Standard Terms & Conditions of Group IPS
1. DELAYED SERVICES – GROUP IPS shall not be responsible for delays at any time in the progress of the Project or related activity when the delay is due to any cause beyond the reasonable control of GROUP IPS. The parties agree that the time for completion of all work and the termination date shall be extended for a period equal to any delay caused by such circumstances.
2. INVOICE PROCEDURES AND PAYMENT – GROUP IPS shall submit invoices to the Client for Services rendered during each invoicing period. Unless otherwise agreed in writing, payment is due after 30 days of presentation of the invoice. GROUP IPS will invoice Client each month or periodically as the work progresses or pursuant to an invoicing plan as has been agreed with the Client, which will then prevail. IPS can invoice 5 working days after transmittal of each progress report to the Client. Any accepted complaint from the Client on the progress report which is received by GROUP IPS after this period, but at the latest within 25 working days, will be credited to the Client.
For Services provided on a Fixed Fee basis, the amount of each invoice shall be determined on the "percentage of completion method." For services provided on a Time/Material Cost basis, invoices shall include, separately listed, any fees for Services for which time charges and/or material costs apply for the invoicing period. Such invoices shall also separately list reimbursable expenses, if applicable. Such invoices shall be submitted at least monthly by GROUP IPS. In case of late payment, interest will automatically accrue without requirement of notification, at the applicable legal interest rate for commercial transactions, but not less than at an interest rate of 8%. In addition, a 10% penalty on any overdue sums applies, to the extent permitted by law.
Unless otherwise agreed in writing, if the Client pays an invoice within 10 calendar days upon receipt of that invoice, the Client is entitled to a 1% discount on this invoice. This discount will be deducted from the following invoice or a credit note will be issued by Group IPS.
3. OPINION OF PROBABLE CONSTRUCTION COST/COST ESTIMATES - GROUP IPS may have provided as part of this Agreement an estimate of construction cost and project cost estimates and/or an estimated cost to complete the Services contained within the scope of work for the Project. GROUP IPS does not warrant that bids, price quotations, or total project costs will not vary from any opinion or statement of probable costs prepared by GROUP IPS. Included among these variable costs are costs created by regulatory change occurring after execution of the Agreement. Due to these variables GROUP IPS cannot and does not guarantee that actual costs will not vary from estimates provided and will not be liable to Client for any such variance.
4. CHANGE ORDER - GROUP IPS will notify the Client as soon as GROUP IPS is aware that the fee charged will exceed the estimated cost and will provide an explanation for the additional charges. If, after receiving such notification, Client elects to proceed with the Services, Client agrees to pay all fees charged by GROUP IPS in excess of the original estimated cost of the Services. The Client hereby acknowledges that GROUP IPS cannot warrant that GROUP IPS opinions or estimates of probable construction or operating costs will not vary from actual costs incurred by the Client.
5. CONSTRUCTION PHASE - GROUP IPS shall not be responsible for or have control over construction means, methods, techniques, sequences, or procedures; or for safety precautions and programs in connection with the Project, nor shall GROUP IPS be responsible for any construction contractor’s or subcontractor’s failure to carry out the work in accordance with the client’s plans, specifications or agreements with such contractors or subcontractors, or for their failure to comply with applicable laws, ordinances, rules, or regulations. GROUP IPS shall not be bound by any term or obligation contained in any "General Condition" or other construction bidding documents unless expressly consented to by GROUP IPS in writing. Should the Client not authorize GROUP IPS to perform full-time site construction observation or review of any contractor's work and performance, Client agrees to defend, indemnify and hold harmless GROUP IPS from any and all claims and suits, including reimbursement of attorney's fees and related cost of defense, arising from or relating to any and all claims and suits arising out of or relating in any way to a purported performance of construction observation or contractor review by GROUP IPS.
6. INSURANCE - GROUP IPS will maintain the following insurance for each Project, including but not limited to Workmen's Compensation, automobile, bodily injury, property damage, and general liability, as well as professional liability insurance in the specific amounts listed in the Certificates of Insurance provided to Client by GROUP IPS. The Client shall maintain its own insurance in amounts reasonably sufficient for the Project unrelated to potential claims covered by GROUP IPS insurances.
7. ASSIGNMENT/THIRD PARTIES - Neither the Client nor GROUP IPS will assign or transfer its interest in this Agreement without the express written consent of the other. GROUP IPS, however, does reserve the right to subcontract any portion of the Services and to employ or retain independent consultants, associates and subcontractors to assist it in providing the Services. Nothing in this Agreement shall be construed as creating any rights, benefits, or causes of actions for any third party against either GROUP IPS or the Client.
