HEDDERMAN CONSULTING, LLC
GENERAL TERMS AND CONDITIONS FOR EXPERT WITNESS SERVICES
1. Applicability.
(a) These terms and conditions for services (these "Terms") are the only terms that govern the provision of services by Hedderman Consulting, LLC ("Hedderman Consulting") to the Client ("Client").
(b) The accompanying Engagement Letter, Proposal and/or Invoice and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Engagement Letter, Proposal or Invoice, these Terms shall govern, unless the Engagement Letter or Invoice expressly states that the terms and conditions of the Engagement Letter, Proposal or Invoice shall control.
(c) These Terms prevail over any of Client's general terms and conditions regardless of whether or when Client has submitted its request for proposal, order, or such terms. Provision of services to Client does not constitute acceptance of any of Client's terms and conditions and does not serve to modify or amend these Terms.
2. Services. Hedderman Consulting shall provide engineering consulting and/or similar services to Client as described in the Engagement Letter, Proposal and/or Invoice (the "Services") in accordance with these Terms.
3. Performance Dates. Hedderman Consulting shall use reasonable efforts to meet any performance dates specified in the Engagement Letter and /or Proposal and any such dates shall be estimates only.
4. Client's Obligations. Client shall:
(a) cooperate with Hedderman Consulting in all matters relating to the Services and provide such access to any premises required to perform Services as may reasonably be requested by Hedderman Consulting, for the purposes of performing the Services, including, but not limited to, a safe and secure work environment, void of injury and damages, at the site of the Services and unobstructed access to the site of the Services.
(b) respond promptly to any Hedderman Consulting request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Hedderman Consulting to perform Services in accordance with the requirements of this Agreement;
(c) provide copies of or access to all non-privileged materials and/or information as Hedderman Consulting may request to carry out the Services in a timely manner and ensure that such Client materials or information are complete and accurate in all material respects; and
(d) obtain and maintain all necessary consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
(e) promptly notify Hedderman Consulting of when and where Hedderman Consulting may be requested to appear to testify.
(f) promptly notify Hedderman Consulting of the event of settlement or final adjudication of the underlying legal matter, especially if Services are ongoing.
5. Client's Acts or Omissions. If Hedderman Consulting's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, Hedderman Consulting shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Conflicts
(a) Client shall provide notification of all parties and attorneys in the case to Hedderman Consulting before Hedderman Consulting will commence work for Client.
(b) Upon receipt from Client of the list of attorneys and parties specified above, Hedderman Consulting shall, within thirty (30) days, check for conflicts of interests with due care and within the same thirty (30) day period, notify Client of any conflicts of interest discovered that preclude Hedderman Consulting’s further involvement in the underlying legal matter.
(c) Should a conflict of interest arise after commencement of services, Hedderman Consulting will notify Client immediately.
7. Change in Scope.
(a) If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. Hedderman Consulting shall, within a reasonable time after such request, provide a written estimate to Client of:
(i) the likely time required to implement the change;
(ii) any necessary variations to the fees and other charges for the Services arising from the change;
(iii) the likely effect of the change on the Services; and
(iv) any other impact the change might have on the performance of this Agreement.
(b) Promptly after receipt of the written estimate, the parties shall agree in writing on the terms of such change a change in scope. Both parties shall be bound by any change in scope when Client accepts the change in scope by making payment on the associated Invoice.
(c) Notwithstanding Section 7(a) and Section 7(b), Hedderman Consulting may, from time to time change the Services without the consent of Client.
(d) Hedderman Consulting may charge for the time it spends assessing and documenting a change request from Client.
8. Fees and Expenses.
(a) In consideration of the provision of the Services by Hedderman Consulting and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the Engagement Letter, Proposal and/or Invoice.
(b) All fees are nonrefundable.
(c) All fees must be paid in full five (5) business days prior to time reserved for any testimony whether in a deposition, arbitration, or trial. Hedderman Consulting is under no contractual obligation to reserve the time or appear to testify and provide opinions unless Hedderman Consulting has received this payment in full at least 5 (five) business days prior to the time reserved for the scheduled testimony.
(d) Payment of fees is due regardless of the outcome of Hedderman Consulting’s investigation, review, research, or any services performed hereunder and regardless of the outcome of any step of litigation in the underlying legal matter.
(e) Client agrees to reimburse Hedderman Consulting for all reasonable travel and out-of-pocket expenses incurred by Hedderman Consulting in connection with the performance of the Services.
(i) There is no expense limit. Estimates of the cost for certain tasks are provided, if possible. When such expenses are known within a reasonable degree of certainty, a written communication with an estimate of the costs of the product or service will be provided to Client. Additional funds may need to be added to the retainer to cover those expenses.
(ii) Travel will be performed by the most economical means compatible with Client’s time constraints except that business-class air travel accommodations will be used for all flights of more than six hours’ duration.
(f) Client agrees to pay additional fees for any expedited services.
(g) Client understands that Hedderman Consulting will suffer damages from late notice cancellation or rescheduling of Hedderman Consulting’s testimony and that since the precise amount of these damages would be difficult to determine, Hedderman Consulting shall instead be entitled to the cancellation and rescheduling fees.
