CertiPHIers Cooperative Terms & Conditions of Service effective November 24, 2015
These Terms & Conditions of Service (“Terms and Conditions”) apply to all services provided by CertiPHIers Cooperative and are incorporated by this reference in CertiPHIers’ invoice(s). Customers are deemed to agree to them when paying invoices. Together with CertiPHIers’ website description of our services (or any CertiPHIers’ written certification proposal referenced in the invoices), these Terms and Conditions collectively constitute the parties’ Agreement effective when CertiPHIers receives payment.
I. SERVICES
a. Services. CertiPHIers shall provide Passive House Institute (PHI)-accredited building certification described in its invoice (and any written proposal it references) and related services requested by Customer.
b. Customer’s Duty. Customer will consult with and advise CertiPHIers on all matters in a reasonable manner necessary to complete certification. Customer is responsible for providing information and making decisions in a timely manner.
c. Scope of Certification Services. CertiPHIers’ services do not include design, architecture, engineering, construction, any construction services (MEP, HVAC, or any other construction advice), construction management, zoning, building codes, or advice about moisture management, building durability, ventilation, indoor air quality, or renewable energy.
d. Standard of Care; Disclaimer of Warranties
i. CertiPHIers will devote such time and attention to performing the certification as is reasonably necessary. What is reasonable is not determined by reference to what is usual, customary, and/or standard by other PHI-accredited Certifiers, but rather what CertiPHIers in its sole discretion deems reasonable to meet PHI’s requirements. For example, other Certifiers may create a 3D model of the building and/or a new PHPP. Certifiers will not.
ii. Otherwise, CertiPHIers makes no representations as to its services and disclaims all warranties with respect to its services, express and implied, including but not limited to the warranty of merchantability and the warranty of fitness for a particular purpose except to the extent applicable law prohibits it from disclaiming implied warranties.
e. Payment. Unless CertiPHIers agrees otherwise in advance in writing, compensation is due and payable in advance of CertiPHIers performing the requested services. For services charged by the hour, CertiPHIers shall advise Customer in advance of the amount of time CertiPHIers shall bill to perform discrete tasks and obtain Customer’s pre-approval to provide those services before performing them. Customer shall pay invoices within thirty (30) days.
f. Compensation & Benefits. The Customer will not provide any other benefits to CertiPHIers.
II. RELATIONSHIP
a. Independent Contractor. CertiPHIers is an independent contractor, not Customer’s employee. CertiPHIers will be free from direction and control over the means and manner of providing the certification services, subject only to the right of the Customer to specify the desired results which is PHI-accredited building certification review (and approval or denial depending on reviewing the building against PHI’s applicable criteria). CertiPHIers will furnish all tools or equipment necessary for performance of the services. No joint venture, partnership, or agency relationship will be created between CertiPHIers and Customer.
b. Taxes. The Customer will not withhold any income taxes from any payments made to CertiPHIers, and CertiPHIers will be solely responsible for paying all income taxes.
III. GENERAL
a. Amendment. The parties may amend this Agreement only by both signing a written document expressly amending this Agreement.
b. No Assignment or Third-Party Beneficiaries. Neither party may assign or delegate any of CertiPHIers’ rights or obligations under this Agreement to any person without its prior written consent. The parties do not intend to confer any right or remedy on any third party. CertiPHIers has no relationship with or duty to any person using, occupying, entering, or owning an interest in the building other than with Customer. And that duty is limited to performing the services specified in and according to this Agreement.
c. Indemnification and Defense of Claims. If Customer has retained CertiPHIers’ services on behalf of the building owner, then Customer shall indemnify and defend CertiPHIers in any claim or action by the building owner.
d. Limitation of Liabilities; Limited Remedies. The parties disclaim the right to recover their attorney’s fees or any direct, indirect, incidental, special, consequential, exemplary, or punitive damages, including but not limited to damages for loss of profits, goodwill, use, data, or other intangible losses arising out of or in connection with CertiPHIers’ services however arising including but not limited to negligence. There shall be no award of prevailing party’s attorney’s fees. CertiPHIers’s aggregate liability to Customer for any reason or causes of action, whether in contract, tort, or otherwise, will not exceed the compensation Customer paid for services. CertiPHIers’s price for its services is lower than the market price for similar services, and this savings is consideration for Customer agreeing to this limit. Some jurisdictions do not allow the exclusion or limitation of certain warranties or of incidental or consequential damages. Thus, some of the limitations in this Agreement may not apply.
e. Limited Time to Make Claim. You agree that regardless of any statute or law to the contrary, you must file any claim or cause of action arising out of or related to CertiPHIers’ services or this Agreement within one (1) year after your claim or cause of action arose or be forever barred and legally prevented from pursuing your claim or cause of action.
f. Dispute Resolution by Arbitration Services of Portland. The parties will attempt in good faith to resolve through negotiation any dispute, claim or controversy arising out of or relating to this Agreement. Failing such resolution, any dispute or claim that arises out of or that relates to this agreement, or to the interpretation or breach thereof, or to the existence, validity, or scope of this agreement or the arbitration agreement, shall be resolved by arbitration in accordance with the then effective arbitration rules of (and by filing a claim with) Arbitration Service of Portland, Inc., and judgment upon the award rendered pursuant to such arbitration may be entered in any court having jurisdiction thereof.
g. Notice; Waiver. By agreeing to this Agreement you have agreed that all disputes, claims or controversies arising out of or relating to this Agreement will be decided by negotiation and/or neutral arbitration, and you are giving up any rights you might possess to have those matters litigated in a court or jury trial. Also, by agreeing to this Agreement you are giving up your judicial rights to discovery and appeal except to the extent that they are specifically provided for under this Agreement. If you refuse to submit to arbitration after agreeing to this provision, you may be compelled to arbitrate under federal or state law. Your agreement to this arbitration provision is voluntary.
h. Entire Agreement. This Agreement is the entire understanding of the parties regarding the subject matter of this Agreement and supersedes all prior and contemporaneous negotiations and agreements, whether written or oral, between the parties with respect to the subject matter of this Agreement.
i. Survival. All provisions of this Agreement that would reasonably be expected to survive the termination of this Agreement will do so.
