TERMS AND CONDITIONS
For purposes of performing work under this Proposal, Arch Environmental Group, Inc. has provided “General Terms & Conditions”. Throughout the following “General Terms & Conditions”, Arch Environmental Group, Inc. is herein referred to as “AEG” and the client/customer is herein referred to as “Client”.
Responsibilities of Arch Environmental Group, Inc..
- AEG will provide the professional services described in the written agreement with Client. Written agreements include, but are not limited to, a signed or otherwise exectuted contract, service agreement, formal proposal, or email statement of cost, scope and schedule. AEG will provide Client with written reports containing professional conclusions and recommendations. In performing these services, AEG will complete said services in a manner consistent with industry practice (i.e., commonly used by environmental professionals and hazardous waste transporters practicing) in the State of Michigan.
- AEG will complete all services using appropriate procedures and protocols. If Client directs AEG to deviate from AEG’s standard and recommended procedures, these deviations will be noted in file notes, in the report when professionally prudent, and Client will hold AEG harmless from all claims, damages and expenses arising out of these directions.
- AEG will reference all field observations and sampling activities to available field reference points existing at the project site during the time of the investigation.
- AEG will provide a Health & Safety Program for all employees of AEG. AEG will not be responsible for other contractor, project or site health and/or safety unless those responsibilities are specifically accepted in writing. Any and all health and/or safety requirements implemented or requested by Client following acceptance of this proposal which are over and above those contained in AEG’s Health & Safety Program(s) will be cause for changes to the compensation stipulated in the proposal.
- AEG represents and warrants to Client that AEG is qualified to perform the services described in this proposal and will do so in a safe and workmanlike manner and in compliance with all governmental laws, regulations and orders. AEG makes no expressed or implied warranties of merchantability or warranty of fitness for a particular purpose.
Responsibilities of Client
- Client will arrange and provide all necessary and unencumbered access to the project site and all sampling locations as is necessary for AEG to perform these services. AEG will not be responsible for obtaining access or permission to collect samples off the subject property. AEG will use reasonable care to minimize damage to the project site. In the course of AEG’s activities some site damage is normal even when due care is exercised (such as damages to building materials to collect bulk/material samples). AEG has not included the cost of restoration of normal damage in the proposed project costs and modifications to the site necessary to facilitate sampling shall be at Client’s expense. AEG agrees to be responsible for damage that is caused by the negligence of AEG’s employees/company or hired Subcontractors.
- Client agrees to provide AEG the opportunity to review all information regarding known or anticipated recognized environmental conditions at the project site (such as previous asbestos inspection records, written permit required confined space programs and written safety programs for the project site). Client agrees to hold AEG harmless from all claims, damages, losses and related expenses involving these situations with which Client had knowledge and did not provide to AEG.
- Client will be responsible for the cooperation of your employees and your contractors relating to the completion of all of AEG’s agreed upon tasks, including, but not limited to, access to specific building locations, availability of sampling locations and, when dictated by specific projects, completion of project questionnaires. Delays caused by Client’s employees will be cause for changes to the compensation stipulated in the proposal and additional time required to complete the affected activities will be billed at rates used in preparing the proposal.
- Unless the scope of activity is specified directly in the proposal, neither this agreement nor the providing of services will operate to make AEG an owner, operator, generator, transporter, treater, storer or a disposal facility within the definitions of the Resource Conservation Recovery Act, as amended, or within the definition of any other law governing the handling, treatment, storage or disposal of hazardous materials. Client agrees to hold AEG harmless and indemnify AEG from any such claim or loss.
- Client represents and warrants to AEG that (i) Client will provide a true and accurate description of all known hazardous substances to be handled by AEG and further advise AEG of all known or suspected hazards or risks incidental to the handling, transportation, and disposal of said substances; (ii) Client shall select the disposal or treatment facilities that said hazardous substances are to be taken; and (iii) Client will, if deemed necessary by AEG, assist in securing all necessary approvals, judicial and/or administrative orders necessary to ensure AEG’s legal access to the site to perform the work.
