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CONSULTING SERVICES TERMS AND CONDITIONS

NET SERVE, INC. (“NSI”) and Utility Contractors Association of Washington (“Customer”) hereby enter into a contract for Services (as defined below) which shall be governed by these Terms and Conditions, ALL OF WHICH CUSTOMER HAS READ AND UNDERSTANDS AND TO WHICH IT AGREES.

1.         Scope of Work.  NSI will furnish the services more fully described on the Work Order appearing separately and incorporated herein by this reference (the “Services”), and Customer shall pay for the Services at the prices and on the terms set forth in Work Order.  NSI will not be responsible for work which is not clearly stated on the Work Order.

2.         Changes in Work.  Customer may request a change in the Services by signing a written change order which shall describe the change and provide for the adjustment, if any, in the price to be paid to NSI.  NSI will not be obligated to proceed with any change in the work until the written change order is completed, agreed and signed by NSI and Customer.

3.         Changed Conditions.  If NSI becomes aware of any fault, defect or condition which may affect the way in which the Services are to be delivered, which was not previously known by NSI or readily discoverable by NSI in the usual course of assessing the scope of work and pricing the job, or if NSI should encounter concealed, unknown or latent conditions during the performance of the Services which differ materially from those ordinarily encountered, Customer may either (a) terminate this contract for Services and pay NSI for all labor and materials through the date of termination or (b) pay for additional labor, supervision, material, supplies used by NSI to correct said condition.

4.         Indemnity Regarding Intellectual Property.  In the event any intellectual property (including without limitation copyrights, trademarks, trade secrets or patents) to which a third-party has rights is provided by either party, the providing party agrees to indemnify and hold the other party harmless from and against any and all claims that may arise due to the providing party's violation of licensing agreements, copyright laws or other laws protecting intellectual property.

5.         Non-Disclosure of Confidential Information:  At all times, both during and after the period during which Services are provided: (a) the use by each party (the “Recipient”) of the Confidential Information of the other (the “Discloser”) shall be only for the benefit of the Discloser; and (b) the Recipient agrees to keep in confidence and trust all Confidential Information, and neither to use nor to disclose any Confidential Information or anything relating to it without the Discloser’s prior written consent. “Confidential Information” is to be construed broadly and includes, but is not limited to, all of the following: business methods, business opportunities, data and other recorded information, customer lists and information, designs, devices, discoveries, drawings, ideas and proposals, inventions (whether patentable, copyrightable, or otherwise subject to intellectual property protection, and whether or not reduced to practice), know-how, marketing plans, materials and documents, finances, pricing, procedures and products, programs, research, software, sources of supply, specifications, techniques, contacts and relationships, texts, trade secrets, specifications, and the like, all whether in preliminary or final form and in and on any media whatsoever, that are created, conceived, reduced to practice, developed, discovered, invented or made, whether before or during the term of this Agreement.

6.         Non-Solicitation: Customer agrees that during the period the Services are provided and for twenty-four (24) months thereafter neither it nor any person or entity affiliated with it will directly or indirectly employ or otherwise engage in any capacity any person who is or has been an employee or an independent contractor of NSI at any time during the period Services were provided.

 

7.         Workmanship and Warranty.  NSI will perform the Services in accordance with the Exhibit A and the specifications prepared pursuant thereto, using good workmanship and standards generally accepted in the technology consulting business.  THIS WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY PROVIDED BY NSI AND IS IN LIEU OF ALL OTHER WARRANTIES RELATING TO THE WORK DESCRIBED IN THE QUOTATION, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABILITY, OR THAT THE SERVICES, MATERIALS OR EQUIPMENT PROVIDED ARE FIT OR SUITABLE FOR A PARTICULAR PURPOSE.  No representative of NSI is authorized to extend or expand this warranty in any manner.

8.         Limitation on Liability.  CUSTOMER AGREES THAT FOR ANY BREACH BY NSI HEREUNDER, NO REMEDY AGAINST NSI OR ANY OF ITS AFFILIATED COMPANIES OR SHAREHOLDERS FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOST SALES, INJURY TO PERSONS OR PROPERTY, OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL LOSS) SHALL BE AVAILABLE TO CUSTOMER.  IN ADDITION, CUSTOMER AGREES THAT ITS SOLE REMEDY IN THE EVENT OF A BREACH OF WARRANTY WITH RESPECT TO AN ITEM OF SERVICES WILL BE CORRECTION OF SUCH BREACH, IF CORRECTIBLE, OR IF CORRECTION IS NOT POSSIBLE OR ECONOMICALLY FEASIBLE (IN THE JUDGMENT OF NSI) THEN CUSTOMER’S REMEDY SHALL BE LIMITED TO RETURN OF THE CONTRACT PRICE.

