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PROFESSIONAL SERVICES AGREEMENT IBHS FORTIFIED EVALUATION SERVICES
For good and adequate consideration, Client engages Bethel Engineering, Inc., an Alabama corporation (“Bethel”), to perform FORTIFIED Evaluation Services on behalf of Client in connection with the Structure described hereinbelow.
1. DEFINITIONS: The following terms used in this Agreement have these meanings:
a. Applicable Laws. The state, county and local building codes and ordinances that apply to, impact, or regulate the Property, Structure(s), Structural Components, or Services.
b. Intellectual Property. All patents, copyrights, licenses held or granted, or rights to use any plans, processes, systems, procedures or methods Bethel uses to provide Services
c. IBHS means the Insurance Institute for Business and Home Safety, an independent, nonprofit, scientific research and communications organization supported by property insurers and reinsurers.
d. IBHS FORTIFIED HomeTM or FORTIFIED CommercialTM means IBHS’s voluntary construction and materiel quality program designation, which indicates construction and roofing design to strengthen Structures against specific types of severe weather such as high winds, hail, hurricanes and tornadoes.
e. FORTIFIED means IBHS’s trademarked program designation for residential dwellings and Commercial Structures, indicating that areas of the Structure are reinforced beyond conventional, code-compliant construction standards, rendering them less vulnerable to high winds, wind-driven rain, and hail.
f. FORTIFIED Evaluation Services means Bethel’s evaluation process designed to provide relevant documentation necessary to allow IBHS to evaluate whether the Structure(s) meet the technical requirements.
g. Services or “services” means the FORTIFIED Evaluation Services described in Section 3 of this Agreement.
h. Structure. Improvements (whether one structure or more than one structure eligible for FORTIFIED Evaluation Services) that Client intends to construct or has commenced building on the Property for use as a residential dwelling or a Commercial Structure as shown on the Cover Sheet.
2. ENGAGEMENT. The Client engages Bethel to perform the Services defined in this Agreement in connection with the Structure on the terms contained in this Agreement. Bethel accepts the engagement.
3. SCOPE OF SERVICES.
a. Subject to the terms and conditions stated in this Agreement, Bethel will perform physical evaluations of the Structure located on the Property. The results of the evaluation, which will be performed in accordance with IBHS specification, will be utilized by IBHS to determine eligibility for its FORTIFIED program.
b. The Services rendered under this Agreement are limited to FORTIFIED Evaluation Services. Bethel will complete the FORTIFIED Home Documentation Requirements published from time to time by the IBHS, including adequate on-site evaluation to complete the FORTIFIED Evaluation Services. Bethel does not guarantee, represent or warranty that IBHS will, upon receipt and review of Bethel’s evaluation of the Structure, certify that the Structure satisfies the requirements and specifications for the applicable FORTIFIED program. IBHS is solely responsible for reviewing the evaluation and determining whether the Structure meets applicable FORTIFIED program requirements.
c. Exclusions from Scope of Services. The Client acknowledges that Bethel may not have prepared the Provided Plans. Bethel makes no representations or warranties and issues no certifications or assurances about the quality of any Provided Plans not prepared by Bethel. Other than per Section 2.a, Bethel does not determine the quality of the Structure, including but not limited to the habitability of the Structure or the suitability of the Structure for its intended use. Further, Bethel may not evaluate a particular structural component or construction throughout the Structure, but rather may select a sample or representative section of the Structure to evaluate for compliance with the FORTIFIED standards for that particular component.
d. Without limiting the generality of the foregoing, Client acknowledges that Bethel did not perform and is not responsible for any of the following services in connection with the FORTIFIED Evaluation Services and that Bethel expressly disclaims any certifications, warranties or assurances related to the following, unless said services are the subject of a separate Professional Services Agreement between Bethel and Client: (1) the design of architectural, mechanical, plumbing, or electrical plans pertaining to the Structure, or plans for or construction of light-weight components of the Structure such as stairs, railings, guardrails, ornamental claddings, or stair clearance checks; (2) bidding or construction services, (3) geotechnical or subsurface investigation of the Property; (4) structural services; or (5) other professional engineering services. Bethel is not responsible for the Client’s work and services or any other person preparing Plans or providing construction materials or services related to the Structure. The Client is responsible for constructing the Structure per Applicable Laws, the Plans, and the technical requirements of the applicable FORTIFIED program indicated on the Cover Sheet. The Client will provide any party purchasing the Property or Structure from Client during the period in which the FORTIFIED program certification applies with materials describing the FORTIFIED program, its purpose, its limitations and exclusions.
