Client has engaged IndoorDoctor, LLC (“IndoorDoctor”) to provide equipment and assessment and virtual consulting services in connection with the Client’s testing of areas of its property identified by the Client as areas of concern (“Target Areas”). This assessment is not a Building Code Inspection, title examination, home assessment, or a by-law compliance inspection. The defined sampling is not a guarantee that the contaminants of concern or any other contaminants do or do not exist at the property, whether in the Target Areas or otherwise.
1. Scope of Services.
IndoorDoctor will remotely assist Client in conducting an environmental assessment of the Target Areas, as identified by Client. IndoorDoctor will provide Client with equipment (the “Equipment”) to take a sampling of the Target Area, and up to 30 minutes of real time virtual support to ensure proper sampling and provide guidance with regard to environmental concerns. Upon receipt of the samples and return of the Equipment in satisfactory condition, IndoorDoctor will send (or arrange for the sending of) Client’s samples to an independent and certified laboratory to perform tests on the samples collected by Client, and provide Client with a written explanation of the results and up to 15 minutes of real time virtual consultation to discuss the results and recommendations for corrective actions if necessary. As an additional service at Client’s option, IndoorDoctor will tailor appropriate action steps in response to the test results to address Client’s goals using industry standard engineering principles.
2. Items Excluded From Services.
The following are expressly excluded from services under this Master Services Agreement (this “Agreement”): (1) services related to observation or monitoring of the remediation contractor measures for compliance with the Client’s proposed remediation protocol, unless agreed upon as an additional service; (2) services concerning inaccessible spaces within the Target Areas; (3) structural engineering evaluation of the property, including issues caused by water or moisture damage, fire, soot, spray foam or deferred maintenance; (4) testing or sampling for substances not specifically identified in the order form; and (5) estimates of the cost of the work to be performed by others.
3. Health Conditions
IndoorDoctor does not imply or guarantee that the services provided under this Agreement will reduce or eliminate any symptoms related to, or believed or suspected to be related to, toxins and/or contaminants, including but not limited to symptoms of allergies, asthma, respiratory conditions or any other health conditions. Client is advised to address any questions concerning health issues with a health care professional.
4. Acceptance of Risk
Client acknowledges that there is potential for health risks involved in collecting environmental samples and that Client engages in such activities at its own risk. IndoorDoctor recommends that Client wear maximum protective equipment at all times, and Client shall take all reasonable precautions in regard to the use of the Equipment to protect all persons from injury. Client acknowledges that IndoorDoctor is not responsible or liable in any way for any injury or damage relating to the use of the Equipment or for any harm, including without limitation any injury, illness or death that may occur as a result of Client’s collection of environmental samples in connection with this Agreement. By signing below, Client agrees that it will not bring any actions or pursue any claims against IndoorDoctor in connection with any such harm or damage.
5. No Warranty
IndoorDoctor’s services under this agreement will not guarantee the presence or absence of toxins or contaminants on the subject property. It is understood and agreed that IndoorDoctor is not an insurer and that the assessment and report to be provided under this Agreement shall not be construed as a warranty of the absence of any toxins or contaminants on the subject property. Client also acknowledges that IndoorDoctor will offer guidance as to the proper methods for collecting samples but that IndoorDoctor is not responsible for any collection errors or for Client’s failure to correctly obtain samples.
Client must timely return the Equipment in the same condition as it was received. Client is responsible for any loss, damage, theft or destruction of the Equipment while in Client’s possession or for failure to timely return the Equipment, in each case whether or not Client is at fault. Client agrees to pay IndoorDoctor for any such costs upon notification from IndoorDoctor and, to the extent permitted by applicable law, Client authorizes IndoorDoctor to charge Client’s credit card for such losses, repair or replacement costs and to deduct any such amounts from any deposits provided by Client.
7. Laboratory Services
Client understands that IndoorDoctor does not perform any laboratory services and will submit samples to a laboratory on the Client’s behalf. Client understands and agrees that IndoorDoctor is not responsible for any errors, acts, or omissions made by the laboratory. Client agrees to hold IndoorDoctor harmless from any loss, claim, lawsuit, actions or other damages resulting from laboratory error.
8. Recommended Services
After assessment and review of the laboratory results, IndoorDoctor may recommend that certain work be performed at the subject property and may recommend certain vendors to perform this work. If Client chooses to hire a third-party vendor (a “Third-Party Vendor”) to perform such work, including, without limitation, upon IndoorDoctor’s recommendation, Client’s relationship is directly with such Third-Party Vendor. Client agrees that IndoorDoctor is not responsible for (a) the quality of the work or services provided by any Third-Party Vendors, or (b) fulfilling any of the terms of Client’s agreement with any Third-Party Vendors, including but not limited to, performance of work and warranty obligations related to such work. Client agrees that IndoorDoctor is not responsible for any loss or damage of any sort Client may incur from retaining or dealing with any Third-Party Vendors.
9. Limitation of Liability
Client’s sole and exclusive remedy from IndoorDoctor, for any reason, will be limited to, at IndoorDoctor’s option, (1) replacement or correction of any Equipment or services not in conformance with this Agreement, or (2) repayment of the portion of compensation paid by Client attributable to the nonconforming services. IN NO EVENT SHALL INDOORDOCTOR BE LIABLE TO CLIENT UNDER THIS AGREEMENT OR ANY ORDER FORM FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED WARRANTY, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, THIRD PARTY CLAIMS, OR ANY OTHER LEGAL THEORY.