- For projects not involving asbestos inspection related activities – In instances where Client has not completed an asbestos inspection and does not know whether or not specific building materials are asbestos-containing or not, AEG may be required to conduct asbestos sampling at Client’s expense in order to continue portions of the investigation. When these additional activities are required, AEG will complete them with the approval of Client at the same T&M rates used in the proposal.
Site Conditions & Disposal of Generated Wastes
- All field activities will be conducted in a safe and timely manner. All site work will to be performed under OSHA Level D health and safety conditions. If the work is upgraded to OSHA Level C or higher, all pricing will be renegotiated unless higher level of protection is specified in the scope-of-services. Prior to commencement of any activity on the site, Client agrees to inform AEG of hidden site conditions, features and hazards, both surface and underground, that are known to Client and may interfere with the planned activities, may be damaged by the activities, or may represent a health or safety hazard. If the existences of such conditions are unknown, AEG may, in its sole judgment and at Client’s expense, perform or arrange with others for investigations to discover such conditions or hazards and the protection required. Client shall be responsible for the identification of all utilities and subsurface structures within the property lines of the project site, which are not identified by “Miss Dig” or other utility marking service. Client agrees to indemnify and hold AEG harmless from any and all claims, damages, losses, liabilities and expenses, including attorney fees, arising out of or resulting from any damage to utilities or subsurface structures caused by AEG or its subcontractors that were not identified by “Miss Dig”, other utility marking service, Client, or Others.
- Care will be taken to preserve the existing site surfacing materials, including but not limited to; asphalt, concrete, gravel, bare soil, sand, and landscaped grasses during the use of heavy equipment, including but not limited to; AEG service vehicles, tractor/trailer, excavators, loaders, gravel/dump trucks, etc, as applicable. However, due to the weight of the equipment, AEG cannot guarantee that site surfacing materials or other landscaping will not be impacted as a result of performing authorized services within the property lines of the project site. The Client agrees to indemnify and hold AEG harmless from any and all claims, damages, losses, liabilities and expenses, including attorney fees, arising out of or resulting from any damage to site surfacing materials or other landscaping caused by AEG or its subcontractors as a result of performing authorized services.
- It is the responsibility of the waste generator (Generator) to properly package, mark, and label hazardous material or hazardous waste in compliance with Department of Transportation (DOT) requirements. All containers must be suitable for transportation pursuant to the DOT requirements or recovery drums will be provided and utilized by AEG, at a minimum charge of $135.00 per drum. The Client acknowledges that while AEG may identify or provide packaging, marking or labeling materials, it is the sole responsibility of Generator to maintain compliance with DOT regulations.
- The Client acknowledges that AEG has no responsibility for the final selection of a specific treatment technology nor Treatment, Storage, and Disposal Facility (TSDF) for each generated waste stream. The Client further acknowledges that while AEG may identify potential TSDF’s that are capable of managing the generated waste(s), AEG may not and will not select any specific TSDF for any waste stream on behalf of Client or Generator. Title and all other incidents of ownership to the waste material shall pass directly from Client (or Generator) to the TSDF designated by the Generator (or Client on behalf of Generator). Moreover, any testing by AEG and/or transportation of any waste material by AEG shall not relieve Client or Generator of any of its obligations or liabilities under the Comprehensive Environmental Response, Compensation and Liability, 42USC 9601 et seq.; the Resource Conservation and Recovery Act of 1976, 42 USC 9601 et seq.; or the Natural Resources and Environmental Protection Act, MCLA 324.181 et seq., each as may be amended from time to time.
- Materials and/or wastes for which AEG has accepted title may be beneficially recycled through re-use, re-sale, secondary recycled feed stock, smelting, extrusion, and other acceptable methods, at the discretion of AEG. Any and all recycling value is to remain with AEG unless otherwise agreed in the scope-of-services or fee schedule.
Project Reports and Project Records
- AEG will provide one (1) electronic copy of all reports to Client. AEG will retain all project data for a period of seven (7) years (unless a longer duration is mandated by federal or state regulations) and all financial data for three (3) years relating to the services performed under these terms & conditions.
- Conclusions made by AEG are statements of professional opinion based in part on the interpretation of data from discrete samples and reasonable interpolation of conditions between sample points. Data and conclusions are not transferable to third parties, different sites, or different regulatory circumstances.
- AEG reports, notes, calculations and other documents are all a part AEG’s services to Client. AEG reports are for the use of Client only for the purposes disclosed to AEG. Client may not transfer AEG’s reports to others or use them for a purpose for which they were not prepared without our written approval, which will not be unreasonably withheld. At Client’s request, AEG will provide endorsements or letters of reliance for AEG reports, but only if the recipients agree to be bound by the terms of the agreement(s) between AEG and Client and only if AEG is paid the administrative fee stated in the current AEG Schedule of Fees.
- AEG shall have all rights of ownership of data, drawings, maps, project records, work products, reports and/or instruments of service and such materials shall remain in the possession of AEG for seven (7) years (unless a longer duration is mandated by federal or state regulations). As part of the final investigative report, AEG shall provide copies of all documentation used to complete the investigation, including, but not limited to, analytical data reports, chain-of-custody reports, drawings, maps, figures and soil and monitor well logs. Client shall have reasonable access to original such materials during normal business hours at no additional cost to AEG.
- If Client does not pay for all AEG services as agreed upon, AEG may retain all reports and work not yet delivered to Client and all other work in the possession of Client will be returned to AEG Reports and other work may not be used by Client for any purpose whatsoever until they are paid for in full.
- All reports (except for asbestos abatement project reports which need to added to AHERA Management Plans or similarly maintained Asbestos Programs) will be issued electronically unless otherwise specified in this proposal. Expedited delivery of reports and/or distribution of reports via U.S. Postal Service will be invoiced as an itemized expense at the cost incurred by AEG Final reports are not forwarded until final (official) laboratory reports are received from the contracted laboratory.
- AEG agrees to maintain in confidence all information gathered and formulated as part of the authorized services, except where disclosure is mandated by law. AEG further acknowledges that the information presented in proposals and reports is exclusively for the use of Client. AEG will not distribute or publish reports without the consent of Client except as required by law or court order. Client acknowledges that all reports filed with State and/or Federal regulatory agencies on behalf of Client, by authorization to AEG, become public records subject to dissemination through the Freedom of Information Act.
- It is understood and agreed that by accepting this proposal, AEG will provide the scope-of-services outlined/detailed in the proposal to Client at the prices outlined/detailed in the proposal.
- All stated estimated costs are not firm unless stated as such.
- Quotations or estimates of fees will be honored for a period of thirty (30) days unless otherwise stated in the Proposal. Unless expressly stated otherwise, quoted fees constitute an estimate based on AEG’s understanding of the project and are subject to revision as the scope-of-services are redefined. Verbal quotations are not binding until confirmed in writing and signed by Client. Pricing changes must be in writing and signed by AEG and Client to be considered binding.
- It is further understood, that unless otherwise defined, sample quantities (and associated costs) are estimates only. Extra samples may be necessary in order to satisfy regulatory standards or to accurately define a material or contamination. Verbal or written quotes with sample quantities are provided for budget purposes only. AEG will contact Client for verbal approval prior to the analysis of extra samples that will exceed the written or oral sample quantity estimate.
- All travel necessary to perform this project, including all transportation of personnel, equipment and samples, is included in the above outlined price. In the event of termination at the request or direction of Client prior to the completion of the agreed upon services, AEG shall be compensated for services performed up to the date of termination. Compensation shall include labor and expenses for demobilization from field sites and completion of specific analyses and activities underway at the time of notification, as well as all costs, expenses and damages resulting from the termination. In the event of delays, or cancellations requested by Client within three (3) calendar days prior to start of field activities, Client shall be responsible for costs and expenses incurred by AEG in preparing for the performance and damages sustained by AEG. AEG shall not be responsible for delays in performance or cancellation of contracts resulting from causes beyond the control of AEG, labor disputes, and/or acts of third parties.
- Waste loading/transportation delays experienced at Client’s facility or at the Generator-designated TSDF that are beyond the control of AEG will be billed at a minimum rate of $85.00 per hour for each waste transport vehicle; additional AEG personnel affected by said delays, or delays experienced during other types of Client projects that are not the fault of AEG, will be invoiced at the applicable unit hourly rates for that project. Unless otherwise specified herein, price quotations prior to completion of services are estimates only and final invoicing may vary accordingly. Disposal and/or recycling prices may vary without notice to AEG and AEG will keep Client informed of relevant price changes as they occur.
