Effective: January 1, 2002
SCOPE OF SERVICES - WestWater Resources and its subcontractors, if any, referred to herein as "WestWater," will perform the services necessary to the completion of water rights acquisition and transfers, sale or purchase of water utilities or water sources including assistance in preparation of contracts, title-searches, historical research, preparation of drawings, technical studies, consultation with state regulatory agencies, and any and all activities necessary to support applications for permits, and expert testimony as required as defined in writing and approved by WestWater and Client, referred to herein as "Services" in accordance with the following "Commercial Terms".
BILLING RATES - Charges for all professional, technical and administrative personnel directly charging time to the project will be calculated and billed on the basis of the following staff category hourly "Billing Rates". Billing Rates include fringe benefits, burden and fee.
All staff personnel have been classified in the above staff categories based on discipline skills, education and experience level. All travel, to a maximum of eight hours per day, will be charged at the Billing Rates. Billing Rates are based on a forty-hour work week. Overtime hours for exempt employees (non-hourly) will be charged at the standard Billing Rate. Overtime hours, authorized by Client, of non-exempt (hourly-non-supervisory) employees are charged at 150%. of the Billing Rate.
EXPERT TESTIMONY - Expert witness testimony or participation at hearings or depositions, including necessary preparation time will be charged at 200% of the Billing Rate.
REIMBURSABLE COSTS - Reimbursable Costs are all costs and expenses incurred by WestWater directly attributable to the performance of Services. Reimbursable Costs include shipping charges, printing and reproduction, special fees, permits, special insurance and licenses, subcontracts, laboratory services, outside computer time, and miscellaneous materials and rental of specialized WestWater equipment or equipment rented from third party vendors. Travel and travel-related expense and equipment purchased for a project with advance authorization are computed on the basis of actual cost plus fifteen percent (15%).
INDIRECT COSTS - Indirect Costs are calculated as fifteen percent (15%) of "Reimbursable Costs".
Charges for WestWater's inventory supplies, usage of WestWater's computers and lease of WestWater-owned equipment carry no override.
INVOICING AND PAYMENT - Invoices will be issued monthly itemizing the staff categories worked and the Other Direct Costs. Supporting documentation will be provided upon Client's request and at Client's expense, to include associated labor and copying costs. Payments are due at the address appearing on the invoice on receipt of the invoice. In addition WestWater may, after giving seven (7) days written notice to Client or its successors or assigns, suspend services without liability until the Client or its successors or assigns has paid in full all amounts due WestWater on account of Services rendered and expenses incurred including interest on past due invoices at the rate of 1-1/2% per month (18% per annum).
ESTIMATES OF COSTS AND SCHEDULES - WestWater's estimates of costs and schedules are for Client's budget and planning assistance. Cost and schedule estimates are based on our best judgment of the requirements known at the time of the proposal and can be influenced favorably or adversely by Client needs and unforeseen circumstances. WestWater or its subcontractors will endeavor to perform the Services and accomplish the objectives within the estimated costs and schedule and notify the Client or its successors or assigns in advance of material variances. In such event, the Client may wish to (1) redefine the scope of Services in order to accomplish Client's budget objectives, or (2) terminate Services at a specific expenditure level. If option (2) is chosen, WestWater will turn over data, results and materials completed at the authorized level without further obligation or liability to either party except payment for Services performed.
AGREEMENT - The Commercial Terms and the attached General Conditions (WestWater Form 102) govern the performance of the services and rights and obligations of the parties.
Effective: February 22, 2016
ACCESS - Client grants WestWater Resources and its subcontractors, if any, referred to herein as "WestWater", authority to enter the property upon which WestWater's Services are to be performed ("Site"). WestWater will take reasonable precautions to minimize any damage to the Site and adjoining properties and any cost of correction, repair or replacement shall be borne by Client or its successors or assigns.
CLIENT INFORMATION - Client warrants the completeness and accuracy of information supplied by it to WestWater and acknowledges that WestWater is relying upon such information without verification by WestWater of its completeness and accuracy. Client or its successors or assigns shall immediately notify WestWater in writing of any information or data in the possession of or known to Client relating to subsurface conditions affecting the Site.