9. Payment Terms and Late Payments.
(a) Client shall timely pay all fees due to Hedderman Consulting.
(b) Client shall make all payments hereunder in US dollars by check or a payment processing system as selected by Hedderman Consulting.
(c) In the event payments are not received by Hedderman Consulting after becoming due, Hedderman Consulting may:
(i) charge interest on any such unpaid amounts at a rate of 2.5% per month or, the maximum amount permitted under applicable law, from the date such payment was due until the date paid;
(ii) suspend performance for all Services until payment has been made in full;
(iii) withhold reports associated with Services until Client makes all payments in full.
10. Taxes. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder.
11. Cancellation. Subject to Sections 8 and 9, Client may cancel its order for Services at any time with fifteen (15) days advance notice. Hedderman Consulting may cancel, in whole or in part, any order for services under this Agreement
12. Photography. Client grants Hedderman Consulting permission to take photographs during consultation, or other performance of Services and authorizes Hedderman Consulting and its assigns and transferees to use and to copyright Client’s property in print and/or electronically in a photograph, video, or other digital media (“Photos”) in any and all of its reports, illustrations. Client understands and agrees that all Photos will become the property of Hedderman Consulting and may not be returned.
13. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Client under this Agreement or prepared by or on behalf of Hedderman Consulting in the course of performing the Services, including any items identified as such in the Engagement Letter, Proposal or Invoice (collectively, the "Deliverables") except for any Confidential Information of Client or Client materials shall be owned exclusively by Hedderman Consulting. Hedderman Consulting hereby grants Client a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis, solely to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.
14. Confidential Information.
(a) Client Confidential Information
(i) Hedderman Consulting agrees to retain all non-public information obtained from Client as confidential and agrees not to release or discuss any of such information unless Hedderman Consulting has obtained the prior written consent of Client or is otherwise forced, compelled, or required to disclose this information by operation of law or applicable government authority.
(b) Hedderman Consulting Confidential Information
(i) All non-public, confidential or proprietary information of Hedderman Consulting, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to Clients, pricing, and marketing (collectively, "Confidential Information"), disclosed by Hedderman Consulting to Client, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Client without the prior written consent of Hedderman Consulting.
(ii) Client agrees to use the Confidential Information only to make use of the Services and Deliverables.
(iii) Hedderman Consulting shall be entitled to injunctive relief for any violation of this Section.
15. Documents.
(a) Hedderman Consulting shall have no duty to retain any documents, reports, evidence, transcripts, exhibits, e-mails, electronic files or other materials from the underlying legal matter for more than thirty (30) days following the expiration or termination of this Agreement, subject to Section 4(f).
(b) Hedderman Consulting shall return (at Client’s expense) all records and evidence in the underlying legal matter to Client if a written request to do so is received by Hedderman Consulting within thirty (30) days following the expiration or termination of this Agreement, subject to Section 4(f).
(c) Client agrees not to use Hedderman Consulting-generated documents for marketing purposes, for Services other than the Services for which the documents were prepared by Hedderman Consulting, or for future modifications to these Services, without Hedderman Consulting express written permission.
(d) Any reuse or distribution to third parties without such express written permission or case-specific adaptation by Hedderman Consulting will be at the Client’s sole risk and without liability to Hedderman Consulting and Client shall defend, indemnify, and hold harmless Hedderman Consulting from and against any and all Losses (as defined in Section 19) arising out of or resulting from such unauthorized reuse or distribution.
16. Representation and Warranty.
(a) Hedderman Consulting represents and warrants to Client that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
(b) Hedderman Consulting shall not be liable for a breach of the warranty set forth in Section 16(a) unless Client gives written notice of the substandard Services, reasonably described, to Hedderman Consulting within 48 hours days of the time of delivery by Hedderman Consulting.
(c) Subject to Section 16(b), Hedderman Consulting shall, in its sole discretion, consider available remedies; provided however, Hedderman Consulting is not obligated to provide to the Client any: refund, credit, re-performance of Services.
(d) Hedderman Consulting is under no duty to provide and express opinions if Hedderman Consulting is given time deadlines or cost- based or other restrictions by Client that would not reasonably allow Hedderman Consulting to in good faith formulate and express opinions with reasonable care.
(e) THE REMEDIES SET FORTH IN SECTION 16(c) SHALL BE THE CLIENT'S SOLE AND EXCLUSIVE REMEDY AND HEDDERMAN CONSULTING'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 16(a).
17. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 16(a), HEDDERMAN CONSULTING MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
18. Limitation of Liability.
(a) IN NO EVENT SHALL HEDDERMAN CONSULTING BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT HEDDERMAN CONSULTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL HEDDERMAN CONSULTING'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO HEDDERMAN CONSULTING PURSUANT TO THE APPLICABLE INVOICE.