8. SUSPENSION, TERMINATION, CANCELLATION, OR ABANDONMENT - In the event the Project identified in this Agreement is suspended, canceled, or abandoned by the Client thereby suspending, delaying, or terminating the services called for herein, GROUP IPS shall be given 60 days' prior written notice of such action and shall be compensated for the Services provided and reimbursable expenses incurred up to the date of suspension, cancellation, or abandonment including necessary and reasonable costs incurred thereafter. If the Client delays or suspends GROUP IPS's services for more than 90 working days, then GROUP IPS may terminate this Agreement upon giving seven days' written notice, or in the alternative at its sole discretion, GROUP IPS may elect to continue work on the Project, determine the impact of reinitializing the Project, and charge Client a lump sum remobilization and escalation of costs fee of between five percent (5%) and ten percent (10%) of the original Project Fee, or in the alternative a fee which is based on precise calculations in order to cover the costs of GROUP IPS following the suspension and in order to restore the economic balance of the Project. Either party may upon 90 days written notice terminate this agreement without cause. GROUP IPS shall be compensated for all Services up to the termination date as provided above.
9. STANDARD OF CARE - GROUP IPS agrees to perform services in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances. GROUP IPS makes no other warranties, expressed or implied, under this Agreement or otherwise, in connection with these Services.
19. DOCUMENT STORAGE – GROUP IPS central SharePoint project server is available for the project and all team members as well as the main contractors.
20. SAFETY RESPONSIBILITY - GROUP IPS is not responsible for any safety precautions or programs of the Client or any other entities working on the Project except for GROUP IPS's own employees.
21. RESPONSIBILITY OF GROUP IPS AS PROJECT MANAGEMENT COMPANY – GROUP IPS will work according to the Group-IPS methodology for project preparation and management. Our methods improve continuously in the light of our experience and thanks to the working principle of our technological center for project management. GROUP IPS has an obligation of means to assist the Client as its partner for the preparation, design and monitoring of the projects, and to provide the necessary resources to the Client as part of the project team. GROUP IPS will coordinate among the different parties involved in the project and will follow-up deadlines imposed upon any third parties providing services or supplying goods on site in the light of the project. Although GROUP IPS is not responsible for the actions or omissions of third parties on site, it will always reach for an amicable and constructive solution to every issue that might cause potential delay. In that respect, consultation with the Client is key. We will therefore share with the Client all necessary information and documents related to delays and/or errors caused by third parties, in order to safeguard the Client’s interests during the entire lifespan of the project and to make sure that issues leading to potential delays are tackled at an early stage and the focus of all parties involved remains on the realization of your project.
22. CONFIDENTIALITY - Each party shall hold as confidential any processes, methods, procedures, ideas, inventions, or computer information which is designated in writing by either party as confidential. These confidential item(s) shall not be disclosed to a third party without the prior written consent of the other party except where disclosure is required to complete the Services. GROUP IPS will not conduct patent searches or claims as to proprietary processes or information, and makes no representations that processes, materials, information, or equipment are free of such claims.
23. INDEMNIFICATION – Each party to the Project Agreement shall defend, indemnify and hold harmless the other party, its owners, agents, employees, officers, directors, successors and permitted assigns from any and all claims, losses, damages, liability, and costs, including legal fees, incurred by or claimed by or against the party seeking indemnification regarding any claim that is attributable to bodily injury, sickness, disease or death, or destruction or damage to tangible property, including loss of use, and/or liability caused by the indemnifying party’s wrongful and/or negligent acts.
24. CONSEQUENTIAL DAMAGES – Neither party shall not be liable for any damages, compensation or claim of any kind whatsoever for inconvenience, or annoyance, or any other claim for direct, indirect or consequential damages (including, amongst others, loss of business or profit, loss of margin, rise of general costs, financial loss, business interruption, reputational damage and damage to (property of) third parties and/or third party claims) arising from the party's performance or lack of performance of the Services under the Project Agreement whether caused by the party's errors, omissions, negligence, strict liability, breach of warranty or contract, or performance of Services, and this to the fullest extent permitted by law.
25. LIMITATION OF LIABILITY – The overall liability of Groups IPS and/or its affiliates shall be limited to 100% of the fees received by Group IPS and/or its affiliates from the Client for the Services. All claims, including negligence shall be deemed waived unless made in writing within one (1) year after completion of Services, which one (1) year period shall commence upon the issuance of a final GROUP IPS invoice for the Services to the Client. Neither GROUP IPS, nor its principals, agents, subcontractors, or employees, makes any express or implied warranties with regard to any of the Services, nor shall any of the foregoing have any personal liability for any damages arising out of or relating to this Agreement.
