1. STANDARD OF CARE
BAKKEN MILLWRIGHT & DESIGN INC. (“BAKKEN”) shall perform its Services in a workmanlike manner with the degree of care, skill and diligence normally employed by others performing the same or similar Services under similar circumstances at the same time and in the same locality.
2. WARRANTY
Except as specifically set forth in this Agreement, BAKKEN has not made and does not make any warranties or representations whatsoever, express or implied, as to Services to be performed or products provided including, without limitation, any warranty or representation as to: (a) the merchantability or fitness or suitability of the Services or products for a particular use or purpose whether or not disclosed to BAKKEN; and (b) delivery of the Services and products free of the rightful claim of any person by way of infringement (including, but not limited to, patent or copyright infringement) or the like. BAKKEN does not warrant and will not be liable for any design, material or construction criteria furnished or specified by Client and incorporated into the Services provided hereunder.
3. PAYMENT TERMS
Invoices will be submitted periodically (customarily on a bi-weekly basis) and are due and payable upon receipt. Client agrees to pay a service charge of 1.5% per month (18% per annum) on any balance not paid within 30 days but in no event shall such service charge exceed the maximum amount allowed by law. Acceptance of any payment from Client without accrued service charges shall not be deemed to be a waiver of such service charges by BAKKEN. In the event Client is past due with respect to any invoice, BAKKEN may, after giving five (5) days written notice to Client, suspend all services without liability until Client has paid in full all amounts owing BAKKEN on account of services rendered and expenses incurred, including service charges on past due invoices. If bills are not paid in full, BAKKEN reserves the right to not file any manufacturer’s warranty on behalf of CLIENT. Payment of invoices is not subject to discount or offset by Client.
4. PAYMENT
Where the method of payment under the Agreement is based upon cost reimbursement (e.g., hourly rate, time and materials, direct personnel expense or per diem), the following terms shall apply. (a) The minimum time segment for charging time worked is one (1) hour. The minimum time segment for charging work done at any of BAKKEN’s offices is one-quarter hour. (b) Direct costs, excluding travel and subsistence, are payable at actual documented cost plus 10% for administration. These direct costs include, but are not limited to, shipping, restocking, communication, printing and reproduction, computer services, supplies and equipment items rented from commercial sources. Travel and subsistence expenses of personnel when on business connected with the Project are reimbursable at cost. (c) When applicable, rental charges will be applied to cover the cost of equipment, apparatus, instrumentation, or other technical machinery. When such charges are applicable, Client will be advised at the start of an assignment, task, or phase. (d) Invoices based upon cost reimbursement will be submitted showing labor (hours worked) and total expense. If requested by Client, BAKKEN shall provide supporting documentation.
5. CHANGE ORDERS
Client agrees there shall be no changes to the Services or additional services provided unless a written “Change Order”, which references this Agreement, is executed by Client prior to the changes to the Services or performance of additional services.
6. TERMINATION
Either party may terminate this Agreement, in whole or in part, by giving fourteen (14) days written notice to the other party, if the other party fails to fulfill its obligations under this Agreement through no fault of the terminating party. Nothing shall prevent the non-defaulting party from pursuing its rights and remedies as contemplated by this Agreement, unless otherwise specifically provided herein. Where the method of payment is a lump sum, the final invoice will include all Services and expenses associated with the Project up to the effective date of termination. Where the method of payment is based upon cost reimbursement, the final invoice will include all Services and expenses associated with the Project up to the effective date of termination. An equitable adjustment shall be made to reimburse BAKKEN for termination settlement costs BAKKEN incurs relating to commitments that had become firm before termination and for a reasonable profit for Services performed.
7. LIMITATION OF LIABILITY
In no event shall BAKKEN be liable for incidental, indirect or consequential damages of any kind. BAKKEN’s maximum cumulative liability with respect to all claims and liabilities under this Agreement, whether or not insured, shall not exceed the total compensation received by BAKKEN under this Agreement. The disclaimers and limitations of liability set forth in this Agreement shall apply regardless of any other contrary provision set forth and regardless of the form of action, whether in contract, tort or otherwise. Each provision of this Agreement which provides for a limitation of liability, disclaimer of warranty or condition or exclusion of damages is severable and independent of any other provision and is to be enforced as such. Client hereby releases BAKKEN from any and all liability over and above the limitations set forth in this paragraph.
8. INSURANCE
BAKKEN shall obtain and maintain during the term of this Agreement, at its own expense, workers’ compensation insurance and comprehensive general liability insurance in amounts determined by BAKKEN and will, upon request, furnish insurance certificates to Client. The existence of any such insurance shall not increase BAKKEN’s liability as limited by paragraph 7 above.
9. HAZARDOUS SUBSTANCES
Client shall inform BAKKEN of the identity, location, quantity, nature, or characteristics of any asbestos, pollutant or hazardous substance, however defined (“Hazardous Substances”) at, on or under the Project site. BAKKEN is not, and has no responsibility as a handler, generator, operator, treater, storer, transporter, or disposer of Hazardous Substances found or identified at the Project. Client agrees to bring no claim for fault, negligence, breach of contract, indemnity, or other action against BAKKEN, its principals, employees, agents, and contractors, if such claim in any way would relate to Hazardous Substances in connection with the Project. Client further agrees, to the fullest extent permitted by law, to defend, indemnify, and hold harmless BAKKEN, its principals, employees, agents, and consultants from and against all claims, damages, losses, and expenses, direct or indirect, or consequential damages, including but not limited to fees and charges for attorneys and court and arbitration costs, arising out of or resulting from the performance of BAKKEN’s Services hereunder, or claims brought against BAKKEN by third parties arising from BAKKEN’s Services or the services of others and/or work in any way associated with Hazardous Substance activities. This indemnification shall survive termination of this Agreement.
