For the purpose these terms of service:
“Client” refers to the individual(s) or company that actually ordered the services and authorized the work.
“TNLDS” represents Timothy J Howell, Tennessee Land Development Services, and all officers or employees of Tennessee Land Development Services.
Client and TNLDS agree as follows:
- These terms shall be binding upon the heirs, executors, administrators, successors and assigns of Client and TNLDS.
- These terms contain the entire agreement between the parties relating to the project. Subsequent modifications to these terms shall be in writing and signed by both parties.
- Waiver of any term, condition, or covenant set out herein shall not constitute a waiver of any other term, condition, or covenant.
- If a court of competent jurisdiction holds any parts of these terms to be invalid, the remaining provisions of these terms shall be valid and binding.
- The laws of the State of Tennessee shall govern these terms.
- If TNLDS’s scope of services includes services related to applying for or seeking approval of governmental permits (e.g., zoning, planning, subsurface sewage disposal), such services shall not constitute a representation or guarantee the approval of such permits.
- Client shall deliver, upon TNLDS’s request, any additional information, documents, or funds to pay governmental fees and charges that are necessary for TNLDS to perform its services under these terms.
- All plats, drawings, reports, plans, specifications, field data and notes and other documents, including all documents on electronic media, prepared by TNLDS are instruments of service, and shall remain the property of TNLDS and may be used by TNLDS without the consent of Client. Upon request and payment of all costs, Client will be furnished a signed and sealed copy of all final plats and other documents required by provisions of the agreement to be prepared by TNLDS.
- TNLDS is not responsible for any determination or location of any underground conditions not visible and obvious by inspection of the premises, including, but not limited to, soils, geological conditions, physical devices and facilities, pipelines or buried cables unless specifically included in writing in these terms, and shall not be responsible for any liability that may arise out of the making of or failure to make such determination or location of any subsurface condition.
- TNLDS has the right to complete all services requested pursuant to these terms. In the event these terms are terminated before the completion of all services, unless TNLDS is responsible for such termination, Client agrees to release TNLDS from all liability for services performed. In the event all or any portion of the services by TNLDS are suspended, abandoned, or otherwise terminated, Client shall pay TNLDS all fees and charges for services provided prior to termination. If TNLDS’s services are suspended and restarted, TNLDS will be entitled to additional compensation for extra services pursuant to the provisions of paragraph 15 of these terms. If TNLDS’s services are terminated for the convenience of Client, TNLDS is entitled to reasonable termination costs and expenses, to be paid by Client as extra services pursuant to paragraph 15.
- TNLDS shall be entitled to immediately, and without notice, suspend the performance of any and all of its obligations pursuant to these terms if Client files a voluntary petition seeking relief under the United States Bankruptcy Code or if there is an involuntary bankruptcy petition filed against Client in the United States Bankruptcy Court, and that petition is not dismissed within fifteen (15) days of its filing. Any suspension of services made pursuant to the provisions of this paragraph shall continue until such time as these terms has been fully and properly assumed in accordance with the applicable provisions of the United States Bankruptcy Code and in compliance with the final order or judgment issued by the Bankruptcy Court. If the suspension of performance of TNLDS’s obligations pursuant to these terms continues for a period exceeding ninety (90) days, TNLDS shall have the right to terminate all services pursuant to these terms.
- These terms shall not be construed to alter, affect, or waive any TNLDS’s lien, mechanic’s or materialman’s lien to which TNLDS may be entitled for the performance of services pursuant to these terms. Client agrees to provide TNLDS the name and address of the record owner of the property that is the subject of the project.
- All fees and other charges due TNLDS will be billed upon completion of the service (or portion thereof) and shall be due at the time of billing unless specified otherwise in these terms. If Client fails to pay TNLDS within thirty (30) days after invoices are rendered, TNLDS shall have the right in its absolute discretion to consider such default in payment a material breach of these terms, and TNLDS’s duties under these terms may be suspended or terminated. In such event, Client shall pay TNLDS for all outstanding fees and charges due TNLDS at the time of suspension or termination. If TNLDS elects to suspend or terminate its services pursuant to the provisions of this paragraph, TNLDS is entitled to reasonable suspension or termination costs or expenses.
- Client agrees to pay a monthly late payment charge, which will be the lesser of one and one-half percent (1 -1 /2%) per month or a monthly charge not to exceed the maximum legal rate, which will be applied to any unpaid balance commencing thirty (30) days after the date of the billing unless other arrangements have been made and documented.
- Client agrees that if it requests services not specified in the scope of services described in these terms, Client will pay for all such additional services as extra services, in accordance with TNLDS’s usual and customary billing rates.
- If any staking or monuments are damaged, removed or destroyed by anyone other than TNLDS, the entire cost of new staking or monumentation shall be paid for by Client as extra services in accordance with paragraph 15.
