This PROFESSIONAL SERVICES CONTRACT, (“Contract”) made this
____________ day of __________________, 200____, is entered by and
between GpC Home Inspections, a professional home or
building inspection firm (referred to herein as the “Inspector”), and
__________________________________, a professional consultant licensed
or certified in the field of ___________________________,
(“Consultant”), for the solicitation and delivery of professional
consulting services as more specifically set forth in the following
terms and conditions of this Contract.
RECITALS
WHEREAS, This Contract relates to the inspection of a structure
(referred to herein as the “Property”) located at the following
address: _________________________________________________________, and
WHEREAS, This Contract is made in conjunction with the Inspector’s
separate contract with a third-party client (“Client”) for a general
inspection of a residential or commercial building, and
WHEREAS, the Inspector requires the professional services
(referred to herein as “Services”) of the Consultant as described in
the “Statement of Work,” attached hereto and incorporated into this
Contract as “Exhibit A,” in the performance of the general inspection
for the Client, and
WHEREAS, the Inspector intends to utilize the work product produced in
the course of the Services as described herein to assist in the general
inspection of the Property and the preparation of a written inspection
report for the Client, and
WHEREAS, the Inspector is a member of the International
Association of Certified Home Inspectors (“InterNACHI”) but InterNACHI
is not a party to this Contract and the Consultant acknowledges that
InterNACHI is not a party to this Contract and that InterNACHI has no
control over the Inspector or representations made by the Inspector
and does not supervise the Inspector, and
WHEREAS, the Inspector seeks to hire an outside Consultant to
perform these Services, and the Consultant is available and prepared to
provide the required Services, and
WHEREAS, both parties agree to the rendering of such Services on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. PURPOSE AND SCOPE. The Inspector engages the Consultant to
perform the Services herein described in this Contract to assist the
Inspector in the inspection of the Property and to supplement the
Inspector’s written inspection report to his third-party Client. The
Consultant agrees to faithfully and diligently perform the Services
consistent with the standards of practice in the Consultant’s
professional community, and in return the Inspector covenants to use
best efforts to cooperate with the Consultant in the completion of such
Services and to honor the compensation provisions outlined herein. The
Consultant shall proceed with the Services upon execution of this
Contract by both parties.
2. PERFORMANCE OF SERVICES.
A. Independent Contractor. The Consultant is an
independent contractor and shall not be considered an employee of the
Inspector. Accordingly, the Consultant is not subject to the direct
control of the Inspector. In the performance of the Services, the
Consultant retains the right to control the methods and means of
performance. Consultant understands that Inspector does not carry and
insurance that would cover any injury suffered by Consultant while
performing his duties as required by this Contract.
B. Consultant’s Personnel. The Inspector acknowledges and
authorizes the Consultant to engage the assistance of persons either
under the Consultant’s employ or acting as independent contractors to
complete certain components of the Services contemplated by this
Contract.
C. Hiring of Sub-contractors. The Inspector authorizes the
Consultant to hire other professionals or experts, as may be required
from time to time, to complete the Services contemplated under this
Contract. Should additional expenses or fees apply beyond the fees
contemplated herein, the Consultant agrees to seek prior approval from
the Inspector and the parties shall execute a written agreement to
reflect such new payment or fee requirements.
3. PAYMENTS AND EXPENSES.
A. “Flat Fee” Contract. For professional services rendered
by the Consultant, the Inspector agrees to pay the Consultant a flat
fee of $____________________.
B. Expenses. In addition to payments described in this
paragraph, the Inspector agrees to reimburse the Consultant for actual
expenses agreed to by the parties in writing and in advance of
incurring such expenses.
C. Method of Payment. The Consultant shall submit a
written request for payment upon completion of the Services. Upon
receipt of such payment request, the Inspector will then cause payment
to be made to the Consultant not later than ten (10) days after receipt
of such request.
4. RESPONSIBILITIES OF THE PARTIES.
A. Inspector. The Inspector agrees to
cooperate with the Consultant and grant access to the property,
information and documentation controlled by the Inspector with the
Client’s authorization. The Inspector hereby agrees that it will make
available to the Consultant in the performance of Services herein,
whether public or private, all reports, references, documentation, or
other information held by the Inspector on behalf of the Client that is
necessary for the Consultant to complete the Services contemplated
herein.