10. Limitations Period
Any claims arising from this Agreement or from any assessments and/or reports performed under this Agreement, shall be commenced with one (1) year from the date of Client’s initial virtual consultation. Failure to bring such an action within this time period shall be a complete bar to any such action and a full and complete waiver of any rights or claims based thereon. This time limitation period may be shorter than provided by state law.
11. Additional Services
It is understood and agreed to by the parties hereto that all provisions, limitations, exceptions and exclusions of this agreement shall apply to any additional services entered into by the parties. Additional services include, but are not limited to, expedited shipping and processing, additional virtual consultations, additional environmental samplings and/or assessments, services at other locations, in-person visits, preparation for and attendance at legal proceedings, involvement in third party disputes, all travel time and expense, and additional laboratory tests. Additional services will be billed at IndoorDoctor’s standard hourly rate of $275/hour unless the parties agree otherwise in writing signed by both parties. Client agrees that the terms and conditions of this Agreement will apply to all future work performed on behalf of Client unless the parties agree otherwise in writing signed by both parties.
12. Documents, Remediation Reports and Data
All documents, including but not limited to assessment reports, remediation reports, and data generated by IndoorDoctor are IndoorDoctor’s intellectual property and work product intended for the sole use of Client only for the purpose(s) stated in this Agreement. Client shall not transfer, use or permit documents to be used as part of another project for a purpose for which they were not prepared, without IndoorDoctor’s express written consent. IndoorDoctor will not accept liability for any loss, injury, claim or damage arising directly or indirectly from any unauthorized use or reliance on such documents. Client agrees to defend, indemnify and hold harmless IndoorDoctor from and against any claims, demands, damages, losses, costs, expenses (including attorneys’ fees), fines, or penalties arising out of, related to, or because of, or alleged to arise out of, related to, or be a consequence of any unauthorized use or reliance on such documents.
13. Third Party Reliance
Nothing contained in this Agreement shall be construed as giving, nor is intended to give, any rights or benefits to any person or entity, other than Client and IndoorDoctor. All duties and responsibilities set forth and/or undertaken pursuant to this Agreement are for the sole and exclusive benefit of Client and IndoorDoctor, and for no other person or entity.
14. Payment and Collection
Any payment that is not made at time of initial engagement is due at the time of the performance of the services or otherwise upon notice to Client, unless IndoorDoctor or its agent agrees to a different payment arrangement. A late fee of 18% will be assessed if payment is not made within fourteen (14) days of the due date. Interest will accrue at the maximum rate allowed by law starting thirty (30) days after the due date, and will continue to accrue until the entire balance is paid. In the event that any portion of the services is cancelled or modified, IndoorDoctor shall immediately be paid for any services performed. Client will reimburse IndoorDoctor for costs and expenses, including reasonable attorneys’ fees and costs, incurred in collection of amounts due under this Agreement.
15. Default by Client / Bankruptcy
In the event that Client does not perform its obligations and does not correct default within ten (10) days of written notice by IndoorDoctor, or Client files for bankruptcy or makes an assignment for the benefit of its creditors, then IndoorDoctor may cease work and treat this Agreement as repudiated. In such an event, an accounting shall be made and IndoorDoctor shall be entitled to payment for all work completed at the time of default.
16. Force Majeure / Acts of God
IndoorDoctor shall not be responsible for any delay or failure of performance caused by fire or other casualty, labor dispute, government or military action, terrorism, transportation delay, inclement weather, Act of God, epidemics, or any other cause beyond IndoorDoctor’s reasonable control.
17. Alternative Dispute Resolution
Any disputes, controversies, or claims between the Client and IndoorDoctor relating to or arising out of any of the terms of this Agreement, except for disputes pursuant to Section 14 which may be brought in small claims court, shall be subject to mediation between the parties as a condition precedent to any legal action.
18. Governing Law
This Agreement shall be construed and interpreted in accordance with the laws of New Hampshire, without regard to the principles of conflicts of law. The Client agrees to the jurisdiction of the New Hampshire courts to enforce any dispute in connection with this Agreement.
19. Waiver of Jury Trial
EACH PARTY HERETO, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY, WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Client represents and warrants that it has the authority to contract for the services described in this Agreement. Client agrees to defend, indemnify and hold IndoorDoctor harmless from any and all claims, demands, damages, losses, costs, expenses (including attorneys’ fees), fines, or penalties arising out of, related to, or as a consequence of, or alleged to arise out of, related to, or be a consequence of the assessment and testing of the subject property or the other services performed by IndoorDoctor or its affiliates or contractors, including, without limitation, any damage to the subject property or any disease or bodily harm to Client or others.
21. Entire Agreement
This Agreement represents the entire understanding between the parties relating to the services provided by IndoorDoctor. This Agreement supersedes any and all prior agreements, whether written or oral, that may exist between the parties regarding same. No other terms or conditions shall be effective unless in writing and signed by both parties. No statement or promise by IndoorDoctor or its agents shall be binding unless reduced to writing and signed by an agent of IndoorDoctor. This Agreement shall be binding upon and inure to the parties hereto and their respective spouses, heirs, executors, administrators, successors, assigns and representatives of any kind whatsoever. A failure of either party to exercise any rights provided for herein shall not be deemed to be a waiver of any right hereunder. If any provision of this Agreement is found invalid or unenforceable, the balance of the Agreement, and all provisions thereof, shall remain in full force and effect.