26. FORCE MAJEURE - Neither party shall be liable for any damages resulting from any delay or failure to perform its obligations due to events of Force Majeure, including, but not limited to acts of god, fire, explosion, natural disasters, earthquake, hurricane, storm or other weather conditions, labor disputes, unavailability, shortage or unreasonable price increase of power, transportation, materials or energy sources, wars, civil disorders, riot, pandemic, epidemic, disease, quarantine measures or acts of government or governmental authorities. Any such circumstances that a party knows at the date of acceptance of the quotation cannot be considered as an event giving rise to Force Majeure for that party. Internal strikes do not constitute as a Force Majeure event. Notwithstanding the foregoing, Force Majeure does in no event excuse the delay of payment or non-payment of money to the other party when due. Upon the occurrence of any event of Force Majeure, the party affected by the event of Force Majeure shall promptly notify the other Party thereto in writing of such event and shall specify in reasonable detail the facts constituting such event of Force Majeure. In the event of an occurrence of a Force Majeure event, Parties will make all reasonable efforts to mitigate the effects of the force majeure and the time for performance under this quotation shall be extended for any period reasonably necessary due to such occurrence during which the quotation will remain in full force and effect, provided that where the Force Majeure event continues for greater than sixty (60) days, each of the parties shall be entitled to terminate the agreement. Any and all of the obligations of the parties to each other preceding the occurrence of a Force Majeure event, shall continue to be enforceable in spite of such Force Majeure event.
27. NON-SOLICITATION As of the acceptance of the quotation and ending one year following the termination of the services of Group IPS and/or its affiliated companies, Client shall not directly or indirectly; (i) solicit or encourage any person to leave the employment or other service of Group-IPS and/or its affiliated companies; or (ii) hire any person who has left the employment within the one year period following the termination of that person’s employment with Group-IPS and/or one of its affiliated companies. Every breach of this clause by or on behalf of the Client gives rise to a lump sum penalty of 100.000 EUR, notwithstanding the right of Group-IPS to claim compensation for the actual damages resulting out of such breach. 10. WAIVER - Any failure by GROUP IPS to require strict compliance with any provision of this Agreement shall not be construed as a waiver of such provision, and GROUP IPS subsequently may require strict compliance at any time, notwithstanding any prior failure to do so.
11. RELATIONSHIP - GROUP IPS is an independent contractor to the Client in performing its Services under this Agreement and is not an employee, agent, joint-venture, or partner of the Client.
12. CLIENT RESPONSIBILITIES - The Client shall provide GROUP IPS in a timely manner all pertinent data, criteria, and information for the Project, including but not limited to design objectives and constraints, space and use requirements, operational information known to the Client or in possession of the Client, or as otherwise requested by GROUP IPS. GROUP IPS shall be entitled to rely on any and all information provided pursuant to this provision. The Client shall review GROUP IPS's work thoroughly and promptly and provide direction as necessary.
If the Client at any time becomes aware of any defect in the work or services provided, Client shall give notice of such defect. The Client shall, 14 days after receiving notice of any defect in work or service, notify GROUP IPS in writing of the defect and provide any costs associated with such defect. The Client waives any right to set off or recovery of costs associated with any defective work or service unless the Client strictly complies with this provision and provides written notice as required herein. The Client shall be responsible for payment of any governmental or other similar fees associated with permits or plan review. The client shall provide access to the site where the Project is located at no cost to GROUP IPS at all reasonable times to enable GROUP IPS to complete the Services. The client shall also permit GROUP IPS to erect, at a prominent location on the site of the Project, at GROUP IPS's cost and expense, such signs as GROUP IPS shall provide, identifying GROUP IPS as providing Services to the Client for the Project.
13. PROJECT CLOSURE – before reaching project closure, a punch list is developed by GROUP IPS and followed-up until all A items (which should be considered critical) are cleared by contractors. After that, provisional acceptance will be communicated to contractor, in which case Punch list handover will be done to Client as a release of responsibility for IPS.
14 WORKING HOURS AND HOLIDAYS – Normal working hours will be considered e.g., from 8 to 5 PM from Monday to Friday, notwithstanding Group IPS’ right to have its employees work outside these hours if required for the completion of the project. Extra hours from Monday to Friday are invoiced at 125% for day shifts and 150% for night shifts; extra hours on Saturdays are invoiced at 150% for day shifts and 175% for night shifts; extra hours on Sundays and bank holidays are invoiced at 200% for day shifts and 225% for night shifts. A project engineer is available without interruption during all the project lifetime, apart from normal day offs or weekends. In case long travelling is needed to reach the project location and no lodging is foreseen, travelling to the site will be considered during working hours, extra time compensation will be performed by IPS employees during the week and departure will also happen during working hours on Friday. GROUP IPS employees Longer periods of days off (e.g., holidays of more than 3 days) will be notified in advance to the client.
