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�Apex geoscience, inc.
<br />GENERAL CONDITIONS
<br />l. DEFINITIONS AND SCOPE OF WORK: "Apex" when used herein means Apex Geoscience, Ina.
<br />"Work" means Ihe specific engineering desigq geotechnical, envitonmen[al or o[her service(s) to be
<br />performed by Apex for client as expressly defined in Apex's proposal or work order, which scope may be
<br />modified in e�riting by mu[ual agreement of [he parties from [ime to lime. "Agreement" means Apex's
<br />proposal or work order, Apex's Schedule of Fees, clienPs wri[[en acceptance [hereof and [hese Generzl
<br />Conditions. "Client" means the person or business en[iry ordering the Work to be done by Apex. If Client is
<br />ordering W ork on behalf of another, Client represents and warrants that Client is the duly authorized agent of
<br />such third pany for the puryose of ordering and direc[ing said Work. Client will remain a guarantor of
<br />payment for such third party and in such caze. Client assumes sole responsibility for determining whether ihe
<br />quantity and the nature of the Work ordered by Client are adequate and sufficient for C1ienPs intended
<br />purpose. Client assumes the risk and agrces [o indemnify Apex from all [hird-party liabili[ies rela[ive [o Client
<br />[ransmitting any part of Apex's Work [o third parties or such Ihird parties reliance on [he Work.
<br />2. RESPONSIBILITY: Work shall not indude determining supervisine or implementing the means,
<br />methods, [echniques, sequences or procedures of manufacturing or construction, nor evaluating, reporting or
<br />affecting job conditions conceming health, safety or welfare, unless specifically required in the scope of
<br />Work. Apex's Work, or failure to perfortn same, shall not in any way impose any liabilily upon Apex for
<br />Clfenf s, or any of its contractors, subcontractors or suppliers, improper performance or failure to perFottn
<br />under any other con[rac[ual artangement.
<br />3. OWNERSHIP OF DOCUMENTS: All documents including drawings, reports and specifications
<br />prepared or fumished by Apex, or its employees, independent professional associates or consultants is and
<br />shall remain ihe property of Apex. Any reuse or use by others without the written consent of Apex is
<br />prohibited.
<br />4. OPINIONS OF COST: In the event that Apex provides opinions of projeaed costs for construction or
<br />em-ironmental remediation services ofothers, Apex cannot and does not guarantee such projected costs. Such
<br />opinions of projected cost are merely estimates and acmal costs may vary; in that Apex has no control over the
<br />wst of labor, ma[erials, equipment or sen•ices fumished by others or over the conhactor(s)' me[hods of
<br />de[ertninine priees or performing work, or over competi[ive bidding or marke[ conditions.
<br />5. HAZARDOUS MATERIALS: In the event Apex's Work specifically indudes visual obseR-ation.
<br />labora[ory analyses or physical testing of samples of subsurface and other materials for the purpose o(
<br />de�ec[ioq quanlifica[ion or identiFcation of the exten[, if any, of contamina[ion of subsudace soils or ground
<br />water by "hazardous materials", being those materials defined as such by RCRA, CERCLA or within any
<br />Federel or State statute or regulatioq nothing contained in this AS�reement shall be consweA or intefpreted as
<br />requiring Apez to assume [he sU[us of an owner, opern[or, genea[or, storer, hansporter, treater or disposal
<br />facili�y as those tetms appear within RCRA, CERCLA or within any Federal or State sta[u[e or regula[ion
<br />goveming [he genera[ioq handling, transport, treatment, srorage and disposal of hazardous ma[erials. Clien�
<br />assumes full responsibiliry (or compliance wi[h [he proaisions ofRCRA, CERCLA and any o[her Federal or
<br />State s[a[ute or regWa[ion goveming [he handling, heatment, s�oage and disposal of hazardo�s ma[erials.
<br />6.SCHEDOLINGOFN'ORK: ApezwillendeavortoaccomplishtheWorkina[imelymanner.IfApexis
<br />required [o delay any part o( its Work [o accommoda[e Ihe requests or requirements of Clien[, regula[ory
<br />agencies orthird parties, or due ro any causes beyond [he direct reasonablecontrol ofApex, additional charl;es
<br />may apply, �vhich Client aerees to pay.
