SECTION 1 – GENERAL

1.1.     These Assessment Terms & Conditions (“Agreement”) are entered into by and between haushepherd, Inc. (“haushepherd”, “we”, “us”, “our”) and the client that signs an ordering document that incorporates this Agreement by reference or otherwise agrees to be bound by this Agreement (“Client”). The Assessment (the “Assessment,” “Inspection,” or “Project”) of the property referenced in the applicable ordering document (“Property”) is subject to the limitations and conditions set out in this Agreement. Because evaluation of the existing structure requires certain assumptions be made regarding existing conditions, and because some of these assumptions cannot be verified without expending additional sums of money or destroying otherwise adequate or serviceable portions of the building, the Client, to the fullest extent permitted by law, agrees to indemnify and hold harmless haushepherd against all damages, liabilities or costs, including reasonable attorneys’ fees and defense costs, arising out of or in any way connected with this Project.

 

1.2.     The Assessment is based on a visual examination of the readily accessible features of the Property. The Assessment does not include identifying defects that are hidden behind walls, floors, or ceilings. This includes wiring, heating, cooling, structure, plumbing and insulation that are hidden or inaccessible. Some intermittent problems may not be obvious on an inspection because they only happen under certain circumstances. As an example, we may not discover leaks that occur only during certain weather conditions or when a specific tap or appliance is being used in everyday life. We will not find conditions that may only be visible when storage or furniture is moved, and we do not remove wall coverings (including wallpaper) or lift flooring (including carpet) or move storage to look underneath or behind.

 

1.3.     We will have no liability for any claim or complaint if conditions have been disturbed, altered, repaired, replaced, or otherwise changed before we have had a reasonable period of time to investigate.

 

1.4.     We hereby grant the Client a perpetual license to use the written assessment report (“Assessment Report”) that we prepare in connection with the Assessment and to reproduce it solely for the Client’s internal assessment purposes. The Client agrees that no use of the Assessment Report by any other party is permitted. The Client further acknowledges and agrees that we will retain ownership of any and all information, data and materials generated in connection with the Assessment (the “Assessment Materials”), including without limitation the Assessment Report and any field notes, progress drawings, models, and other proprietary parts of the process used to generate the final Assessment Report. We reserve the right to use the Assessment Materials for our own business purposes as determined by us on our sole discretion. Those business purposes may include, but are not limited to: (a) compiling statistical and performance information related to the provision and operation of our services; (b) supporting benchmarking or similar features of our services; (c) analyzing, improving, marketing and developing our existing products and services or new products and services; (e) conducting research; and (f) informing our marketing and advertising campaigns.

 

1.5.     This Assessment should not be considered a warranty or guarantee, implied or expressed, of the structure in general, including but not limited to the building superstructure, slabs, foundations, repairs recommended, or repairs performed. Structures including but not limited to their foundations and slabs may be affected severely by changes in climate, land use, drainage, soil moisture conditions, soil characteristics, and other factors too numerous to list. The conclusions presented in the Assessment Report are based on the conditions observed during our visit. Our opinions and recommendations are subject to change based on new information as it becomes available to us.

 

1.6.     haushepherd shall perform those professional services as specified in the applicable ordering document and detailed herein. In rendering these services, haushepherd shall apply the skill and care ordinarily exercised by professionals of the same discipline currently practicing under similar circumstances at the same time and in the same or similar locality. Upon notice to haushepherd and by mutual agreement between the parties, haushepherd will, without additional compensation, correct those services not meeting such a standard.

 

1.7.     haushepherd shall put forth reasonable professional efforts to comply with the applicable laws, codes and regulations in effect as of the date of the execution of this agreement. Changes made necessary by newly enacted laws, codes and regulations after this date shall entitle haushepherd to a reasonable adjustment in the schedule and additional compensation in accordance with the additional services provisions of this Agreement. haushepherd makes no warranties except for those provided in these sections 1.6 and 1.7. all other warranties, express and implied, are expressly disclaimed, including without limitation any implied warranties of merchantability, fitness for a particular purpose or non-infringement.