15 PRICE REVISION – Unless otherwise agreed in writing, the price list of Group IPS is only valid for a given calendar year. Groups IPS has the option to revise its prices each calendar year and will apply its revised prices for all work performed as from 1 January of that year. Group IPS will inform the Client in writing when it changes its price list.
16. MARKETING – Group IPS is allowed to mention the name of the Client and use its logo and to describe the Services performed to the Client for marketing purposes and reference sheets.
17. OWNERSHIP/REUSE OF DOCUMENTS - All plans, drawings, and other documents prepared by GROUP IPS as part of this Agreement are the property of GROUP IPS and are intended only for use on the Project. Reuse of documents for extensions of the Project or different projects will be at the Client's sole risk and without any liability to GROUP IPS. The Client shall have the right to retain copies, including reproducible copies, of documents for information and reference regarding use and occupancy of Project. GROUP IPS is the author and owner of the documents prepared for the Project and shall retain all common law, statutory and other reserved rights, including the copyright. The Client shall indemnify and hold GROUP IPS, its officers, partners, employees, agents, and lower-tier consultants harmless from all claims, damages, losses, and expenses including reasonable attorneys' fees and costs of defense arising out of or resulting from the use of the documents prepared by GROUP IPS for the extension of the Projects or different Projects or Paragraph 13.
18. ELECTRONIC/CADD DOCUMENTS - GROUP IPS uses the following software tools, Autodesk Suite, AutoCAD, CADWORK, PDMS, PLANT 3D, AutoCad, REVIT, PV ELITE, CAESAR II, CATIA/ Solidworks, ROBOBAT, TEKLA, HYSYS, CANECO HT/ BT/ ETAP/ DIALUX, HTRI, HAP AND PLS-CADD. IPS engineers and project assistants are all equipped with portable computers with all standard IPS software (MS Office Pro, MS-Projects and Draftsight) and can be reached by e-mail and mobile phone.
IPS Designers are all equipped with complete CAD workstations (VectorWorks and AutoCAD). GROUP IPS shall not be required to provide or deliver electronic or computer-aided design and drafting (CADD) files, unless specifically required by the Scope of Services described in Section 2, or Attachment A of this Agreement. Due to the easily alterable nature of electronic files, GROUP IPS makes no warranties, either express or implied, with respect to the accuracy, completeness, merchantability, or fitness for any particular purpose, including, but not limited to, performance of electronic files in cost estimating, quantity calculating, survey layout, or other software used by the Client or consultant or contractor. If electronic or CADD files are provided or delivered, such files shall be developed based on GROUP IPS's standard formatting, layering, drafting and design practice, unless specifically directed otherwise by the Client prior to execution of this Agreement. The Client shall not make or permit to be made any copies or any modification to electronic media, plans, and specifications without the prior written authorization of GROUP IPS. GROUP IPS shall not be liable in the event that erroneous information is supplied by the Client or a third party, and
GROUP IPS subsequently relies upon and incorporates that misinformation into an electronic file, plans, specifications, or other documents.
28. SEVERABILITY - If any term or provision of these Conditions is finally held to be invalid, illegal, or unenforceable, (i) the remaining terms and provisions of these Conditions shall be unimpaired, and (ii) the invalid, illegal, or unenforceable term or provision shall be deemed replaced by a term or provision that is legal, valid, and enforceable and that comes closest to expressing the intention of the illegal, invalid, or unenforceable term or provision.
29. ENTIRETY OF AGREEMENT - These terms and conditions, any drawings, plans, plats, and/or exhibits attached hereto, and the Project Agreement to which these items are attached, set forth the entire understanding and agreement between the parties with respect to the Project and shall be binding upon and inure (except as otherwise provided herein) to the benefit of the parties and their respective successors and permitted assigns. This agreement supersedes all prior documents, agreements, and understandings between the parties with respect to the terms and conditions set forth herein.
The application of any contractual document or terms & conditions of the Client is expressly excluded, even if the Client would have sent it to Group IPS.
30. CHOICE OF LAW AND FORUM - This Agreement shall be governed by the laws of the country where the services are performed and solely the courts of the place of performance of the services shall have jurisdiction.