B. Consultant. The Consultant agrees to
diligently and professional perform the Services herein. The
Consultant agrees not to communicate directly with the Client, and all
such information, documentation, or communication resulting from the
performance of the Services herein shall be directed only to the
Inspector. The Consultant acknowledges that the relationship between
the Inspector and the Client is private and confidential, and agrees
not to interfere in any way with such relationship. Further, the
Consultant grants the Inspector all rights to the work product
resulting from the performance of Services under this Contract and
acknowledges that the Inspector may elect to deliver all, part or none
of said work product to the Client, and the Consultant expressly grants
the Inspector permission to discuss the work product of the
Consultant’s Services hereunder with the Inspector’s Client and other
real estate agents, owners, repairpersons, and other interested
parties. The Inspector accepts no responsibility for use or
misinterpretation by third parties of the Consultant’s work product
hereunder.
5. TERM. Upon execution by the undersigned parties this Contract
shall become effective and enforceable by both parties upon the latest
date signed by either party and shall continue in full force and effect
through the completion of all Services, unless terminated earlier by
operation of and in accordance with this Contract. This Contract may
only be extended thereafter by mutual written agreement of the parties.
6. TERMINATION. This Contract may not be canceled or terminated
except for cause upon the default or material breach by the other
party. Written notice of termination or cancellation shall be
delivered immediately upon determination of default and shall be made
to the other party according to the notice provisions established
herein. Upon termination, this Contract shall become of no further
force or effect whatsoever and each of the parties hereto shall be
relieved and discharged here from, subject to payment for Services
rendered prior to such termination. Notwithstanding the foregoing, the
provisions of this Contract concerning confidentiality,
indemnification, jurisdiction, and severability shall survive
termination of this Contract.
7. DEFAULT AND REMEDIES.
A. Default. The failure to perform any obligation required under this Contract shall constitute default.
B. Remedies. Upon said breach or default and notice of
termination, the party in default must immediately commence to cure
such breach to avoid termination or cancellation of this Contract.
Failure to cure said default within seven (7) days of notice of
termination will result in cancellation of this Contract.
8. WORK PRODUCT. All documents, reports, records, notes, data,
samples, information, processes, and materials of any kind resulting
from the performance of Services under this Contract shall jointly
become the property of both the Consultant and the Inspector. Such
parties may use such information, etc., as necessary under this
Contract so long as none of its provisions are violated by such use.
9. FORCE MAJURE. Neither party shall be liable to the other for
failure to perform under this Contract if such failure to perform
arises out of causes beyond the control and without the fault or
negligence of the nonperforming party. Such causes may include, but
are not limited to, acts of God or the public enemy, fires, floods,
epidemics, quarantine restrictions, freight embargoes, and unusually
severe weather.
10. INDEMNIFICATION. The Consultant shall indemnify, defend and
hold harmless the Inspector and its officers, agents, employees,
successors and assignees from any and all claims, lawsuits, losses and
liability arising out of failure to perform any of the Consultant’s
duties and obligations hereunder or in connection with the negligent
performance of the Consultant’s duties or obligations, including but
not limited to any claims, lawsuits, losses or liability arising out of
the Consultant’s malfeasance. Concurrently, the Inspector shall
indemnify, defend and hold harmless the Consultant and its officers,
agents, employees, successors and assignees from any and all claims,
lawsuits, losses and liability arising out of failure to perform any of
the Inspector’s duties and obligations hereunder or in connection with
the negligent performance of the Inspector’s duties or obligations,
including but not limited to any claims, lawsuits, losses or liability
arising out of the Inspector’s malfeasance.
11. CONFIDENTIALITY. Both parties agree to keep confidential all
documents, data compilations, reports, computer programs, and any other
information provided under this Contract from one party to the other
party. Neither party shall reveal such confidential information to any
person or entity, either during the term of this Contract or at any
time thereafter. Upon expiration of this Contract, or termination as
provided herein, each party will return materials which contain any
confidential information to the other party. Each party may keep one
copy for its confidential file. For purposes of this paragraph,
confidential information is defined as all information disclosed to the
Consultant which relates to the Inspector’s past, present, and future
activities, as well as activities under this Contract, which
information is not otherwise of public record. Concurrently, the
Inspector acknowledges that the work product of the Consultant is a
valuable asset and agrees to keep confidential all such information
relating to the Consultant.
12. WARRANTIES. Performance of the mutual promises and covenants
herein creates no express or implied warranties, and each party shall
in no way be responsible or otherwise liable for any consequential
damages that may arise under this Contract.