9.         Delay.  If NSI is delayed in the progress or completion of the work due to any act, occurrence or condition beyond NSI’s control, then the estimated or agreed completion date, if any, shall be extended for a reasonable period of time.  NSI shall be entitled to additional compensation for all costs occasioned by the delay.

10.        Overtime and Premium Pay for Labor.  The price on the Work Order is based on a normal eight-hour working day, and no provision has been made for overtime or premium pay.  Should Customer request the work to be performed at times or in a manner which requires payment of overtime or premium pay by NSI, such request must be in writing and must include Customer’s agreement to pay the additional labor charges occasioned thereby, including applicable federal and state payroll taxes, workers compensation and liability insurance premiums and fringe benefits, plus reasonable charges for additional supervision and profit.

 

11.        Insurance.  NSI maintains liability insurance to protect itself against claims which arise out of or result from its operations, including the proposed installation for Customer.

12.        Security Interest.  Customer hereby grants to NSI a security interest in all material, products, machines, equipment and other items of personal property delivered to Customer under this Agreement, and this document shall constitute a security agreement for purposes of the applicable Uniform Commercial Code.  This security agreement is given solely and exclusively to secure payment in full of the contract price owed to NSI.  NSI shall have, in addition to all rights granted to it under this contract, all rights of a secured party under the Uniform Commercial Code.

13.        Remedies.  If Customer fails to pay when due any amount owed to NSI, or breaches any other term hereof, and such default continues for a period of five (5) days thereafter, NSI shall be entitled to stop work until full payment is made or at NSI’s option upon three (3) days written notice, NSI may, in addition to all other rights and remedies available to it, terminate the contract and seek monetary damages.

14         Injunctive Relief, Legal Proceedings, Fees and Costs.  The parties acknowledge and agree that a breach of clauses 5 and 6 of this Agreement will cause irreparable injury to NSI or Customer, as the case may be, which injury cannot be adequately compensated by monetary damages and that, therefore, in the event of any such breach, the party seeking to enforce its rights under clauses 5 or 6 may obtain without the posting of bond from a court of competent jurisdiction immediate equitable and injunctive relief, including without limitation restraining orders, preliminary or permanent injunctions, or other such orders, to enforce clauses 5 and 6 of this Agreement.  Customer irrevocably agrees that any state or federal court situated in King County, Washington has both personal and subject matter jurisdiction, and that venue in any such court is proper venue for enforcement of this Agreement.  This provision is not intended to limit any other rights or remedies available to any party hereto, whether in law or equity, including exercise of non-judicial remedies under the Uniform Commercial Code.  The prevailing party in any legal action relating to this Agreement shall be entitled to recover all of its reasonable costs, including without limitation attorney’s fees and costs.

 

15.        Taxes.  All prices quoted are exclusive of taxes.   Customer shall be responsible for sales or use tax and any other applicable transfer tax.

16.      General. The terms and conditions set forth herein constitute the entire contract between NSI and Customer relating to the Services.  Acceptance is limited to the terms of the Work Order and these Terms and Conditions and no additional or different terms proposed by Customer shall become part of the contract between NSI and Customer unless NSI expressly agrees in writing.  This contract prevails over any and all inconsistent terms proposed by Customer in any purchase order or similar document issued by Customer.  Acceptance of Customer’s order by NSI is expressly made conditional on Customer’s assent to these terms and conditions of sale, evidenced either by Customer’s written acknowledgment or by conduct that recognizes the existence of a contract with respect to the Services.

 

  1. Default; Remedies.  The occurrence of any one or more of the following events, shall be a “Default”:  (a) Customer’s insolvency or inability to meet its obligations as they become due; (b) filing of a voluntary or involuntary petition of bankruptcy by or against Customer; (c) appointment of a receiver for Customer or any portion of its assets; (d) Customer’s failure to perform or comply with any material term or condition in this contract or any order, including Customer’s failure to pay any sum owing to NSI when due.  Upon a Default, NSI shall have the right, at NSI’s option, with respect to the Work Order, to (i) cancel and terminate any contract for the sale of Services without cost or liability to Seller, (ii) declare immediately due and payable all sums owing to NSI whereupon such sums shall become immediately due and payable and NSI may exercise all rights and remedies of a secured party under the Uniform Commercial Code, and/or (iii) exercise all other rights and remedies available to NSI under the Uniform Commercial Code. The rights and remedies provided herein are cumulative and not exclusive of any other rights and remedies provided by law or in equity.

 

 

Agreed to this ___________ day of ______, 2005

 

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