TERMS AND CONDITIONS
Advantage Elevator Inspections & Consultants, LLC., aka in this document as AEI&C
AGREEMENT BETWEEN USER/CLIENT and ADVANTAGE ELEVATOR INSPECTIONS & CONSULTANTS, LLC
The Advantage Elevator Inspections and Consultants, LLC’s Web Site using the domain: www.advantageelevatorinspections.com is comprised of various web pages operated by Advantage Elevator Inspections and Consultants, LLC. Advantage Elevator Inspections and Consultants, LLC’s Web Site is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein. Your use of the Advantage Elevator Inspections and Consultants, LLC’s Web Site constitutes your agreement to all such terms, conditions, and notices.
Advantage Elevator Inspections and Consultants, LLC reserves the right to change the terms, conditions, and notices under which the Advantage Elevator Inspections and Consultants, LLC’s Web Site is offered, including but not limited to any charges associated with the use of the Advantage Elevator Inspections and Consultants, LLC’s Web Site.
LINKS TO THIRD PARTY SITES
The Advantage Elevator Inspections and Consultants, LLC’s Web Site may contain links to other Web Sites (“Linked Sites”). The Linked Sites are not under the control of Advantage Elevator Inspections and Consultants, LLC and Advantage Elevator Inspections and Consultants, LLC is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. Advantage Elevator Inspections & Consultants is not responsible for webcasting or any other form of transmission received from any Linked Site. Advantage Elevator Inspections & Consultants is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Advantage Elevator Inspections & Consultants of the site or any association with its operators.
NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the Advantage Elevator Inspections & Consultants Web Site, you warrant to Advantage Elevator Inspections & Consultants that you will not use the Advantage Elevator Inspections & Consultants Web Site for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use AEI&C’s Web Site in any manner which could damage, disable, overburden, or impair AEI&C’s Web Site or interfere with any other party’s use and enjoyment of the AEI&C’s Web Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the AEI&C’s Web Sites.
SCOPE OF SERVICES
During the term of a signed agreement, Client may call upon Advantage Elevator Inspections & Consultants, LLC (AEI&C) to perform specific inspection work and/or third-party witness inspection work as determined from the scope of services defined per project in accordance with a signed agreement. Individual projects may be delineated via a specific proposal in accordance with the terms and conditions set forth herein.
If AEI&C is performing this agreement as anINSPECTOR, then AEI&C depending on the specific scope of work and the type of equipment may perform inspections to ensure compliance with local jurisdictional rules or nationally recognized standards on the design, and safety of equipment; general maintenance procedures and the basic operation of the elevators, escalators, moving walkways and other conveyances that are described in the scope of work.
If AEI&C is operating as a THIRD PSRT WITNESS: then AEI&C in compliance with local jurisdictional rules will witness the required safety tests that are performed by an elevator service provider. AEI&C does not actually conduct or coordinate the safety tests. AEI&C’ sole responsibility is to witness and ensure that results of the tests performed by the elevator maintenance provider performs the required safety tests is in compliance with appropriate rules and that all tests are completed in a professional manner in accordance with generally accepted guidelines.
AEI&C will upon request, assist the Client in the processing and filing of the required documentation to the appropriate agencies. In no event, whether operating as an Inspector or Third-Party Witness, should the services of AEI&C be confused with that of a mechanic or other repair personnel. AEI&C is not responsible for the repair and/or maintenance of any of the devices that are inspected. AEI&C does not have any ownership, control or responsibility to ensure that any required maintenance, recommendations or suggestions are implemented.
AEI&C, at its sole discretion, as a courtesy to Client may assist and/or provide inspection filing services to the Client for required elevator inspection reports, AEI&C cannot and will not be held responsible for any fees, penalties or late charges that may be assessed as a result of any delays and/or failures by the Client, the Elevator Maintenance/TestingComp any or any other third-party.
Client shall pay, and AEI&C shall accept in full consideration for the performance of the Services, the sum of the reimbursable costs submitted per proposal in accordance with the agreed upon fee schedule per project.
TERMS OF PAYMENT
AEI&C shall invoice Client and Client shall pay to AEI&C for its consulting services as follows:
- Fees and all other charges will be billed to Client monthly.