Client agrees to advise WestWater in writing prior to the commencement of Services of the existence of dust, fumes, gas, noise, vibrations or other particulate or non-particulate matter at or near the Site which may create a potential health hazard or nuisance to anyone working within the area and the existence and identity of any known hazardous substance or waste materials. In the event any such conditions are encountered during the course of WestWater's Services, Client agrees that the Services, schedule and fees may be adjusted.
STANDARD OF SERVICES AND WARRANTY - WestWater shall perform its Services in accordance with generally accepted standards.
Client acknowledges that the Services may involve the use of tests, calculations, analyses and procedures which are in constant state of change and refinement and that changes in methods and procedures have been made, are now being made, and are expected to be made in the future. Client recognizes that the state of practice is changing and evolving and that standards and methods existing as of the effective date of these Commercial Terms may change as knowledge increases and the state of the practice continues to improve. Client recognizes that common exploration methods used for investigations, such as drilling, boring or excavating trenches involve an inherent risk to the property and adjoining properties. In the event WestWater is to conduct test borings or establish monitoring wells, Client acknowledges that the accuracy of said test borings and wells relates only to the specific location of the boring or the well and that the nature of many Sites is such that differing subsurface soil characteristics can be experienced within a small distance and that greater accuracy may be obtained when the number of test borings or monitoring wells are increased.
WestWater warrants that, if any of its completed Services fail to conform to professional standards, WestWater will, at its expense, perform corrective Services of the type originally performed as may be required to correct any such defective Services of which WestWater is notified by Client or its successors or assigns in writing within six (6) months of the completion of Services. WestWater's total aggregate responsibility for defective Services shall not exceed the lesser one hundred percent (100 %) of the amount paid for Services. WestWater shall, for the protection of Client, request from all vendors and subcontractors from which WestWater procures equipment, materials or services, guarantees which will be made available to Client or its successor or assigns to the full extent of the terms thereof if requested and provided such request is made within six (6) months of delivery of any report. WestWater's responsibility with respect to such equipment, services and materials shall be limited to the assignment of such guarantees and rendering assistance to Client in enforcing the same.
Except as provided in this section, WestWater makes no other warranty, express or implied, and WestWater shall have no other liability to Client for defective Services, whether caused by error, omission, negligence or otherwise.
GENERAL INFORMATION - WestWater will not knowingly disclose to others any confidential information furnished by the Client in connection with this project. Any information which the Client intends to be covered by this Paragraph shall be clearly marked "Confidential", These restrictions shall not apply to information that: (i) WestWater had in its possession prior to disclosure by the Client, (ii) becomes public knowledge through no fault of WestWater, (iii) WestWater lawfully acquires from a party not under any obligation of confidentiality to the Client, or (iv) is independently developed by WestWater. WestWater will not publish, in any technical articles or otherwise, information obtained from the Services in a manner that would be identifiable to the Client's project without prior consent.
Client or its successor or assigns agrees that WestWater may use and publish Client's name and a general description of the Services provided to Client by WestWater in describing WestWater's experience and qualifications to other clients or potential clients.
USAGE OF DATA AND DOCUMENTS - "Information" includes all reports, chain-of-title documents, public records, field data, notes and laboratory test data prepared or gathered by WestWater. This Information shall be considered instruments of service and WestWater shall retain a property interest. Client or its successors or assigns shall have the right to make and retain copies and use all information, provided however, the information shall not be used or relied upon by any party other than Client or its successors or assigns, and such use shall be limited to the particular Site and project for which the information is provided. Any reuse on other projects or locations without the written consent by WestWater or use by any party other than Client or its successor or assigns will be at Client's sole risk and without liability to WestWater and the Client or its successors or assigns shall indemnify and defend WestWater from any claims, losses or liabilities arising therefrom.
INSURANCE AND INDEMNITY - WestWater shall maintain Workers' Compensation and Employer's Liability Insurance in accordance with requirements of the state in which the Services are being performed, comprehensive liability insurance (including contractual and contractor's protective liability coverage) with combined single limit of $1,000,000 per occurrence for bodily injury and property damage and automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage.
