DSI shall exercise usual and customary professional care in its efforts to comply with applicable laws, codes and regulations in effect as of the date of this
agreement. Design changes made necessary by newly enacted laws, codes and regulations after the date of this agreement shall entitle DSI to a reasonable
adjustment in the schedule and additional compensation in accordance with the rate table appended to this Agreement.
60 DISPUTE RESOLUTION
6.1
6.2
7.0
71
72
3.0
9.0
Mandatory Mediation
In the event of a dispute between CLIENT and DSI in relation to this agreement that cannot be resolved through negotiation, the parties agree that the matter
shall be submitted to mediation with a mediator mutually agreed between the parties. The mediator shall be selected from the list of Rule 32 Neutrals
maintained by the State of New Hampshire Superior Court. The mediation shall take place in the State of New Hampshire at a location agreed between the
parties and the costs of the mediation shall be shared equally between the parties. CLIENT and DSI further agree to include a similar mediation provision in
all agreements with contractors and subconsultants retained for the Project and to require all contractors and subconsultants to include similar mediation
provisions in all agreements with each of their subcontractors and subconsultants. Nothing in this provision shall be construed as a waiver of DSI’s rights to
pursuc its remedies under New Hampshire RSA ch. 447.
Binding Arbitration
In the event the dispute is not resolved through mediation, the parties agree to submit the dispute to binding arbitration before a single arbitrator pursuant to
Rule 170-A of the New Hampshire Superior Court Rules.
LIMITATION OF DSI’S LIABILITY
Liability not to Exceed Fees for Services
Owner hereby agrees that to the fullest extent permitted by law, DST’s total liability to owner for any and all injuries, claims, losses, expenses or damages
whatsoever arising out of or in any way related to the project or this Agreement from any cause or causes including but not limited to DSI’s negligence,
errors, omissions, strict liability, breach of contract or breach of warranty shall not exceed the total fee for services rendered on the Project, excluding
Reimbursable Expenses as defined in Section 1.2 of this Agreement.
Mutual Waiver of Consequential Damages
Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, neither CLIENT or DSI, their respective officers,
directors, partners, employees, contractors or Subconsultant shall be liable to the other or shall make any claim for any incidental, indirect or consequential
damages arising out of or connected in any way to the project or to this Agreement. This mutual waiver of certain damages shall include, but is not limited
to, loss of use, loss of profit, loss of business, loss of income, loss of reputation and any other consequential damages that may be incurred from any cause of
action including negligence, strict liability, breach of contract and breach of strict or implied warranty. Both CLIENT and DSI shall require similar waivers
of consequential damages protecting all the entities or persons named herein in all contracts and subcontracts with others involved in this project.
INDEMNIFICATION
DSI agrees, to the fullest extent permitted by law, to indemnify and hold harmless the CLIENT, its officers, directors and employees (collectively, CLIENT}
against all damages, liabilities or costs, including reasonable attorneys' fees and defense costs, to the extent caused by DSI’s negligent performance of
professional services under this Agreement and that of its subconsultants or anyone for whom the DSI is legally liable.
The CLIENT agrees, to the fullest extent permitted by law, to indemnify and hold harmless D&I, its officers, directors, employees and subconsultants
(collectively, DSI) against all damages, liabilities or costs, including reasonable attorneys’ fees and defense costs, to the extent caused by the CLIENT's
negligent acts in connection with the Project and the acts of its contractors, subcontractors or consultants or anyone for whom the CLIENT is legally liable.
Neither the CLIENT nor DSI shall be obligated to indemnify the other party in any manner whatsoever for the other party's own negligence or for the
negligence of others.
SEVERABILITY AND REFORMATION
Any provision or part thereof of this Agreement held to be void or unenforceable under any law shall be deemed stricken and all remaining provisions shall
continue to be valid and binding upon the parties. The parties agree that this Agreement shall be reformed to replace such stricken provision or part thereof
with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision.
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