 

1.8.     The Client shall cooperate with haushepherd in its performance of the services and provide access to the Client’s premises, employees, contractors, equipment, and information as required to enable haushepherd to provide the services without delays.

 

SECTION 2 - FEES AND OTHER COMPENSATION

2.1.     Fees for basic services, additional services, and compensation for reimbursable expenses are set forth in the applicable ordering document.

 

2.2.     If haushepherd’s services covered by this agreement have not been completed within 12 months of the date hereof, through no fault of haushepherd, the remaining fees shall be escalated at the rate of 5% per year.

 

2.3.     ADDITIONAL SERVICES: Services beyond the scope of work indicated in the applicable ordering document shall be on a cost-plus basis using billing rates in effect at the time these services are performed, however, before any additional services are provided, haushepherd must receive the Client’s consent to these services.

 

2.4.     PAYMENTS ON ACCOUNT: Invoices for haushepherd’s services shall be submitted, at haushepherd’s option, either on a monthly basis or upon completion of any phase of the Service. Invoices shall be payable when rendered and shall be considered past due if not paid within 15 days after the invoice date. Any Project with payment past due, haushepherd retains the right to suspend any services until the past due payment is received and the Client’s account is in good standing.

 

2.5.     Retainers, if applicable to this Project, shall be credited to the final invoice(s).

 

2.6.     Any inquiry or questions concerning the substance or content of an invoice shall be made to haushepherd in writing within 15 days of receipt of the invoice. A failure to notify haushepherd within this period shall constitute an acknowledgement that the Service has been provided.

 

2.7.     LATE PAYMENTS: A service fee of 1.5% (18% annual rate) per month or the maximum allowable by law will be charged on the outstanding balance of “past due” accounts.

 

2.8.     If any portion of an account remains unpaid 90 days after billing, haushepherd may, without waiving any claim or right against the Client, and without liability whatsoever to the Client, suspend the performance of the services. Notwithstanding anything to the contrary in this Agreement, haushepherd shall not be in material breach of this Agreement for failure to carry out the services to the extent haushepherd is prevented from doing so by the Client’s failure to discharge its obligations under Section 1.8.

 

SECTION 3 - INSURANCE, INDEMNIFICATION AND LIMITATION OF LIABILITY

3.1.     INSURANCE: haushepherd shall secure and maintain professional liability insurance and general liability insurance to protect haushepherd from claims which may arise out of the performance of haushepherd’s services under this Agreement, and from claims under applicable workers’ compensation laws. haushepherd shall, if requested in writing, issue certificates confirming such insurance to the Client.

 

3.2.     LIMITATION OF LIABILITY: In no event shall haushepherd be liable to the client or to any third party for any loss of use, revenue, or profit or loss of data or diminution in value, or for any consequential, incidental, indirect, exemplary, special, or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damage was foreseeable and whether or not haushepherd has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.

 

3.3.     In recognition of the relative risks and benefits of the project to both the client and haushepherd, the risks have been allocated such that the client agrees, to the fullest extent permitted by law, to limit the liability of haushepherd, its officers, employees, and sub-consultants on this project for any and all negligent acts, injuries, claims, losses, expenses, damages of any nature whatsoever or claims expenses from any cause or causes, including attorneys’ fees and costs and expert witness fees and costs, so that the total aggregate liability of haushepherd shall not exceed the amount of fees paid to haushepherd under this agreement. It is intended that this limitation apply to all liability or cause of action however alleged or arising, unless otherwise prohibited by law.

 

3.4.     TIME BAR TO LEGAL ACTION: All legal actions by either party against the other arising out of or in any way connected with this Agreement or the services to be performed hereunder shall be barred and under no circumstances shall any such legal action be initiated by either party after five (5) years from the date of substantial completion, unless this Agreement shall be terminated earlier, in which case the date of termination of this Agreement shall be the date on which such period shall commence.

 

3.5.     INDEMNIFICATION: The Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless haushepherd, its officers, directors, employees and sub-consultants (collectively, the “Indemnitees”) against all damages, liabilities or costs, including reasonable attorneys’ fees and defense costs, to the extent caused by the Client’s material breach of this Agreement or the Client’s negligent acts in connection with the Project and the acts of its contractors, subcontractors or consultants or anyone for whom the Client is legally liable. The Client agrees that any and all limitations of the Indemnitees’ liability, waivers of damages by the Client to the Indemnitees and indemnifications by the Client to the Indemnitees shall include and extend to those individuals and entities the Indemnitees retain for performance of the services under this Agreement, including but not limited to haushepherd’s officers, partners and employees and their heirs and assigns, as well as haushepherd’s sub consultants and their officers, employees, heirs, and assigns. Neither the Client nor the Indemnitees shall be obligated to indemnify the other party in any manner whatsoever for the other party’s own negligence or for the negligence of others.

 

3.6.     THIRD-PARTY BENEFICIARIES: Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Client or haushepherd. haushepherd’s services under this Agreement are being performed solely for the Client’s benefit, and no other party or entity shall have any claim against haushepherd because of this agreement or the performance or nonperformance of services hereunder. The client and haushepherd agree to require a similar provision in all contracts with contractors, subcontractors, sub consultants, vendors and other entities involved in this Project to carry out the intent of this provision.

 

SECTION 4 - MISCELLANEOUS PROVISIONS

4.1.     OPINIONS OF PROBABLE CONSTRUCTION COST: In providing opinions of probable construction cost, the Client understands that haushepherd has no control over costs or the price of labor, materials, or equipment, or over the applicable contractor’s method of pricing, and that the opinions of probable construction costs provided herein are to be made on the basis of haushepherd’s qualifications and experience. haushepherd makes no warranty, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. If the Client wishes greater assurance as to project or construction costs, the Client shall employ an independent cost estimator. Services to modify the contract documents to bring the construction cost within any limitation established by the Client shall be considered additional services and paid for as such by the Client.

 

4.2.     ENTIRE AGREEMENT: This Agreement, including and together with any related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.

 

4.3.     NOTICES: Each party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested and postage prepaid, or by email (with confirmation of transmission).

 

4.4.     SEVERABILITY: If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction; provided, however, that if any fundamental term or provision of this Agreement is invalid, illegal or unenforceable, the remainder of this Agreement shall be unenforceable. Upon a determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to/the court may modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

 

4.5.     AMENDMENTS: No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by each party.

 

4.6.     WAIVER: No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

4.7.     ASSIGNMENT: The Client shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of haushepherd. Any purported assignment or delegation in violation of this Section 4.7 shall be null and void. No assignment or delegation shall relieve the Client of any of its obligations under this Agreement.

 

4.8.     SUCCESSORS AND ASSIGNS: This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.

 

4.9.     RELATIONSHIP OF THE PARTIES: The relationship between the parties is that of independent contractors. The details of the method and manner for performance of the services by haushepherd shall be under its own control, the Client being interested only in the results thereof. haushepherd shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the services. Nothing in this Agreement shall give the Client the right to instruct, supervise, control, or direct the details and manner of the completion of the services. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

 

4.10.     DISPUTES RESOLUTION: All claims, counterclaims, disputes, and other matters in question between the parties hereto arising out of or relating to this Agreement or breach thereof will be presented to non-binding mediation, subject to the parties agreeing to a mediator(s).

 

4.11.     GOVERNING LAWS: Unless otherwise specified, this Agreement shall be governed by the laws of the state of California without reference to any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties. The parties consent to the personal and exclusive jurisdiction of state and federal courts located in San Francisco, California for all cases and controversies arising out of or related to this Agreement, including without limitation tort cases.

 

4.12.     FORCE MAJEURE: haushepherd shall not be liable or responsible to the Client, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond haushepherd’s reasonable control, including, without limitation, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of haushepherd.