19. Indemnification. Client will indemnify, defend and hold harmless Hedderman Consulting, its members, officers, directors, employees, agents and representatives from and against all losses, damages, liabilities, costs, and expenses including, without limitation, property damage, loss of profits or revenue, loss of use of any property, cost of capital, personal or bodily injury, or death (“Losses”), that may arise pursuant to or in connection with the Agreement or the Services, regardless of whether such Losses are suffered directly by Client or arise pursuant to or in connection with a third-party suit, claim, counterclaim, demand, judgment or other action (each a “Claim”) and regardless of whether or not Hedderman Consulting or any third-party is proportionately negligent with respect to such Losses and/or Claim, provided that Client need not indemnify Hedderman Consulting for Hedderman Consulting’s obligation, if any, to Client under the remedies described herein. For the avoidance of doubt and without limitation, this indemnification obligation requires Client to pay any judgments against Hedderman Consulting or any other indemnified party resulting from any Claim, any court costs of Hedderman Consulting or any other indemnified party in connection with any Claim, and any reasonable attorneys’ fees and disbursements incurred by Hedderman Consulting or any other indemnified party in Hedderman Consulting’s defense of any Claim. Hedderman Consulting will have the sole and exclusive right to conduct the defense of any Claim at Client’s sole and exclusive cost and expense. Client’s indemnification obligation does not depend on the truth or accuracy of any allegations made against Hedderman Consulting, Client or any third party.
20. Right of Withdrawal.
(a) Hedderman Consulting shall have the absolute right to withdraw, without any liability, from the case if Client violates any of the duties specified in Section 4 or if:
(i) Hedderman Consulting discovers a conflict of interest which precludes Hedderman Consulting’s further involvement in the underlying legal matter.
(ii) Hedderman Consulting discovers that it is unable to perform in accordance with the warranty as defined in Section 16(a).
(b) Notice of withdrawal shall be in writing from Hedderman Consulting to Client. In the event of withdrawal, the parties agree that Client remains fully liable for all accrued but unpaid fees, expenses, and interest.
21. Termination. In addition to any remedies that may be provided under this Agreement, Hedderman Consulting may terminate this Agreement with immediate effect upon written notice to Client, if Client:
(a) fails to pay any amount when due under this Agreement and such failure continues for 30 days after Client's receipt of written notice of nonpayment; or
(b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part.
22. Insurance. During the term of this Agreement and for a period of one year thereafter, Client shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to commercial general liability policy in a sum no less than $1 Million with financially sound and reputable insurers. Upon Hedderman Consulting's request, Client shall provide Hedderman Consulting with a certificate of insurance from Client's insurer evidencing the insurance coverage specified in these Terms. Client shall provide Hedderman Consulting with 30 days' advance written notice in the event of a cancellation or material change in Client's insurance policy. Except where prohibited by law, Client shall require its insurer to waive all rights of subrogation against Hedderman Consulting's insurers and Hedderman Consulting.
23. Non-Disparagement. Hedderman Consulting and Client agree that neither shall directly or indirectly, make or cause to be made any disparaging, denigrating, derogatory or negative, misleading or false statement orally or in writing to any person, including customers or prospective customers, competitors and advisors to the Client, its Affiliates or members of the investment community or press, about the other party, its Affiliates or their respective officers, directors, stockholders, managers, members, partners, employees or agents. Client agrees that Hedderman Consulting may make mention that Hedderman Consulting provides the Services to Client on Hedderman Consulting’s website, social media other promotional materials after the conclusion of Services unless restricted by written agreement.
24. Waiver. No waiver by Hedderman Consulting of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Hedderman Consulting. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
25. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Client to make payments to Hedderman Consulting hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities, terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 30 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 30 days following written notice given by it under this Section, either party may thereafter terminate this Agreement upon 30 days' written notice.
26. Assignment. Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Hedderman Consulting. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
27. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
28. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
29. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania.
30. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the Commonwealth of Pennsylvania in each case located in the City of Pittsburgh and County of Allegheny, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
31. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Engagement Letter or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
32. Mediation. Hedderman Consulting and Client will attempt to resolve any dispute in connection with this Agreement on an amicable basis through prompt, good faith discussions and non-binding mediation.
33. Arbitration. Any dispute that cannot be resolved by Hedderman Consulting and Client will be determined by final and binding arbitration in Pittsburgh, Pennsylvania, before a sole arbitrator who will award attorneys’ fees and other costs to the substantially prevailing party. The arbitration will be administered under the rules of the American Arbitration Association (AAA). The arbitration award will be in writing and will specify the factual and legal bases for the award. Judgment on the award may be entered in any court having jurisdiction. Notwithstanding anything in this Agreement to the contrary, if either Hedderman Consulting or Client initiates arbitration before mediation, that party will be responsible for the other party’s attorneys’ fees and costs of arbitration.
34. Electronic Consent. Client acknowledges that Client’s electronic submissions constitute Client’s agreement and intent to be bound by the Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act"), the Pennsylvania Electronic Transactions Act, or other similar statutes, CLIENT HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, APPLICATIONS AND OTHER RECORDS AND ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED WITH HEDDERMAN CONSULTING. Further, Client hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. Client may obtain a copy of the Agreement and these Terms and Conditions of Service by printing them now at no additional cost to Client or by contacting Hedderman Consulting.
35. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate nor render unenforceable such term or provision in any other jurisdiction.
36. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law, Insurance, Submission to Jurisdiction, and Survival.
37. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
12072023