WestWater Resources Maintains the following insurance policies:
Workers Compensation: - CNA Insurance
General Business Liability: CNA Insurance
Automobile Policy: Hartford Insurance
Errors and Omissions: Rice Insurance Company
WestWater shall indemnify Client, its trustees, officers, directors, agents, beneficiaries, certificate holders, and employees against claims, demands, and causes of action including expenses of defense for personal injury, disease or death, and loss or damage of property (other than property of Client for which Client or its successors or assigns hereby assumes responsibility) arising during the performance of Services and caused by the sole negligence or willful misconduct of WestWater. WestWater's aggregate liability shall not exceed the recoveries under the types and limits of insurance provided by WestWater hereunder and Client or its successors or assigns agrees to release, defend and indemnify WestWater from and against all further liability arising from such Services.
Client or its successors or assigns shall defend and save harmless WestWater, its trustees, officers, directors, agents and employees from all claims, demands and causes of action including expenses of defense for personal injury, disease or death, and loss or damage of property (including personnel of Client or its successors or assigns, WestWater or subcontractors performing work hereunder) and air, subsurface or ground pollution or environmental impairment arising out of or in any manner connected with or related to the performance of Services, except where such injury, loss or damage shall have been caused by the sole negligence or willful misconduct of WestWater, it being the intention of the parties that Client assume any liability alleged to have resulted from WestWater's joint or concurrent negligence. Client or its successors or assigns agrees to be responsible for the removal and disposal of any hazardous substance or waste uncovered as a result of the Services including drilling mud, if any, used in site investigation which may become contaminated as a result of said investigation.
REMEDIES - Neither party nor their affiliated companies, nor the trustees, directors, officers, agents, employees, contractors, shareholders, certificate holders, or beneficiaries of any of the foregoing, shall be liable to the other in any action or claim for consequential or special damages, loss of profits, loss of opportunity, loss of product, or loss of use and any protection against liability for losses or damages afforded any individual or entity by these terms shall apply whether the action in which recovery of damages is sought is based on contract, tort (including sole, concurrent or other negligence and strict liability of any protected individual or entity), statute or otherwise. To the extent permitted by law, any statutory remedies which are inconsistent with these terms are waived.
Client or its successors or assigns will hold WestWater and its trustees, officers, employees, certificate holders, beneficiaries, agents, and harmless and indemnify them for any action instituted as a consequence of any claim for damages including but not necessarily limited to reasonable attorney's fees, expert fees, and any other costs.
Neither the trustees, officers, employees, certificate holders, beneficiaries, nor agents of WestWater shall be held to any personal liability by reason of the performances of services hereunder and that Client or its successors or assigns waives all rights and privileges against WestWater, its employees, officers, certificate holders, beneficiaries or clients.
In the event of any court ordered judgment adverse to WestWater, Client or its successors or assigns agrees to look only to the assets of WestWater for satisfaction thereof.
RELATIONSHIP OF PARTIES - WestWater's Services are performed as an independent contractor and not as the Client's agent, partner or joint venture.
FORCE MAJEURE - WestWater will have no liability for any failure to perform or delay in performance due to any circumstances beyond its reasonable control, including, but not limited to, strikes, riots, wars, fires, flood, explosion, acts of nature, acts of governments, labor disturbances, delays in transportation or inability to obtain material or equipment.
ENTIRE AGREEMENT - The Client's engagement of WestWater represents Client's acceptance of WestWater's Commercial Terms and these General Conditions, which constitute the entire understanding and supersede any prior or subsequent communications, representations or agreements of the parties, whether oral or written, including Client's additional or different terms and conditions that may be contained in any purchase order, work order, invoice, acknowledgment form, manifest or other document forwarded by the Client to WestWater to which notice of objection is hereby given. If any portion of the Commercial Terms of these General Conditions are held invalid or unenforceable, any remaining portion shall continue in full force and effect. There shall be no assignment of the rights or obligations by either party and any assignment shall render the duties and obligations of the other party null and void. This Agreement supersedes any subsequent agreement either oral or in writing unless specifically incorporated herein.
WestWater Form 102 (1/1/2002)