<br />7.SITEACCESS,RESTORATIONANDDUTYTONOTIFY: Clientwillarrangeandprovideaccessto
<br />each si[e upon which Apex is ro perfortn Work. In [he eren[ Work is required on any site not owned by Clien�.
<br />Client represents and warrants [o Apex [hat Clien[ has ob[ained all necessary permissions for Apex [o en[er
<br />upon [he site and conduc[ its W ork Client shall, upon request, provide Apex with evidence of such permission
<br />as well as aceeptanee oC tUe other tcmms and conditions set forth herein by the owneds) and renant(s), if
<br />applicable, o( such site(s) in a form aceeptable to Apex. Any Work perFortned by Apex on the property of
<br />others shall be deemed as being done on behal(of Client and Client agrees to assume all risks thereof. Apex
<br />shall [ake reasonable meuures and precautions [o minimize damage to each site and any improvements
<br />located thereon as the result of the Work; however, any cos[s related to restoration of damage which may
<br />occur is not included in Apex's pnce of W ork. If Client or the possessor of any interest in any site desires Ihat
<br />Apex restore the si[e ro iLS fonner conditioq upon written reques[ of Client and after am'eemen[ of Apex.
<br />Apex will perfortn such additional work as is necessary and Clien[ shall pay Apex all costs forsuch work plus
<br />mark-up for ovefiead and profit Apex is under no obligation to inform other parties of its activities or
<br />diswveries, and Client recognizes that knowledge ofsuspected or actual conditions at the sitemayresuit in a
<br />reduction in a properly's value and may provide incentive to owners of properties affected [o initiare legal
<br />action against Client and/orothers. Client hereby releases Apex from anyliability relativeto such occurrences
<br />and shall defend, indemnify and hold Ape� hartnless from any and all claims, losses or damages related
<br />therero.
<br />8. CLIENT'S DUTY TO NOTIFY APEX: Client represents and warrants that he has advised Apex ofany
<br />known or suspected hazardous materials, utility lines, underground or overhead s[ruc[ures, and pollu[an[s at
<br />any site a� which Apex is to do Work, and excep[ [o [he ez[ent Apex has ageed in wri[ing [o assume Ihe
<br />responsibility for locating subsudace objecLS, stmctures, lines or conduits, CLIEN'C AGREES TO RELEASE,
<br />DEFEND, INDEMNIFY AND HOLD APEX HARMLESS FROM ALL CLAIMS, SUITS, LOSSES,
<br />DAMAGES COSTS AND EXPENSES, INCLUDP]G REASONABLE ATCORNEYS' FEES
<br />('DAMAGES") AS A RESULT OF PERSONAL IN1URY, DEATH OR PROPERTY DAMAGE
<br />RESULTING FROM OR CAUSED BY CONTACT WITH SUBSURFACE OR LATENT OBJECTS.
<br />STRUCTURES, LINES OR CONDUITS EXCEPT TO THE EXTENT SUCH DAMAGES SHOWN TO
<br />HAVE BEEN CAUSED BY APEX'S NEGLIGENCE.
<br />9. LIMITATIONS OF PROCEDURES, EQUIPMENT AND TESTS: Certain information may be
<br />obtained by observa[ion, analysis and tes[ing of sample materials and may be reported on boring logs or other
<br />res[ reports. Such information may be evidencewi[h respect ro[he detec[ioq quan[ifiea[ion and identification
<br />of pollutants, but any inference or condusion based [hereon is merely an opinion and shall no[ be consWed as
<br />a representation of fact Grou�dwa[er levels and composi[ion may vary due ro seasonal and clima[ic changes
<br />and extrinsic condi[ions and, even when sarnpling and testing are wndueted over an ex[ended period of time,
<br />pollutan[s wntained [herein may escape detec[ion. A si[e at which pollulants are no[ found [o exis[ or a[ [he
<br />time of inspection do not in fact ezist, may la[er, due m intervening causes such as na[ural 7,nound water flows
<br />or human interventioq become contaminated. There is a risk that sampling techniques may themselves result
<br />in wn[amination of certain subsurFace areas such as when a probe or boring device moves through a
<br />con[aminated area linking it [o an aquifer. underyround sheam or o[her hydrous body not previously
<br />con[amina[ed. Because [he risks set forth in this paragraph may be unavoidable and because [he sampling
<br />cechniques to be employed are a necessary aspect ofApex's Work on ClienPs behalf, Client agrees to assume
<br />these risks and hereby releues Apex from any liability rela[ive to same.