- Fees shall be paid by Client within ten (10) days of being invoiced by AEI&C. If the invoice is not paid withins uch period, Client shall be charged a late fee equal to ten (10) percent of the unpaid invoice, which will provide the Client an additional thirty (30) days from the original due date to pay the invoice, after this one-time
extension Client shall be liable to AEI&C for interest charges at the rate of the lower of eighteen (18) percent per annum or the maximum interest rate allowed by law, which will start to accrue starting on the fortieth (40) day of being invoice by AEI&C.
- If Client fails to pay any invoice fully within ten (10) days after invoice date, AEI&C may, at any time, and
without waiving any other rights or claims against Client and without thereby incurring any liability to Client,
elect to terminate performance of services immediately following written notice from AEI&C to Client.
Notwithstanding any such termination of services, Client shall pay AEI&C for all services rendered by AEI&C up to
the date of termination of services plus all interest, termination costs and expenses incurred by AEI&C. Client
shall reimburse AEI&C for all costs and expenses of collection, including reasonable attorney’s fees.
RELATIONSHIP OF PARTIES
AEI&C is an independent contractor, and nothing contained herein shall be construed as constituting any other relationship with Client, nor shall it be construed as creating any relationship whatsoever betweenC lient and AEI&C’ employees. AEI&C shall not be entitled, under this contract or otherwise, to any of the benefits under any employee benefit plan which Client or its affiliates or subsidiaries presently has in effect or may put into effect; nor will AEI&C be considered an employee for purposes of any tax or contribution levied by any federal, state or local government. AEI&C has sole authority and responsibility to hire, fire and otherwise control its employees, and neither AEI&C nor any of its employees are employees of Client. AEI&C agrees to comply with laws, rules, regulations and ordinances applicable to
it as an employer.
STANDARD OF CARE
AEI&C represents that the services, findings, recommendations and/or advice provided to AEI&C will be prepared, performed, and rendered in accordance with procedures, protocols and practices ordinarily exercised by professionals in AEI&C’ profession for use in similar assignments, and prepared under similar conditions at the same time and locality. client acknowledges and agrees that AEI&C has made no other implied or expressed representation, warranty or condition with respect to the services, findings, recommendations or advice to be provided by AEI&C pursuant to this agreement.
Client shall defend, indemnify and hold harmless AEI&C, its employees, directors, officers, and agents, from and against claims, losses, liabilities, and reasonable costs and expenses (including reasonable attorney’s fees) that are:
- related to, or caused by the negligence or willful misconduct of Client, its employees, or agents;
- related to this Agreement or the work to be performed by AEI&C for which AEI&C is not expressly responsible;
- brought on behalf of any third-party
- the expressed responsibility of the Client under this Agreement.
LIMITATION OF LIABILITY
The inspections described in AEI&C’ scope and proposals are provided only to Client. It is understood that Client shall be free to adopt or reject, in whole or in part, any information given by AEI&C as the result of the inspections performed. No undertaking by AEI&C pursuant to the agreement shall be construed to create a basis for reliance by any employee of Client or by any third person on the safety of any equipment, method or process used or employed within Client’s premises. AEI&C’ liability for its negligent professional acts, errors and omissions shall be limited to the value of fee received from Client for the services provided pursuant to the agreement.
Neither AEI&C nor Client shall be liable under any circumstances for loss of profits, loss of product, consequential damages of any kind, indirect damages of any kind or special damages of any kind to the other party, or to any third party. No punitive or exemplary damages of any kind shall be recoverable against either party under any circumstances.
CAUSE OF ACTION
If Client makes a claim against AEI&C, for any alleged error, omission, or other act arising out of the performance of its professional services and to the extent the Client fails to prove such claim, then the Client shall pay all costs including attorney’s fees incurred by AEI&C in defending the claim. Any cause of action brought against AEI&C
shall be brought within one (1) year of the work or services performed under the agreement.
AEI&C shall use the standard of care in its profession to comply with all applicable federal, state and local laws, codes, ordinance and regulations in effect as of the date services provided.
