QR Codes

The attached proposal submitted by Industrial Panel Solutions, Inc. (“IPS”), a Nebraska corporation, to the Client named on the preceding page (“Client”) is subject to the following terms and conditions, which shall supersede any conflicting terms in any other contract documents. By accepting any of the scope of Services offered in this proposal Agreement (“Agreement”), the Client agrees to be bound by the following terms and conditions, including any supplements that may be agreed to, with respect to all work performed by IPS or its subconsultants:

Terms and Conditions of Payment: For Services performed, the Client shall pay IPS according to the written payment terms in the proposal.
Additional Services: If requested by Client, or if required because of changes in the Project, including an unexpected and/or material change in Project conditions from the date of the Agreement, IPS shall furnish services in addition to those set forth in Agreement (“Additional Services”). To the extent possible and prior to commencement of Additional Services, IPS and Client shall agree upon, in writing, whether fees for Additional Services will be Lump Sum or Time and Materials. For Time and Materials arrangement, Client shall pay IPS for such Additional Services of IPS’s employees engaged directly on the Project an amount equal to the cumulative hours charged to the Project by each class of IPS’s employees times the current standard hourly categorized rates for each applicable billing class; plus reimbursable expenses and subconsultants’ charges, if any. 
Standard of Care and Warranty: IPS will perform the Services in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions in the same locale.  EXCEPT FOR THE STANDARD OF CARE PREVIOUSLY STATED OR ANY OTHER WARRANTY EXPRESSLY STATED IN THIS AGREEMENT, THE CLIENT UNDERSTANDS AND AGREES THAT IPS HAS NOT MADE AND IS NOT MAKING ANY PROMISE, WARRANTY OR REPRESENTATION, AND IPS EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTIES IMPOSED OR IMPLIED BY LAW.

Cost Estimates and/or Opinions:  IPS cannot and does not guarantee that the proposals, bids or actual costs will not vary significantly from opinions of probable cost prepared by it. If at any time Client wishes greater assurances as to the amount of any cost, Client shall separately employ an independent cost estimator to make such determination. Client agrees that any opinion of cost in an estimate by IPS is not intended for use to develop a firm budget, a financial model or to make investment decisions.
Client’s Obligations and IPS’s Right to Rely:

1. Client shall be responsible for all requirements and instructions that it furnishes to IPS, and for the accuracy and completeness of all programs, reports, data, and other information furnished by Client to IPS, pursuant to this Agreement. IPS may use and rely upon such requirements, programs, instructions, reports, data, and information in performing or furnishing Services under this Agreement, subject to any express limitations or reservations applicable to the furnished items.

      2.  Client shall provide prompt written notice to IPS if Client becomes aware of any fault, defect or delay in IPS’s Services or the work of any subconsultant of               IPS, including any error, omission or inconsistency in such Services or any alleged breach of contract by IPS.