<br />lO.DISCOVERYOFUNANTICIPATEDPOLLUTANTS: ThediscoveryofcertainpollutanLSmaymake
<br />i[ necessary for Apex to take immediate measures �o protec[ heal[h and safety. Clien[ ab�ees [o reimburse
<br />Apex for alI ezpenses of implementing such measures. Apex a� ees to notifyClient should such pollutants be
<br />suspected or discovered.
<br />11. SOIL AND SAMPLE DISPOSAL: Unless othe�vise agreed in writing, soils known at the time ro be
<br />contaminated will be placed in containers, labeled and left on the site for proper disposition by Client.
<br />12. WARRANTY: Apex's will perform its Work in accordance wi[h this Agreement and with that degree of
<br />care and skill ordinarily exercised under similar circumstances by members of ils profession in [he
<br />community. If during the one (1) year period following wmple[ion of [he Work, i� is shown that those
<br />standards have no[ been meY, and Clien[ has promptly no[ified Apex in writing of such failure, Apex shall
<br />perform, at its expense, such co�rective services as may be necessary within the original scope of the Work to
<br />remedy such deficiency. ALL WARRANTIES OF ANY NATURB MADE BY APEX IN CONNECTION
<br />WITH THE WORK ARE LIMIrED TO THOSE SE7' FOR7'H IN THIS ARTICLE 12 APEX DISCLAIMS
<br />ALL STATUTORY. ORAL, EXPRESSED OR IMPLIED WARRANTIES, WCLUDING WARRANTIES
<br />OF MERCHANTAB[LITY OR FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES
<br />ARISWG FROM COURSE OF DEALING OR TRADE USAGE.
<br />13. TNDEMNITY AND LIABILITY: Subject ro the limitations provided in [his Agree�nent, Apez ab�rees ro
<br />indemnify and hold Client hazmless from and against any and all daims, suits, costs and expenses induding
<br />reasonable attomey's fees and court costs arising out of [he Work to Ihe ex[ent caused by Ihe negligence of
<br />Apex. Likewise, Client agrees ro indemnify and hold Apex harmless Rom and against any and all claims,
<br />suits, costs and expenses including reasonable attomey's fees and court costs arising out of [he Work and ro
<br />the extent caused by the negligence of Client.
<br />APEX'S CUMULATIVE LIABILITY ARISING OUT OF OR IN ANY MANNER RELATED TO [TS
<br />PERFORMANCE OF THE WORK UNDER THIS AGREEMENT SHALL NOT EXCEED $25,000.00 OR
<br />THE TOTAL AMOUNT OF 200%OF THE AMOUNTS PAID TO APEX FOR THE W ORK PERFORMED
<br />HEREUNDER, WHICHEVER AMOUNT [S LESS. APEX SHALL NOi BE RESPONSIBLE OR HELD
<br />LIABLE FOR ANY PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR
<br />LIABIL[TY FOR LOSS OF USE OF ANY EXISTING PROPERTY, LOSS OF PROFITS, LOSS OF
<br />PRODUCi' OR BUSINESS INTERRUPT[ON. CLIENT HEREBY RELEASES APEX FROM ANY
<br />LIABILITY IN EXCESS OF THAT PROVIDED IN THIS PARAGRAPH, HO WEV ER THE SAME MAY
<br />AR1SE WHETHER IN CONTRACT, TORT, STATUTE, EQUITY OR OTHER THEORY OF LAW
<br />(INCLUDING, BUT NOT LIMITED TO, THE BREACH OF ANY LEGAL DUTY OR THE FAULT,
<br />NEGLIGENCE OR STRICT LIABQ.ITY OF APEX) AND THIS PARAGRAPH APPL�S
<br />NOTWRHSTANDING ANY'['HP]G TO THE CONTRARY IJNDER TH1S AGREEMENT THE
<br />REMEDIES PROVIDED CLIENT UNDER THIS AGREEMENT ARE EXCLUSNE AND ARE IN LIEU
<br />OF ALL Oi'HER REMEDIES WHICH MAY BE OR BECOME AVAILABLE AT LA W OR IN EQUITY.