4. CLIENT RESPONSIBILITIES: In addition to Client responsibilities listed elsewhere in this Agreement:
a. the Client is responsible for a familiarity with the IBHS FORTIFIED program generally. Information regarding the IBHS FORTIFIED program is available at ibhs.org; and
b. the Client is responsible for notifying Bethel when the Structure is ready for evaluation. Client acknowledges that if the Structure is completed to an extent that components of the FORTIFIED program are not visible or accessible by Bethel personnel at the time of the evaluation, this can adversely affect the Structure’s eligibility for certification.
5. TERM OF AGREEMENT. The term of this Agreement begins on the Effective Date. The Agreement terminates on the date that Bethel completes the FORTIFIED Evaluation Services and delivers to IBHS the materials necessary for IBHS to determine whether the Structure meets the requirements for the FORTIFIED designation indicated on the Cover Sheet.
6. INDEMNIFICATION AND HOLD HARMLESS.
a. Client shall indemnify, defend and hold harmless Bethel, and Bethel’s owners, employees, contractors, affiliates, and entities under common control, from and against any claims, lawsuits, arbitrations or proceedings of any kind (individually a “Claim” and collectively, “Claims”) related to the Plans or the construction of the Structures (including, without limitation, Claims that Bethel failed to detect the failure of the Client, or Client’s employees, contractors, sub-contractors, vendors or material suppliers to construct or to provide materials and services in connection with the Structure that do not comply with the Plans or with IBHS standards for applicable FORTIFIED designation), other than a Claim alleging that Bethel failed to perform the FORTIFIED Evaluation Services per IBHS requirements.
b. Client’s obligations under this Section 6 will survive the termination or expiration of this Agreement.
7. COMPENSATION. Bethel’s fee the Services is specified on the Cover Sheet. All invoices are payable upon receipt. Any invoice remaining unpaid more than thirty (30) days after the date of Bethel’s invoice shall incur a late fee of 10.00% per month on the amount still owing. The Client may have entered into contractual relationships with builders, owners, or others in which a third-party is responsible for paying Bethel’s fee. While Bethel is an intended third-party beneficiary of the contract, Bethel nevertheless may look to the Client or any third-party payor for payment of its fee. Bethel’s fee is earned upon the completion of the Services, and is due regardless of whether IBHS issues its FORTIFIED certification of the Structure.
8. TERMINATION. If Bethel or the Client terminates this Agreement before completion of the FORTIFIED Evaluation Services, the Client will pay Bethel prorata Compensation to the date of termination provided that Bethel has not breached the terms of this Agreement.
9. TRADE SECRETS.
a. Bethel’s Trade Secrets are unique and proprietary to the company, and the release or disclosure of Bethel’s Trade Secrets will cause financial and operational harm to Bethel. The disclosure of Bethel’s trade Secrets would further reduce the Company’s competitive advantage in the performance of services it provides, including but not limited to the FORTIFIED Evaluation Services.
b. If the Client becomes aware of any of Bethel’s Trade Secrets in connection with this Agreement or otherwise, the Client will not disclose, divulge, reveal, report or use Bethel’s Trade Secrets, except as authorized by Bethel or as required by law. The obligations to maintain the confidentiality of Bethel’s Trade Secrets will apply during the Term and will survive indefinitely upon termination of this Agreement.