RESOLUTION – MEDIATION
All claims, disputes, controversies or matters in question arising out of, or relating to, the agreement or any breach thereof, including but not limited to disputes arising out of alleged design defects, breaches of contract, errors, omissions, or acts of professional negligence, except those disputes which arise out of or are related to
collection matters or fees alone under the agreement, (collectively “Disputes”) shall be submitted to non-binding mediation before and as a condition precedent to the initiation of legal proceedings. In no event shall any Disputes be subject to binding arbitration. Upon written request by either party to the agreement for mediation of any dispute, Client and AEI&C shall select a neutral mediator by mutual agreement. Such selection shall be made within ten (10) calendar days of the date of receipt by the other party of the written request for mediation. In the event of failure to reach such agreement or in any instance when the selected mediator is unable or unwilling to serve and a replacement mediator cannot be agreed upon by Client and AEI&C within ten (10) calendar days, a mediator shall be chosen as specified in the Mediation Rules of the American Arbitration Association then in effect, or any other appropriate rules upon which the
parties may agree.
No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder. Each party waives its right to a jury trial in any court action arising between the parties, whether under the agreement or otherwise related to the work being performed under the agreement.
A delay in, or failure of, performance of either party hereto shall not constitute a default hereunder or give rise to any claim for damage if and to the extent such delay or failure is caused by (an) occurrence(s) beyond the reasonable control of the party affected, including, but not limited to, act(s) of God, or the public enemy, expropriation or confiscation of facilities or compliance with any order or request of governmental authority or person(s) purporting to act therefore affecting to a degree not presently existing the supply, availability, or use of engineering personnel or equipment, act(s) of war, public disorder(s), insurrection(s), rebellion(s), or sabotage, flood(s), riot(s), strike(s), or any cause(s), whether or not of the class or kind of those specifically named above, not within the reasonable control of the party affected, and which, by the exercise of reasonable diligence, said party is unable to prevent. A party who is prevented from performing for any reason shall immediately notify the other party in writing of the cause of such nonperformance and the anticipated extent of the delay.
Neither party shall disclose information identified as confidential to anyone except those individuals who need such information to perform the services; nor should either party use such confidential information, except in connection with the Work, the performance of the services or as authorized by the other party in writing.
Regardless of the term of the agreement, each party shall be bound by this obligation until such time as the confidential information shall become part of the public domain. Confidential information shall not include information which is either: (i) known to the public; (ii) was known to the receiving party prior to its disclosure; or (iii) received in good faith from a third party. If either party is required to produce information by valid subpoena or Court order, parties agree to first provide prompt notice to other party in order to allow the party to seek a protective order or other appropriate remedy. This shall not prevent either party from disclosing information to the extent reasonably necessary to substantiate a claim or defense in any adjudicatory proceeding. Client agrees that AEI&C shall be permitted to use Client’s name and
logos in AEI&C’ marketing materials unless advised or prohibited against it by the Client in writing. The technical and pricing information contained in any proposal or other documents submitted to Client by AEI&C is to be considered confidential and proprietary and shall not be released or disclosed to a third party without AEI&C’ written consent.
THIRD PARTY BENEFICIARY
It is expressly understood and agreed that the enforcement of these terms and conditions shall be reserved to the Client and AEI&C. Nothing contained in the agreement shall give or allow any claim or right of action whatsoever by any third person. It is the express intent of the Client and AEI&C that any such person or entity, other
than Client or AEI&C, receiving services or benefits under the agreement shall be deemed an incidental beneficiary.
In the event that these Online Standard Terms and Conditions conflict with the terms and conditions of any other signed written agreement, then these Online Standard Terms and Conditions shall govern and control over any suchconf licts.
The invalidity of any portion(s) or provision(s) of these Online Standard Terms and Conditions shall in no way affect the validity of any other portion(s) or provision(s) hereof. Any invalid or unenforceable provision(s) shall be severed and the balance of the Online Standard Terms and Conditions shall be construed and enforced as if they did not contain a particular portion(s) or provision(s) held to be invalid or unenforceable. The Online Standard Terms and Conditions stated herein, along with the signed agreement, constitute the entire agreement between the parties and shall supersede other agreements and representations made prior to the date hereof. No amendments to this contract or changes in the Scope of the Services shall be valid unless made in writing and signed by the parties. Pre-printed terms and conditions (including, but not limited to, waivers of rights and remedies, and variations from any of the warranty, guarantee, standard of care, indemnity, and liability provisions) contained in purchase orders, work orders, invoices or other documents issued by Client with respect to any services shall have no force or effect and shall be superseded by the Online Standard Terms and Conditions herein. These Online Standard Terms and Conditions shall be interpreted as though prepared by all parties and shall not be construed unfavorably against either party.