10. INDEMIFICATION
Client shall defend, indemnify, and hold harmless BAKKEN, together with its officers, directors, agents, consultants and employees from and against any and all claims, costs, losses and damages, including attorneys' fees and other costs of litigation or dispute resolution arising directly or indirectly from Client’s breach of this Agreement or Client’s fault, negligent acts or omissions or intentional misconduct in connection with this Agreement or the Project. Subject to the limitations set forth in this Agreement, BAKKEN shall defend, indemnify and hold harmless Client from and against any and all claims, costs, losses and damages, including attorneys' fees and other costs of litigation or dispute resolution arising directly or indirectly from BAKKEN’s breach of this Agreement or BAKKEN’s fault, negligent acts or omissions or intentional misconduct in connection with this Agreement or the Project. The indemnification obligations set forth in this paragraph shall survive termination of this Agreement.
11. USE OF IDENTITY
Client agrees that BAKKEN may use and publish Client’s name and a general description of BAKKEN’s services with respect to the Project in describing BAKKEN’s experience and qualifications to other clients or potential clients.
12. RE-USE OF DOCUMENTS
All documents, including drawings and specifications, prepared or furnished by BAKKEN (and BAKKEN’s affiliates, subsidiaries, agents, consultants, and subcontractors) pursuant to this Agreement are instruments of service in respect of the Project, and BAKKEN shall retain ownership thereof, whether or not the Project is completed. Client may make and retain copies for information and reference in connection with the Project; however, such documents are not intended or represented to be suitable for re-use by Client or others on extensions of the Project or on any other project. Any re-use without written verification or adaptation by BAKKEN for the specific purpose intended will be at Client’s sole risk and without liability to BAKKEN or BAKKEN affiliates, agents, subsidiaries, consultants, and subcontractors with respect to any and all costs, expenses, fees, losses, claims, demands, liabilities, suits, actions, and damages whatsoever arising out of or resulting therefrom. Any such verification or adaptation will entitle BAKKEN to further compensation at rates to be agreed upon by Client and BAKKEN.
13. REMEDIES
Subject to the limitations set forth in this Agreement, in the event any party is in default of this Agreement, the non-defaulting party shall be entitled to pursue all rights and remedies available to it under this Agreement or as allowed by law or equity.
14. PROPRIETARY DATA
The technical and pricing information in connection with the Services provided by BAKKEN is confidential and proprietary and is not to be disclosed or otherwise made available to third parties by Client without the express written consent of BAKKEN.
15. GOVERNING LAW
The validity, construction and performance of this Agreement and all disputes between the parties arising out of or related to this Agreement shall be governed by the laws, without regard to the law as to choice or conflict of law, of the State of North Dakota. Client consents to jurisdiction as to all issues concerning or relating to this Agreement or the Project with the federal or state district courts designated for Cass County, North Dakota.
16. FORCE MAJURE
BAKKEN shall not be liable for any loss, damage or delay resulting out of its failure to perform due to causes beyond its reasonable control including, without limitation, acts of nature or the Client, acts of civil authority, terrorists threats or attacks, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, delays in transportation, transportation embargos, extraordinary weather conditions or other natural catastrophe or any other cause beyond the reasonable control of BAKKEN. In the event of any such delay, BAKKEN’s performance date(s) will be extended for that length of time as may be reasonably necessary to compensate for the delay.
17. WAIVER OF JURY
To expedite resolution of any disputes that might arise between BAKKEN and Client, Client waives its rights to a trial by jury of any dispute or claim concerning this Agreement, the Services, the Project and any other documents or agreements contemplated by or executed in connection with this Agreement.
18. NOTICES
Any and all notices, demands or other communications required or desired to be given under this Agreement shall be in writing and shall be validly given or made if personally served; sent by commercial carrier service; or if deposited in the United States Mail, certified or registered, postage prepared, return receipt requested. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand or other communication is given by mail or commercial carrier service, such notice shall be conclusively deemed given three (3) days after deposit thereof in the United States Mail or with a commercial carrier service. Notices, demand or other communications required or desired hereunder shall be addressed to the individuals indicated in this Agreement at the addresses indicated in this Agreement.
19. MISCELLANEOUS
This Agreement shall take precedence over any inconsistent or contradictory provisions contained in any proposal, contract, purchase order, requisition, notice-to-proceed, or like document regarding BAKKEN’s Services. If any provision of this Agreement is determined to be invalid or unenforceable in whole or part by a court of competent jurisdiction, the remaining provisions hereof shall remain in full force and effect and be binding upon the parties hereto. The parties agree to reform this Agreement to replace any such invalid or unenforceable provision with a valid and enforceable provision that as closely as possible expresses the intention of the stricken provision. This Agreement, including but not limited to the indemnification provisions, shall survive the completion of the Services under this Agreement and the termination of this Agreement for any cause. This Agreement gives no rights or benefits to anyone other than BAKKEN and Client and has no third-party beneficiaries except as may be specifically set forth in this Agreement. This Agreement constitutes the entire agreement between the parties and shall not in any way be modified, varied or amended unless in writing signed by the parties. Prior negotiations, writings, quotes, and understandings relating to the subject matter of this Agreement are merged herein and are superceded and canceled by this Agreement. Headings used in this Agreement are for the convenience of reference only and shall not affect the construction of this Agreement. This Agreement and the rights and duties hereunder may not be assigned by Client, in whole or in part, without BAKKEN’s prior written approval. No failure or delay on the part of BAKKEN in exercising the right, power or remedy under this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any rights, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The remedies provided in this Agreement are cumulative and not exclusive of any remedies provided by law.