10.OWNERSHIP OF INTELLECTUAL PROPERTY. All rights to Intellectual Property are and shall remain exclusively owned by Bethel. To the extent Intellectual Property is incorporated into or reflected in the FORTIFIED Evaluation Services, the Client is granted a non-exclusive, limited-use license of this Intellectual Property for the sole purpose of the construction of the Structure per the Plans.
11.INDEPENDENT CONTRACTOR. The parties agree that the relationship between Bethel and the Client is one of an independent contractor to a client. This Agreement does not create a partnership or joint venture between them and is exclusively a service contract. Bethel has complete control over working time, methods, and decision making concerning the provision of the Services per the Agreement. Bethel will work autonomously and not in the direction of the Client. However, Bethel will be responsive to the reasonable needs and concerns of the Client.
12.BETHEL PERSONNEL. Bethel may assign or delegate all or any portion of the preparation of the FORTIFIED Evaluation Services to any employee or independent contractor retained by Bethel, who Bethel’s management has reasonably determined has requisite skills and training to perform the Professional Engineering Services. Bethel shall be responsible for the Company’s work product, regardless of whether Bethel’s employees or independent contractors perform the Professional Engineering Services
13.NOTICES: Any notice or communication in the nature of a notice of the breach of the terms of this Agreement, or a demand for action related to this Agreement or its terms will be given in writing and delivered to the Parties at the addresses (including Email Addresses) set forth below, or to such other address as either Party may from time to time notify the other, and will be considered properly delivered (a) immediately upon being served personally, (b) three (3) days after being deposited with the postal service if served by registered mail, (c) the following day after being deposited with an overnight courier, or (4) upon receipt by the sender of an email return receipt notice if the notice or demand was delivered via email.
If to Bethel:
Bethel Engineering, Inc.
ATTN: Fortified Department
3233 Executive Park Drive
Mobile, AL 36606
Email: fortified@bethel-eng.com
If to Client:
To the Address and email Address shown on the Cover Sheet
Routine communications regarding the Services performed under this Agreement or non-mandatory notices and demands may be communicated by email, text, or SMS messages, telephonically, or other messaging application or service. It is the responsibility of the sender to determine that the recipient received the message.
14.MODIFICATION OF AGREEMENT. All amendments to this Agreement must be in writing and writing signed by each Party.
15.ENTIRE AGREEMENT. This Agreement includes no representation, warranty, collateral agreement or condition unless expressly provided in this Agreement.
16.NO THIRD-PARTY BENEFICIARIES. There are no intended or incidental thirdparty beneficiaries of this Agreement. The FORTIFIED Evaluation Services are performed solely for and for the benefit of the Client. Bethel claims status as an intended third-party beneficiary of any contract, agreement or arrangement between Client and any third-party in which the third-party is responsible for the payment of Bethel’s fee for the Services.
17.ARBITRATION. BETHEL AND THE CLIENT AGREE THAT ALL DISPUTES, CLAIMS, AND CONTROVERSIES BETWEEN THEM, WHETHER INDIVIDUAL, JOINT, OR CLASS IN NATURE, ARISING FROM THIS AGREEMENT OR OTHERWISE, INCLUDING WITHOUT LIMITATION CONTRACT AND TORT DISPUTES, SHALL BE ARBITRATED IN MOBILE, ALABAMA, ACCORDING TO THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION UPON REQUEST OF EITHER PARTY. ANY DISPUTE AS TO WHETHER A PARTICULAR DISPUTE OR CLAIM IS SUBJECT TO ARBITRATION UNDER THIS SECTION SHALL BE DECIDED BY ARBITRATION PER THE PROVISIONS OF THIS SECTION. THE PARTIES SHALL ARBITRATE DISPUTES IN CONFIDENCE. THE ARBITRATION WILL BE BINDING AND JUDGMENT UPON ANY AWARD RENDERED BY ANY ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THE WRITTEN AWARD AND ANY FINDINGS OF THE ARBITRATOR MUST BE FILED WITHIN 30 DAYS OF THE FINAL ARBITRATION HEARING. NOTHING IN THIS SECTION SHALL PRECLUDE ANY PARTY FROM SEEKING EQUITABLE RELIEF FROM A COURT OF COMPETENT JURISDICTION OR EXERCISING ANY SELF-HELP REMEDIES AS PROVIDED IN THIS AGREEMENT. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. A PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S OR ENTITY’S CLAIMS, MAY NOT JOIN OTHER PERSONS OR ENTITIES AND MAY NOT PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THE STATUTES OF LIMITATIONS, ESTOPPEL, WAIVER, LACHES, AND SIMILAR DOCTRINES WHICH WOULD OTHERWISE BE APPLICABLE IN ANY ACTION BROUGHT BY A PARTY SHALL BE APPLICABLE IN ANY ARBITRATION PROCEEDING, AND THE COMMENCEMENT OF AN ARBITRATION PROCEEDING SHALL BE DEEMED THE COMMENCEMENT OF AN ACTION FOR THESE PURPOSES. THE FEDERAL ARBITRATION ACT (9 U.S.C. §1 et seq.) SHALL APPLY TO THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT OF THIS ARBITRATION PROVISION. TO THE EXTENT THAT ANY COURT OF COMPETENT JURISDICTION DETERMINES THAT THESE ARBITRATION PROVISIONS ARE INAPPLICABLE OR UNENFORCEABLE CONCERNING ANY CLAIM OR DISPUTE, THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY COURT IN ANY ACTION FOR THE ADJUDICATION OF SUCH CLAIM OR DISPUTE. THE CHOICE OF LAW RULES OF ANY JURISDICTION DO NOT APPLY. IN THE EVENT OF A DISPUTE, THE PREVAILING PARTY IN ANY LITIGATION OR ARBITRATION WILL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ITS REASONABLE ATTORNEY’S FEES AND EXPENSES AND COSTS INCURRED. THIS ARBITRATION AGREEMENT IS INTENDED TO COVER ALL DISPUTES RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO ANY CLAIMS BROUGHT BY OR DISPUTE ASSERTED BY ANY THIRD-PARTY AGAINST BETHEL RELATED TO THE STRUCTURE, THE PROPERTY, THE PLANS, AND ANY SERVICES PROVIDED BY BETHEL RELATED TO THE STRUCTURE, THE PLANS, OR THE PROPERTY WHETHER OR NOT RELATED TO THIS AGREEMENT.
18.GOVERNING LAW; JURY WAIVER; WAIVER OF CLASS REPRESENTATIVE STATUS.
This Agreement will be governed by and construed under the laws of the State of Alabama. If any court of competent jurisdiction rules the mandatory arbitration provisions of Section 17 are unenforceable, the parties agree and waive any objections to the exclusive jurisdiction of and proper venue in the Circuit Court of Mobile County, Alabama or the U.S. District Court for the Southern District of Alabama, sitting in Mobile, Alabama (if the dispute involving a federal question or diversity jurisdiction as defined in the Federal Rules of Civil Procedure) for the resolution of any dispute related to this Agreement. The parties waive the right to a trial by jury under the Constitutions of the United States or the State of Alabama for any matter or dispute tried to the Court per this Agreement. In any case or cause tried to the Court under this provision of this Agreement, the parties agree that a party may bring claims against the other party only in its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. No party shall move or ask the Court to consolidate proceedings of more than one person’s or entity’s claims, join other persons or entities in the matter or cause, or preside over any form of a representative or class proceeding.
19.SEVERABILITY. Should any court or arbitration rule that any portion of this Agreement is invalid or unenforceable in whole or in part, all other provisions will continue to be valid and enforceable. Each party executes this Agreement on and as of the Effective Date stated on the Cover Sheet. The parties may enter into an agreement, either by separate writing, or by course of dealing, whereby the Client provides Bethel only with information sufficient for Bethel to identify and locate the Property for which the Services are to be provided. All Property evaluations performed by Bethel for the Client following the effective date of the Cover Sheet are subject to this Agreement. Bethel may revise, alter or amend this Agreement from time to time. The effective date of the form of Agreement is shown in the footer to this Agreement and any revised or amended agreement is effective on the date published by Bethel.