Burnham Nationwide

• The Customer (“you”) agrees to retain Burnham Nationwide, Inc. (“us” or “we”) as your contractor, to provide the services (“Services”) specified in the Service Proposal (the “Proposal”).

• The Proposal which you sign is accepted by us subject to these Terms and Conditions only.  If you submit or have submitted any different or additional terms and conditions which have not been accepted by us in writing, those different or additional terms and conditions are not binding on us and do not become a part of the Proposal between us.

• If all or any of the Services to be provided under the Proposal are to be provided by any of our affiliates, Burnham New York, Inc. and/or Burnham California, Inc., such affiliate will be deemed included in the Proposal together with us, or in place of us, and the Proposal shall be and remain applicable.
• We have the sole right and obligation to supervise, manage, contract, direct, procure, perform or cause to be performed all Services to be performed by us hereunder unless otherwise provided herein.

• We agree to use our reasonable efforts to perform the required Services as provided in the Proposal in a professional manner on a non-exclusive basis for you in accordance with all applicable laws and regulations.  We shall have the right to provide similar services to any other third party even if that third party is a competitor of yours.   
• Each Proposal constitutes a separate, distinct and independent contract.

Each of us may terminate the Proposal by written notice to the other party if (i) the other party breaches the Proposal and fails to cure the default within seven (7) days after notice of the breach, or (ii) the other party makes an assignment for the benefit of creditors or files or has filed against it any petition in bankruptcy or for reorganization under the U.S. Bankruptcy Code or any other applicable law providing for such relief.  Notwithstanding any such termination, you agree to pay us for all Services performed and expenses incurred up to and including the effective date of such termination.

• We will provide all personnel which we believe are necessary to perform the Services.  All such personnel shall not be deemed to be your employees. We shall have the right to engage outside contractors as are appropriate to provide the Services
• We are providing services as an independent contractor.

• Our fees and related charges for Services are set forth in the Proposal, but may not include charges for out of pocket expenses which we may incur, including but not limited to, building permit fees, courier and express delivery charges, travel charges, contractor licensing fees, bonds and retainers, document search fees and drawing reproduction charges, which shall be billed separately and which shall include an additional 10% service fee. You agree to pay such out of pocket expenses and charges upon demand by us. Applicable sales, excise, use or other taxes incurred by us in connection with the Services will also be payable by you on demand. We may require prepayment of fees of estimated out of pocket expenses prior to commencement of the Services.
• If you are not the owner of the property covered by the Proposal, but expect to be receiving payment for our Services from the owner of such property, payment for our Services will be paid by you within five (5) days after you receive payment, but in any event, within the statutory period for enforcement of our lien rights.
• If you do not make timely payment, we may withhold furnishing you with the permit documents and you further agree to pay a late payment penalty equal to the lesser of 1-1/2% per month of the unpaid amount or the highest lawful rate permitted under applicable law until payment is made. If we initiate legal process or collection efforts to enforce our rights, you agree to additionally pay all of our costs and expenses in connection with such action, including reasonable attorneys’ fees and costs. We shall also have the right to suspend the performance of our Services if your account becomes past due and owing.
• Billing for Services will be made monthly, and payment is due within 30 days thereafter. You will notify us in a reasonable timely manner if you dispute the amount of any invoice which you receive from us. 

• We do not guarantee that municipal approval for the designated construction activity will be issued or that required permits will, in fact, be obtained.  Our sole obligation under the Proposal will be to use our best efforts to plan and manage the municipal approvals required by the Proposal in the most expeditious method possible

• Subject to Section 8 below, you agree to indemnify us, our affiliates, successors and assigns, and their respective officers, directors, agents, and employees and hold them harmless from and against any and all third-party claims, suits, and proceedings, including liability therefrom and costs and fees (including, without limiting the generality of the foregoing, reasonable attorneys’ fees), arising out of our services on your behalf in connection with the Proposal, except to the extent such claims, suits, and proceedings arising out of errors or omissions by us constituting negligence or willful misconduct.
• Subject to Section 8 below, we agree to indemnify, defend and hold you harmless from and against all third-party claims (including reasonable attorneys’ fees if we shall fail to defend) directly arising out of acts, errors or omissions by us constituting gross negligence or willful misconduct.

• Notwithstanding anything herein to the contrary, under no circumstances shall either of us be liable to the other (or to the owner of the property if you are not the owner) for any special or consequential damages in connection with our obligations under the Proposal, or with respect to the services to be provided (including, but not limited to, lost profits), even if we have been apprised of the possibility of such damages; and in any event, our liability to you for any act of negligence or breach of the Proposal shall not exceed three (3) times the amount paid by you to us for the Services (exclusive of out-of-pocket costs and expenses) under the Proposal.  In no event shall we be liable to you for any loss of your data or records, it being understood that you will be responsible for assuring proper and adequate backup and storage procedure of your records.

• We will maintain the following insurance coverages during the term of any Proposal:  
  • Comprehensive General Liability Insurance with limits of not less than Five Million Dollars ($5,000,000) per occurrence and Five Million Dollars ($5,000,000) in the aggregate for bodily injury (including death) and Property Damage. 
  • Workers Compensation insurance in levels as may be required of us by law. 
• With respect to any such policies obtained, upon your request, we shall furnish a certificate of insurance evidencing such coverage. 
• All such insurance, with the exception of Workers Compensation coverage, shall provide for a waiver of subrogation against you. 

• We shall be excused from delays in performing or from our failure to perform hereunder to the extent that such delays or failures result from causes beyond our reasonable control.

• No delay or omission by either of us to exercise any right or power under the Proposal shall impair any such right or power or be construed to be a waiver thereof.  A waiver by either of us of any of the covenants, conditions or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition or agreement herein contained.  Unless stated otherwise, all remedies provided for in the Proposal shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise

•  If a dispute arises from or relates to the Proposal or the breach thereof, and if the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to the Proposal, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any such mediation or arbitration shall be held in or near the city in which the applicable property is located.

• The Proposal constitutes the entire agreement between the parties, and there are no understandings or agreements relating hereto other than those which are expressed 

•  No Assignment.  Neither party shall, without the prior written consent of the other party, assign or transfer the Proposal except by merger, reorganization, consolidation or sale of all or substantially all of the party’s assets, and any attempt to do so shall be void and of no force and effect
• Authorized Agent.  If you are not the owner of the subject property designated in the Proposal, you represent and warrant that you have the authority as agent, to contract on behalf of the said owner for the Services described in the Proposal