13. DISPUTES. The parties shall make a good faith effort to
settle any dispute or claim arising under this Contract prior to
engaging in litigation. If the parties fail to resolve such disputes
or claims, each party hereby consents to enter non-binding mediation to
be held in the jurisdiction in which the Inspector keeps its primary
place of business, the cost of which is to be shared equally by the
parties. If a satisfactory result is not obtained in mediation,
litigation may then be pursued. In the event of a claim against either
party, the claimant agrees to supply the other party with written
notification of nature of the claim within 14 days of discovery of the
alleged basis for the claim.
Failure to comply with the above conditions will release the
non-claiming party and its agents from any and all obligations or
liability of any kind. Neither party shall have a cause of action
against the other if more than one year passes from the date of the
completion of Services hereunder, or termination of this Contract by
its terms, before such claim is made. If litigation ensues under this
Contract, the party that fails to prevail in such action shall be
liable to pay the prevailing party’s legal fees and costs, including
attorney’s fees, if any.
14. NOTICE. All notices, consents, approvals, requests and other
communications ("Notices") required or permitted under this Contract
must be given in writing and mailed by first-class mail to the last
address given by one party to the other.
15. APPLICABLE LAW AND VENUE. The parties agree that any
litigation arising out of this Contract shall be filed only in the
Court having jurisdiction in the County in which the Inspector has its
principal place of business. In the event that the Consultant fails to
prove any adverse claims against the Inspector in a court of law, the
Consultant agrees to pay all legal costs, expenses and fees of the
Inspector in defending said claims. The Consultant further understands
that any legal action against InterNACHI itself allegedly arising out
of this Contract or the Inspector’s relationship with InterNACHI must
be brought only in the District Court of Boulder County, Colorado.
16. ASSIGNMENT. Neither party shall assign or otherwise transfer
any of the rights or delegate any of the duties set forth in this
Contract without the prior written consent of the other party, which
shall not be unreasonably withheld.
17. INSURANCE. The Consultant shall carry those insurance
policies for errors and omissions as customarily held in the
Consultant’s profession or field of expertise. The Inspector carries
those certain insurance policies as described as follows:
________________________________________________________________________________________________________________
18. SUCCESSORS AND ASSIGNS. This Contract shall inure to the
benefit of and be binding upon the legal representatives and successors
of both parties, to the extent allowed by law.
19. PAYMENT OF TAXES. The Consultant shall pay all taxes and
other such amounts required by federal, state and local law, including
but not limited to federal and social security taxes, workers'
compensation, unemployment insurance and sales taxes.
20. NON-EXCLUSIVITY. Nothing in this Contract shall be construed
to prevent either party from performing the same or similar services
contemplated herein for and on behalf of additional clients, whether or
not said third parties are in direct competition with the either
party’s business operations.
21. AMENDMENT. All Services shall be completed during the term
of the Contract. This Contract may only be amended or extended by
written agreement of both parties. Any changes, change orders,
modifications, revisions or other amendment to this Contract shall be
mutually agreed upon by the parties and shall be incorporated by
written instrument, executed and signed by all parties to this Contract.
22. ENTIRETY OF CONTRACT. This Contract represents the entire
and integrated agreement between the parties and supersedes all prior
negotiations, representations and agreements, whether written or oral.
23. SEVERABILTY. If any part of this Contract is found to
conflict with applicable laws, such part shall be inoperative, null and
void insofar as it conflicts with said laws, but the remainder of this
Contract shall be in full force and effect.
24. TIME IS OF THE ESSENCE. Time is of the essence in all provisions of this Contract.
25. TITLES AND HEADINGS. Titles of paragraphs are for reference
only, and shall not be used to construe the language in this Contract.
26. WAIVER. The waiver of any breach of any term or condition in
this Contract shall not be deemed a waiver of any prior or subsequent
breach.
27. EXECUTION. Execution of this Contract by signature of the
party or its authorized representative certifies that each has read and
understood the contents of this document, that each agrees to be bound
by the terms of this Contract, that each has had opportunity to review
it with a legal representative of their choosing, and that each has the
authority to execute this Contract. If the party executing this
Contract is a corporation, LLC, or similar entity, the person signing
this Contract on behalf of such entity does personally guaranty payment
of the fee by the entity.
IN WITNESS WHEREOF, the parties hereto have executed this Contract.
The INSPECTOR, The CONSULTANT,
By: _______________________________ By: __________________________________
DATE _____________________________ DATE _______________________________
EXHIBIT A
STATEMENT OF WORK
Under this Contract and as part of this Professional Services
Contract, the Inspector and the Consultant agree that the following
elements shall be included under this Statement of Work and shall
constitute the Services to be performed hereunder: