional services for Client subject to and limited by the following terms and conditions:
- Any audit will be based upon objective, observable physical hazards or exposures which were in existence and observable by Consultant while Consultant is present at the worksite.
- Consultant has not been engaged to anticipate or predict any future hazards or accidents which may occur at the worksite after the Consultant has completed its site visit.
- It is understood that the Consultant’s audit and conclusions are intended to assist Client with its loss control program and that it is not intended nor does the Consultant warrant or guarantee that Client’s loss control program is in all aspects compliant with any statute, regulation or rule regulating occupational safety and health, including the Occupational Safety and Health Act of 1970.
- It is understood that the audit is limited and intended to identify observable, physical conditions or hazards which are specifically identified and referenced in regulations issued by the Occupational Safety and Health Administration under 29 CFR 1926, et. seq. for the construction industry.
- Consultant is not responsible for performing any corrective or remedial action to address any hazards which may be identified in Consultant’s audit and Consultant disclaims any right or duty to undertake such action which may be the responsibility of Client’s or other parties at the worksite.
- In conducting its audit, Consultant is relying upon information provided by Client and Consultant assumes no responsibility for the accuracy of such underlying information in its audit.
- The audit is intended to be and is limited to identification of observable, physical and other hazards to which employees of the Client may be exposed and Consultant expressly denies and disclaims any legal duty or other obligation to any third person or party for any of the Consultant’s actions taken regarding such audit, including, but not limited to, physical injury or property damage.
- It is understood that the frequency, scheduling, duration and location of the Consultant’s audits at the worksite are subject to and at the direction of the Client.
- It is understood that training provided by Consultant is intended to provide Client’s employees with a basic awareness and overview of regulations used by the Occupational Safety and Health Administration assessed under 29 CFR 1926. et. seq. and that Consultant does not and cannot warrant the level of understanding which such employees may achieve from such training to perform any particular task or job function.
- It is understood that the term “training” within this agreement is intended to mean a basic understanding of the meaning of the foregoing regulations and that any training provided by Consultant is not intended to nor will it be construed to mean instructing or educating Client’s employees on how to perform a specific job function or task at a worksite in a particular manner.
- The frequency, scheduling, duration and content (including specific OSHA regulations) of Consultant’s training of Client’s employees are at the direction of Client. Consultant is not responsible for the failure of any of Client’s employees to attend and receive training from Consultant nor is Consultant responsible for conducting any follow up or refresher training for any of Client’s employees unless specifically requested by Client.
- Consultant assumes no responsibility to provide training to any of Client’s employees either verbally or in written materials in a language other than English nor is Consultant responsible for any liability of Client’s employees to understand training provided in the English language.
- Consultant may provide written manuals to Client containing basic safety and health policies which are intended for Client’s employees and not for the use of any third person or party. It is understood that any such manual is intended to set forth and describe in general terms basic policies to be followed at a worksite and that such manual is not intended to constitute an operations handbook to be applicable to any potential contingency or other event which might or could occur at the worksite. Consultant cannot reasonably anticipate or predict in such manual each and every future hazard or workplace accident which might occur and specifically denies any legal duty or other obligation to do so in such manual.
- Consultant does not represent the application of such manual to any specific project or worksite other than to the Client’s specific project or worksite for which the manual has been issued and approved.
- Consultant assumes no responsibility to conduct ongoing reviews of such manual or to provide revisions of the contents of such manual unless specifically requested to do so by Client.
- Client understands that any manual remains the work product of Consultant and is not approved for use by Client until Client has approved the final draft of such manual and Consultant has received final payment for such manual from Client.
- It is understood that frequency, scheduling, duration and content of any pre-construction or other periodic meetings with Consultant is at the direction of Client.
- Client understands that any and all topics or other subject matters discussed at such meetings are for the purposes of identifying basic and general policies to be utilized at the Client’s specific project or worksite and are not intended to identify each and every safety or health hazard which might or could occur at the project or worksite or to identify each and every OSHA regulation which may apply to each and every safety or health hazard which might or could occur at the project or worksite.
- Client assumes responsibility for preparing and maintaining any documentation of the facts and circumstances which occurred at any such meeting which may be required for any contractual or other regulatory purpose.
- Client understands that it is responsible for informing Consultant of the full scope of consulting services or assistance, including identification of specific hazards or other conditions, which it is requesting the Consultant to provide and that Consultant assumes no responsibility for providing consulting services or other assistance beyond those which have been identified by Client.
ONSITE SAFETY SERVICES
- Consultant agrees to provide services to Client to communicate on Client’s behalf with representatives of the Occupational Safety and Health Administration and other regulatory agencies and third parties, as directed by Client.
- Consultant agrees to assist Client in Client’s implementation of Client’s loss control and occupational safety and health compliance program but Consultant assumes no liability to implement such programs or for any personal injury or property damage sustained by Client or any third person or party by reasons of Client’s failure to implement such programs.
- Consultant represents that it has no authority, express or implied, to implement Client’s loss control or occupational safety and health compliance programs and Client acknowledges and agrees with such representation.
- It is further understood that, from time to time, Consultant may communicate with subcontractor representatives at Client’s project or worksite for the purpose of informing the subcontractor of certain safety and health rules established by Client or the Owner at such project or worksite and that such communication is for information purposes only and that Consultant assumes no liability to control the actions of the subcontractor, for the failure of any subcontractor representative or other person or party to comply with such communication or for any personal injury or property damage which may result.
- Consultant assumes no responsibility to identify, assemble, take custody for or to otherwise preserve or maintain any physical artifacts, documents, statements or other evidence which may relate, directly or indirectly, to any accident or other event which may occur at Client’s project or worksite.
- In the event that any accident occurs at Client’s project or worksite, Consultant agrees to participate in the accident investigation if specifically requested by Client.
- Client will at all times determine the scope of Consultant’s participation in the accident investigation, which may include, from time to time, that Consultant will provide personnel to Client to report to and participate as directed by Client.
- Consultant will assist Client in performing a post accident investigation which will attempt to identify the root cause(s) of the accident if requested by Client. Client is responsible for informing Consultant of the full scope of the post accident investigation, including the format and nature and content of any written analyses and conclusions to be included in any post accident investigation report. Consultant assumes no liability for the accuracy or truth of information it may receive from Client or other third persons or parties during the course of conducting the post-accident investigation on behalf of the Client.
- Client agrees to indemnify and to reimburse Consultant for any legal fees or other expenses which may be incurred in the event that Consultant is required to testify or otherwise participate in any legal or regulatory proceedings arising out of the accident, including Consultant’s participation in any post accident investigation on behalf of Client.
- Consultant agrees to cooperate with Client’s representatives, including Client’s legal counsel, to conduct the post-accident investigation and to develop and maintain any applicable legal privileges.
- It is understood that any post-accident reports or other documents, including photographs, which may be generated by Consultant at the direction of Client are the property of Client and that Consultant has no obligation to maintain or preserve such documents unless specifically requested by Client.
MODIFICATION OF AGREEMENT
- It is understood that the foregoing Addendum - Terms and Conditions, constitute material terms and conditions of the Agreement between Consultant and Client. In the event that any term or condition may be found by a court to be unenforceable, the remaining terms and conditions remain in full force and effect. The terms and conditions of this Addendum may not be amended or modified without specific written agreement executed by a representative of Client and Consultant.