<br />14. PAYMENT: Clien[ shall be invoiced periodically for Work performed during �he preceding period.
<br />Client agrees to pay each invoice within thirty (30) days of the invoice date. Client further agrees to pay
<br />interest on all amounts invoiced and not paid within said thirty (30) day period at the maximum interest rate
<br />pertnitted under applicable law, until paid, excep[ [o the extent such invoice is objected to for valid cause in
<br />w-riting. Client agrees to pay Apex's cost of collec[ion of all amounts due and unpaid aRer sixty (60) days,
<br />including court cos[s and reasonable a[tomey's fees. Apex shall no[ be bound by any provision or agreement
<br />conditioning Apex's righ[ [o receive paymen[ for its Work upon paymen[ to Clien[ by any [hird party.
<br />15.TERMINATION: ThisAgreementmaybeterminatedbyeitherpartyuponthirty(30)daysprionvritten
<br />notice. In the even[ of termina[ioq Apex shall be compensa[ed by Clien[ for all Work perfortned up to and
<br />including the tertnination date, including reimb�rsable expenses as per the Apex Rate Sched�le.
<br />16.�VITNESSFEES: Apex'semployeesshallnotberetainedasexpertwitnessesexceptbyseparate,written
<br />agreement. Clien[ agrees to pay Apex at a rate two times Apex's Ihen curten[ fee schedule for any Apez
<br />employee subpoenaed by any party as an occurrence witness as a result of Apex's Work.
<br />17.ENTIREACREEMENT,TITLESANDCONTROLLINGLAN': ThisAgrmnen[contains[herntire
<br />understanding behveen the par[ies and may be amended, modified or tertnina[ed only by a written instrumen[
<br />signed by both parties. In the event any of the provisions of these general conditions should be found to be
<br />unenforceable, it shall be s[ricken and [he remaining provisions shall be rnforceable. The titles or para�raph
<br />headings used in [his Agreement aze for genernl reference only, are no[ part oftheA¢�eemrnt, and shall not be
<br />construed as establishing or limiting the meaning of the provisions contained herein. The failure of either
<br />party here[o [o exercise or enforce any right under this Agreemen[ shall nol consti[ule a release or waiver of
<br />[he subsequen[ exercise or enforcemen[ of s�ch right This Agreement shall be subject [o [he law and
<br />jurisdiction of [he S[a[e of Texas, without applica[ion of principles of wnflic[s-of-laws. V enue shall be proper
<br />only in the courts of Smith Counry, Texas.
<br />1& CERTIFICATION STATEMENTS: Any "certification sta�emenf' as a resul� or conclusion of Apex's
<br />services, as may be requested by the Client or third parties for legal, loaq real estate and otherpuiposes, will
<br />be provided upon request, at additional chazge, at the sole disaetion of Apex. In providing such a
<br />"certificatiod', Apex will sta[e only what, in its professional opinioq is reasonably supported by available data
<br />and related analyses. When "certification statements" are provided by Apex, standardized language (if
<br />requested to be used by the Client, its agents or [hird parties) will be modified by Apex as necessary, at its sole
<br />discretion. Refusal by Apex [o use certain standardized language, words and phrases in "certifica[ion
<br />statements" shall neither constimte incomplete services by Apex, nor relieve Clienf of its obligation to
<br />compensa[e Apex in full for services provided hereunder.
<br />20. CONTINUITY OF SERVICES: Apex shall not be responsible for implementation of its geotechnical
<br />recommendations if not retained ro adequately field verify same during the conswction of the project, and
<br />Client hereby releases Apex from such liability EVEN IF SUCH LIABIl,TfI' ARISES FROM THE
<br />NEGLIGENCE OF APEX.
<br />�Apergeosciettce, inc —Februaq� 10/1
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