Limitation of Liability: In recognition of the relative risks, rewards, and benefits to both the Client and IPS, the risks have been allocated such that the Client agrees to the fullest extent permitted by law, and notwithstanding any other provision of this Agreement, the total liability, in the aggregate, of IPS and IPS’s officers, directors, members, partners, agents, employees, to Client and anyone claiming by, through, or under Client for any and all injuries, claims, losses, expenses, costs, or damages whatsoever arising out of, resulting from, or in any way related to the Project, IPS’s Services, or this Agreement, from any cause or causes whatsoever, including but not limited to the negligence, professional errors or omissions, strict liability, breach of contract, indemnity obligations, or warranty express or implied, of IPS or IPS’s officers, directors, members, partners, agents, employees, shall not exceed the total amount of $50,000.00 or the total compensation received by IPS under this Agreement, whichever is greater. Higher limits are available for an additional fee.  This limitation of liability shall not apply to claims based on willful misconduct or gross negligence.
Mutual Waiver of Consequential Damages: To the fullest extent permitted by law, Client and IPS waive against each other, and the other’s employees, officers, directors, agents, insurers, and subconsultants, any and all claims for or entitlement to special, incidental, indirect, or consequential damages, including but not limited to loss of profits or revenue, loss of use or opportunity, loss of good will, cost of substitute facilities, goods, or services, or cost of capital, arising out of, resulting from, or in any way related to the Project.
Right of Entry and Permits: Client warrants that it possesses the authority to provide right of entry permission for the performance of IPS’s Services. Client hereby grants IPS and IPS’s subconsultants, the right to enter from time to time onto the property owned by Client or other(s) in order for IPS to perform the Services. Except where IPS’s Services explicitly includes obtaining permits, licenses, and/or utility clearances for the performance of IPS’s Services, Client warrants that it possesses all necessary permits, licenses and/or utility clearances for the Services to be provided by IPS.
Hazardous Environmental Conditions on Site: It is acknowledged by both parties that IPS’s scope of Services does not include any services related to Hazardous Environmental Conditions (i.e., the presence of asbestos, PCBs, petroleum, hazardous substances or waste, and radioactive materials) at the Project site.  If IPS or any other party encounters, uncovers, or reveals a Hazardous Environmental Condition, then Client shall promptly determine whether to retain a qualified expert to evaluate such condition or take any necessary corrective action.  If Client determines that other action is necessary to address the Hazardous Environmental Condition, IPS may, at its option and without liability for consequential or any other damages, suspend performance of Services on the portion of the Project affected thereby until such portion of the Project is no longer affected.
Safety: Unless expressly agreed in the scope of Services, IPS shall not be responsible for site safety, or means and methods, and shall have no obligation to direct or stop the work of Client’s contractors, agents, or employees.
Instruments of Service:  All design documents (drawings, specifications, reports, programs, security and hardware configurations, and other documents, including those in electronic form) prepared by IPS and IPS’s subconsultants are Instruments of Service for use solely with respect to this Project. IPS and

IPS’s subconsultants shall be deemed the authors and owners of their respective Instruments of Service and shall retain all common

law, statutory and other reserved rights, including copyrights and the right of reuse, unless agreed upon otherwise, whether or not the Project is completed. IPS retains all intellectual property rights to designs and concepts developed by IPS during the course of the Project.  Notwithstanding the forgoing, Client may make and retain copies of Instruments of Service for information and reference in connection with the use of the Instruments of Service on the Project.  IPS grants Client a limited license to use the Instruments of Service on the Project, extensions of the Project, and for related uses of the Client, subject to receipt by IPS of full payment due and owing for all Services relating to preparation of the Instruments of Service, and subject to the following limitations:

1. Client acknowledges that such Instruments of Service are not intended or represented to be suitable for use on the Project unless completed by IPS, or for use or reuse by Client or others on extensions of the Project, on any other project, or for any other use or purpose, without written verification or adaptation by IPS;
2. Any such use or reuse, or any modification of the Instruments of Service, without written verification, completion, or adaptation by IPS, as appropriate for the specific purpose intended, will be at Client’s sole risk and without liability or legal exposure to IPS or to its officers, directors, agents, employees, and subconsultants;
3. Client shall indemnify and hold harmless IPS and its officers, directors, agents, employees, and subconsultants from all claims, damages, losses, and expenses, including attorneys’ fees, arising out of or resulting from any use, reuse, or modification of the Instruments of Service without written verification, completion, or adaptation by IPS; and
4. Such limited license to Client shall not create any rights in third parties.

Insurance:  Upon request, IPS shall provide Client written certification of the insurance listed below. If the Client requires increased insurance coverage, IPS will, if specifically directed by the Client, take out additional insurance, if obtainable, at the Client’s expense. Client and IPS shall waive subrogation against the other party on general liability.  Client is an additional insured with respect to general and auto liability.  IPS shall maintain during the performance hereof:

1. Workers’ compensation in compliance with all applicable laws or statutes, whether federal or state, in which IPS operates, including employer’s liability insurance with a minimum of $1,000,000 for injury or death of each event, of each employee and policy limit.
2. Comprehensive general liability including coverage for contractual liability of not less than $1,000,000 ($2,000,000 aggregate) combined single limit for bodily injury, personal injury and property damage as the result of any one occurrence.
3. Comprehensive automobile liability, including coverage for owned, hired and non-owned automobiles, of not less than $1,000,000 combined single limit for bodily injury, personal injury and property damage as the result of any one occurrence.
4. Professional liability, including coverage for contractual liability, of not less than $2,000,000 ($2,000,000 aggregate) combined single limit for errors and omissions.
5. Excess umbrella for general liability insurance with a minimum of $4,000,000 per occurrence/aggregate.

Indemnification: IPS shall, to the fullest extent permitted by law, indemnify and hold harmless Client from any damage, liability or cost, including but not limited to reasonable attorneys’ fees and costs of defense, to the extent caused by IPS’s negligent acts, errors or omissions in the performance of professional Services under this Agreement and those of its employees, officers, directors, agents, and subconsultants. Client shall, to the fullest extent permitted by law, indemnify and hold harmless IPS from any damage, liability or cost, including but not limited to reasonable attorneys’ fees and costs of defense, to the extent caused by Client’s negligent acts, errors or omissions that arise out of or are related to any breach or failure on Client’s part that results in property damage or personal injury including death of third parties.

Termination:  Either party may terminate this Agreement without cause upon seven (7) calendar days advance written notice. If Client terminates without cause or if IPS terminates for cause, Client will pay IPS reimbursable expenses incurred, non-cancelable commitments, and fees earned to the date of termination and through demobilization, including any cancellation charges for vendors and subconsultants, and all reasonable demobilization costs. If IPS terminates without cause, IPS will be promptly paid for all services performed and reimbursable expenses incurred prior to the date of termination.
Delays and Force Majeure: Neither Client nor IPS shall hold the other responsible for damages or delay in performance caused by acts of God, strikes, lockouts, accidents, or other events beyond the control of the other or the other’s employees and agents. In the event of such a delay that impacts the time for performance of IPS’s Services, the completion date for IPS’s Services shall be extended for a period equal to the length of the delay, plus any time needed to reallocate necessary personnel.  The affected party shall notify the other party in writing as soon as reasonably practicable after the occurrence of any event that it believes will result in such a delay.
Dispute Resolution: Client and IPS agree that all disputes between them arising out of or relating to this Agreement or Project shall be submitted to mediation unless parties mutually agree otherwise. Any Agreement reached in mediation shall be enforceable as a settlement agreement. In the event the parties to the Agreement are unable to reach a settlement of any dispute through mediation, then such disputes shall be resolved by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association.  Client agrees that any arbitration hearings shall take place in Omaha, Nebraska.  Client consents to the jurisdiction of any arbitration panel in Douglas County, Nebraska, and waives any claim or assertion of improper venue or forum non conveniens with regard to any arbitration proceedings in Douglas County, Nebraska.  The prevailing party in any arbitration relating to any dispute shall be entitled to recover from the other party those reasonable attorney fees, costs and expenses incurred by the prevailing party in connection with the dispute.
No Third-Party Beneficiaries: This Agreement is solely for the benefit of the parties hereto and nothing herein, express or implied, is intended to confer any right or remedy on any person other than Client and IPS.
Controlling Law: This Agreement shall be construed and enforced in accordance with the laws of the State of Nebraska, excluding only its conflict of laws principles.
Severability: If any of the provisions contained in this Agreement are held illegal, invalid or unenforceable, the enforceability of the remaining provisions shall not be impaired thereby.
Assignment: This Agreement is to be binding upon the heirs, successors, and assigns of the parties hereto and is not to be assigned by either party without first obtaining the written consent of the other. No assignment of this Agreement shall be effective until the assignee assumes in writing the obligations of the assigning party and delivers such written assumption to the other original party to this Agreement.  Use of subconsultants by IPS or subsidiary or affiliate firms of IPS for technical or professional services shall not be considered an assignment of a portion of this Agreement, and IPS shall remain fully responsible for the work performed, whether such performance is by IPS or subconsultants.
Survival: All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating responsibility or liability between the Client and IPS shall survive the completion of the services and the termination of this Agreement.

Entire Agreement:  These terms and conditions and the Agreement to which they are attached represent the entire understanding of Client and IPS as to those matters contained herein.  No prior oral or written understanding shall be of any force or effect with respect to those matters covered herein.  The Agreement may not be modified or altered except in writing.