Drawing Package

TERMS OF AGREEMENT FOR DELIVERY OF DOCUMENTS IN ELECTRONIC FORM

In connection with the IBM CHQ Cooling Tower Replacement Project AutoCAD drawing files bearing HBA Project Number 1108934-5049 (hereinafter “Project”) for which Hill and Bell Associates, LLC (hereinafter “HBA”) had been retained to provide services to IBM as the Project Engineer and to provide contractors (hereinafter “Recipients:) with certain plans and files hereinafter “Instruments of Services” prepared by HBA or its sub consultants, in electronic machine readable format. These documents in such format shall hereinafter be referred to as the “Electronic Documents.”

As outlined below, and in consideration of HBA’s agreement to release Electronic Documents, the Recipients agree as follows:

1. It is understood and agreed that all drawings, specifications or other documents of any kind prepared by HBA or its sub consultants, whether in hard copy or any electronic or machine readable format, including Electronic Documents (collectively “HBA’s Documents”), are, and shall remain, instruments of their services. These Instruments of Services were prepared solely for use in connection with this Project. HBA and its sub consultants retain all common law, statutory and other reserved rights, including copyrights. This Agreement is not intended in any way to alter the respective interests of the parties in the Instruments of Services as set forth in any agreement for services between the Recipients and HBA, notwithstanding HBA’s agreement to release the Electronic Documents to the Recipients.

2. The Electronic Documents are provided as a convenience to the Recipients for informational purposes only in connection with the Recipients’ performance of their responsibilities and obligations relating to the Project. The Electronic Documents do not replace or supplement the paper copies of the Drawings and Specifications which are, and remain, the Contract Documents for the Project, or the paper copies of any other document prepared by HBA or its sub consultants.

3. The parties agree that the Electronic Documents are not, nor shall they be construed to be, a product.  It is expressly agreed by the Recipients that there are no warranties of any kind in such Electronic Documents, or in the media in which they are contained, either express or implied and HBA makes no representation or warranty regarding the accuracy, title, non-infringement, completeness, or permanence of the Electronic Documents, nor for their merchantability or fitness for a particular purpose.

4. It is further understood and agreed that no Electronic Documents shall be signed or sealed by Recipients.

5. If any differences exist between printed Instruments of Services and the Electronic Documents, the information contained in the printed documents shall be presumed to be correct and take precedence over the Electronic Documents.

6. The Recipients agree not to add to, modify or alter in any way, or to allow other to add to, modify or alter in any way, the Electronic Documents.

7. The Electronic Documents are supplied in the following format: dwg.  It is understood by the Recipients that the media in which any Electronic Documents are transmitted can deteriorate over time and under various conditions.  HBA is not responsible for such deterioration.  In addition, any conversion of the format is solely the responsibility of the Recipients.  The Recipients understand and agree that the conversion of paper copies of Instruments of Services into electronic or machine readable format, or the conversion of Electronic Documents from the machine readable format used by HBA to some other format may introduce errors or other inaccuracies, and to release HBA and its sub consultants from any liability or claims for recover or damages or expenses arising as the result of such errors or inaccuracies. HBA makes no representation or warranty as to the compatibility of the CAD files with any hardware or software, or from the modification or conversion of the CAD files into another format.

8. Where the Recipients have received specific permission to use the Electronic Documents in connection with the Recipients’’ obligation to prepare certain documents for the Project, the Recipients shall, in addition to the other obligations set forth herein, be obligated to remove HBA’s or HBA’s sub consultant’s title block from the copy of the Electronic Documents used by the Recipients.

9. The Recipients further agree that HBA’s Documents were prepared for use in connection with this project only, and that the Electronic Documents are supplied to the Recipients for the limited purpose stated above only. The Recipients agree not to use, or allow others to use, the Electronic Documents, in whole or in part, for any purpose or project other than stated above without the express prior written permission of HBA.

10. The Recipients agree that the Electronic Documents are not Record Drawings, As-Built Plans, or As-Constructed Drawings.  HBA does not guarantee the accuracy of any information depicted on the Electronic Documents.

11. The Recipients agree to waive any and all claims and liability against HBA and its sub consultants resulting in any way from any failure by the Recipients to comply with the requirements of this Agreement for the Delivery of Documents in Electronic Format or from the use of Electronic Documents.

12. The Recipients further agree to indemnify and save harmless HBA and its sub consultants, and each of their partners, officers, shareholders, directors and employees from any and all claims, judgments, suits, liabilities, damages, costs or expenses of any kind (including reasonable deference and attorneys’ fees) arising out of or resulting from: 1) the use of the Electronic Documents by Recipient or others; 2) Recipients’ failure to comply with any of the requirements of this Agreement for the Delivery of Documents in Electronic Format; or 3) a defect, error or omission in the Electronic Documents or the information contained therein, which defect, error or omission was not contained in the Contract Documents as defined in Paragraph 2, or where the use of such Contract Documents would have prevented the claim, judgment, suit, liability, damage, or cost.