- Client acknowledges that the services performed pursuant to these terms are based upon field and other conditions existing at the time these services were performed. Client further acknowledges that field and other conditions may change at any time, and clarification, adjustments, modifications, and other changes may be necessary to reflect changed field or other conditions. Client shall pay for such clarifications, adjustments, modifications and other changes as extra services in accordance with paragraph 15.
- Client shall pay the costs of all inspection fees, zoning and annexation application fees, assessment fees, soils or geotechnical engineering fees, soils or geotechnical testing fees, aerial topography fees, and all other fees and charges not specifically covered by the provisions of these terms.
- Any area or volume computations or estimates will be performed pursuant to generally accepted standards of professional practice in effect at the time of performance and shall not to be considered as irrefutable or unconditional.
- TNLDS makes no warranty, either express of implied, as to its findings, recommendations, opinions, or professional advice except that its services were performed pursuant to generally accepted standards of professional practice in effect at the time of performance.
- In the event Client agrees to, authorizes, or permits changes in the instruments of service prepared by TNLDS, which changes are not consented to in writing by TNLDS, or Client does not accept opinions or recommendations of TNLDS pursuant to these terms, Client acknowledges that the unauthorized changes and their effects and the failure of the Client to accept the TNLDS’s opinions or recommendations are not the responsibility of TNLDS.
- Client agrees not to use or permit any other person to use instruments of service prepared by TNLDS which are not final and which are not signed and sealed by TNLDS. Client shall be responsible for any such use of non-final instruments of service or other documents not signed and sealed by TNLDS. Client hereby waives any claim for liability against TNLDS for such use. Client further agrees that final plats, specifications, drawings, reports, or other documents are for the exclusive use of Client and may be used by Client only for the project described in these terms. Such final plats, specifications, drawings, reports or other documents may not be changed or used on a different project without written consent of TNLDS.
- In accepting and utilizing any drawings, reports and data on any form of electronic media generated and furnished by TNLDS, Client agrees that all such electronic files are instruments of service of TNLDS, who shall be deemed the author, and shall retain all common law, statutory law and other rights, including copyrights. Client agrees not to reuse these electronic files, in whole or in part, for any purpose or project other than the project that is the subject of these terms. In addition, Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless TNLDS, its officers, directors, employees, agents and subconsultants against all damages, liabilities or costs, including reasonable attorneys’ fees and defense costs, arising from any changes made by anyone other than TNLDS or from any reuse of the electronic files without the prior written consent of TNLDS.
- If TNLDS produces plats, specifications, or other documents and/or performs field services, and such plats, specifications, or other documents and/or field services are required by any governmental agency, and such governmental agency changes its ordinances, codes, policies, procedures or requirements after the date of these terms, any additional services thereby required shall be paid for by Client as extra services in accordance with paragraph 15.
- TNLDS is not responsible for delay caused by activities or factors beyond TNLDS’s reasonable control, including but not limited to, delays by reason of strikes, lockouts, work slowdowns or stoppages, accidents, inclement weather, acts of God, failure of Client to furnish timely information or approve or disapprove of TNLDS’s services or instruments of service promptly, faulty performances by Client or other contractors or governmental agencies. When such delays beyond TNLDS’s reasonable control occur, TNLDS shall not be responsible for damages nor shall TNLDS be deemed to be in default of these terms. Further, when such delays occur, Client agrees that, to the extent such delays cause TNLDS to perform extra services, such services shall be paid for by Client as extra services in accordance with paragraph 15.
- TNLDS is not responsible for the performance of work by third parties.
- Client agrees to limit the liability of TNLDS, its principals, employees and subconsultants, to Client for any claim or action arising in tort, contract, orstrict liability, to the amount of TNLDS’s fee under these terms.
- In the event there is litigation arising from or related to the services provided under these terms, the prevailing party will be entitled to recover all reasonable costs incurred, including staff time, court costs, attorneys’ fees and other related expenses.
- In the event TNLDS institutes litigation to enforce or interpret the provisions of these terms, such litigation shall be brought and adjudicated in the appropriate court in the county in which the TNLDS’s place of business is located, and Client waives the right to bring, try or remove such litigation to any other county or judicial district.
- TNLDS shall not be required to sign any documents, no matter by who requested, that would result in TNLDS having to certify, guarantee, or warrant the existence of conditions whose existence TNLDS cannot ascertain. Client agrees not to make resolution of any dispute with the TNLDS or payment of any amount due the TNLDS contingent upon the TNLDS’s signing or agreeing to any such certification.
- Except as provided in subdivisions (b) and (c), in an effort to resolve any conflicts that arise during the project or following completion of the project, Client and TNLDS agree that all disputes between them arising out of or relating to these terms shall be submitted to nonbinding mediation, unless the parties mutually agree otherwise.
- Subdivision (a) shall not preclude or limit TNLDS’s right to file an action for collection of fees in a court of competent jurisdiction.
- Subdivision (a) shall not preclude or limit TNLDS’s right to perfect or enforce applicable TNLDS’s, mechanic’s or materialman’s liens.