- All reimbursable expenses for this project have been included in the above outlined price unless otherwise itemized in the attached proposal. The cost includes issuing the report electronically. Unless otherwise specified in the proposal, hard copies of the reports will be issued to the Client only upon request and negotiation of a minor cost for printing/binding/production of the reports.
- AEG’s standard payment terms are net thirty (30) days. Unless otherwise stipulated, payment for services related to this project is due within thirty (30) days of project completion. AEG accepts only checks, cash or money orders for final payments. Should Client desire to make payment with a credit card, including, but not limited to, Visa and MasterCard, Client may make payment through the payment portal of our website (“Make Payment”, www.archenvgroup.com). For the protection of Client, AEG will not collect any credit card data/information to process a payment.
- Client will notify AEG of all billing disputes within fifteen (15) days. Client will pay all undisputed portions of the invoice within the stated terms. By accepting this proposal, AEG reserves the right to charge a 12% annual late fee (calculated on monthly basis from the due date) on all past due invoices.
- If Client directs AEG to invoice another party, this will be done, but Client agrees to be responsible for all compensation due AEG unless Client provides AEG with that party’s written acceptance of all terms of this agreement and AEG extends that party the necessary credit.
- AEG reserves the right to collect a deposit of 50% of the proposed project cost for new clients pending acceptance of credit terms. A deposit requirement will be stated in the proposal.
- Once an outstanding invoice has reached thirty (30) days past due, Client will be notified by phone or in writing (formal letter, facsimile or electronic mail) of the outstanding invoice. This contact will be the only follow-up by AEG on an outstanding invoice. Statements will not be sent.
- Once an outstanding invoice has reached sixty (60) days past due, the invoice will be automatically turned over to American Profit Recovery, Farmington Hills, Michigan, for an attempt at collections. American Profit Recovery is a reputable and conscientious collection agency with years of experience in the industry. Although AEG is concerned with payment, the company is equally concerned about retaining Client as a customer. For this reason, AEG has included this notice in advance and included it as part of the terms and conditions. Should the invoice be turned over to American Profit Recovery, a $15.00 service charge will be added to the invoice. American Profit Recovery will only facilitate collections – all payments will be made directly to AEG American Profit Recovery will facilitate collections through a programmed series of written notices until the invoice has been paid, extended payment terms have been negotiated with Client and AEG or the outstanding invoice has reached one hundred fifty (150) days past due. At this point, American Profit Recovery (or AEG’s retained legal counsel) will pursue collections through legal channels.
- AEG reserves the right to sub-contract all laboratory services to a fully accredited and qualified laboratory of AEG’s choosing. Unless otherwise stipulated, costs for laboratory analysis are based on “standard” turn-around-times for each specific test. RUSH analysis will be invoiced at a surcharge specific to the analysis requested – typical laboratory surcharges are 100% of the standard cost.
- Samples from Clients’ site, submitted to AEG by Client or residue thereof after analysis, shall remain the property and responsibility of Client for purposes of special handling, hazardous waste transport and/or disposal. Unless otherwise agreed, sample residuals shall be disposed of or returned to Client upon completion of the analyses at the discretion of AEG. Samples will be analyzed under normal processing time of five (5) – ten (10) working days. All samples will be retained for thirty (30) calendar days from date of collection unless an extension is requested in writing.
- Delays in receipt of laboratory results or official hard copy reports from the laboratory may necessitate extensions in the project by Client. Any delays of this nature will be brought to the attention of Client as soon as possible.
- AEG will schedule this project as soon as feasible considering current consultant schedules and commitments. Unless otherwise stipulated, AEG will conduct this work during normal business hours (Monday – Friday between 8:00 a.m. and 5:00 p.m.). AEG reserves the right to include a premium charge for evening, weekend and emergency work (less than 48 hour notice). Premium work that is necessitated by scheduling requirements outside of those stipulated in this proposal will be billed at an additional $15.00 per hour unless otherwise stipulated in an attached proposal.
Disputes with AEG
- AEG and Client agree to exercise good faith efforts to resolve all disputes through a mutually accepted procedure such as mediation and arbitration. Collections will be submitted as previously described. All disputes will be governed by the law of the state in which the servicing office is located.
- AEG will not be liable for damages unless the suit is commenced within one (1) year of the date of injury or loss or within one (1) year of the date of the completion of the services described in this agreement, whichever is earlier. AEG will not be liable unless Client has notified AEG of the discovery of the claimed breach of contract, negligent act, or omission within thirty (30) days of the date of discovery and unless Client has given AEG an opportunity to investigate and to recommend ways of mitigating damages.
- If Client or a client of Client makes a claim against AEG that is resolved in the favor of AEG, Client will reimburse our costs of defense, including, but not limited to, reasonable attorney fees, expert witness fees and any and all court costs.
- AEG will indemnify and hold Client harmless from and against demands, damages and expenses caused by the negligent acts and omissions of AEG and breach of contract and those acts, omissions, and breaches of persons for whom AEG is legally responsible. Client will indemnify and hold AEG harmless from and against demands, damages and expenses caused by the negligent acts and omissions of Client and breach of contract and those acts, omissions and breaches of persons for whom Client is legally responsible.
- To the extent that may be necessary to indemnify either AEG or Client under the preceding statement, both parties expressly waive, in favor of the other, any immunity or exemption from liability that exists under any worker compensation law.
- Client agrees to compensate AEG for all reasonable fees and expenses if AEG is required to respond to legal processes resulting out of a proceeding as to which AEG is not a party.
- In no event shall AEG’s liability for damages, whether based on contract, tort (including, but not limited to, negligence, nuisance, trespass or privacy action) or any other legal theory, exceed the total amount paid by Client for services performed under this proposal. In no event shall AEG be liable to Client for incidental, exemplary, special or consequential damaged (including loss of profits), even if AEG has been advised of the possibility of such damages. Client acknowledges that the fees charged by AEG for services herein are based, in part, on this limitation of liability.
- Client acknowledges that microbiological growth could reoccur if the sources of the moisture are not remedied. Continued moisture intrusion could also lead to microbiological growth after completion of the mold investigation conducted by AEG. AEG will not be held liable for continued/reoccurrence of growth if the sources of moisture have not been addressed.
- Upon the request of Client, AEG will provide a certificate of insurance naming Client as the Certificate Holder. A certificate of insurance naming Client an Additional Insured will only be provided if stipulated in the proposal and the cost of such additional insurance coverage is included in the said proposal. Certificates of insurance naming Client’s architects, construction managers or other professional services groups/consultants will only be done in accordance with this item if a mutual exchange of policies and coverage is made protecting AEG against acts, errors and omissions of those parties.
- AEG shall not be deemed in default of these terms & conditions, associated written agreements, or any duty hereunder to the extent that any delay or failure in the performance of its obligations’ results, without its fault or negligence, from any cause beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, acts or delays of other subcontractors or suppliers, fire, flood, labor disturbances and severe weather.
- This agreement is the entire agreement and supersedes all prior agreements. The agreement may be modified only in writing making specific reference to the provision modified. Any captions or definitions used herein are for convenience only and are not part of this proposal and do not in any way limit or amplify terms and provisions hereof.
- Neither AEG nor Client will assign this agreement without the written approval of the other party. However, AEG does reserve the right to subcontract portions of the work to other parties as deemed necessary, including, but not limited to, laboratory services (as previously discussed).
- It is customary for the Consultant that provides inspection services and design recommendations to be retained to provide observation and/or related management services during the remediation work. If AEG is not retained to provide continuing services, Client agrees to hold AEG harmless from all claims, losses, and expenses arising out of any interpretations, clarifications, substitutions or modifications provided by Client or others.
- AEG shall have the right to utilize Client’s name and a general description of the services provided as reference to other potential clients, unless instructed otherwise by Client. AEG will not use any documents, photos or specific references to Client, Client’s projects or facilities unless authorized to do so in any sales, advertising or company brochures.