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Terms and Conditions

These terms and conditions apply to all services and products supplied by Ammonia Process Safety Management, Inc. (“Consultant”) to or for the (“Customer”), and all bids or contracts for such supply of services and products.  These terms and conditions supersede any and all of Customer’s provisions relating to this Work (as defined below). 
1. Work.  
The term “Work” means all services or products supplied or required to be supplied by Consultant to or for Customer under contract or otherwise, including without limitation, items identified in the proposal, appendix, or “description” provision of any contract for the supply of any services or products by Consultant to or for Customer.  Work does not include unanticipated conditions discovered during the Work.
2. Proprietary Rights.  
Consultant retains all right, title and interest in any know how, technologies, inventions, ideas or concepts used or developed by Consultant in performing the Work. Consultant reserves the right to develop templates based on the Work.
3. Risk of Loss/Delivery.  
Unless otherwise provided by law, Title to the Work shall pass to Customer when the Work is paid in full.  Unless otherwise expressly agreed in writing, the date of delivery of any Work shall be the date the Work is performed.  Risk of Loss and the duty to insure any Work shall pass to Customer at the time of delivery. 
4. Limited Warranty.  
Consultant warrants to customer that the work shall be free of material defects upon delivery. Consultant warrants that it will perform its services in a reasonable manner.  
5. Software
 For any software provided as part of the Work, Customer agrees: 
a. To comply with any licenses to which such software may be subject. 
b. For software not subject to its own license, Consultant grants Customer a license to use the software only for the purposes of the Work.  
c. To not reverse engineer, decompile or otherwise attempt to create source code from the software. 
For any third-party software provided or utilized as part of the Work, warranties, if any, are provided by the original third-party licensor of the software, not consultant. 

The Software provided is licensed, not sold, for use until this license is terminated in accordance with its terms, or until Customer ceases to pay the required subscription costs, at which time Consultant may remove access to the Products. 
6. Matters Not Warranted.  
Consultant is not responsible under warranty or otherwise for any pre-existing defective or unforeseen conditions or damage not expressly included in the work. 
7. Disclaimers.   
Customer has sole responsibility for any and all decisions concerning data, records, reports and other information presented or recommended by consultant as part of work.  Consultant makes no warranty that customer will pass a regulatory, standards, guideline, or other type of audit/inspection or be compliant with laws, regulations, standards, guidelines, or any other standard-of-use. It is the sole responsibility of customer to determine final applicability of the laws, regulations, standards, guidelines, insurance requirements, and client requirements to operations and transactions.  Consultant makes no warranty based on use of any documents provided to customer for anything other than their intended purpose.
 8. Remedy.   
Customer’s sole and exclusive remedy for any defect under the warranty in Section 4 shall be limited to, at Consultant’s option, to redo such part of the work as consultant deems necessary to cure the defect, or refund of the purchase price of the defective work. 
9. Limitation of Remedy.   
Consultant shall never be liable to customer or third parties for any loss of revenues, delay, or indirect, special, incidental or consequential damages arising out of or relating to the work. Consultant is not liable for consequential damages, lost profits, lost revenues or damage to reputation.
10. Timely Claim
Any warranty or contract claims are forever waived and barred unless within 90 days from the date of completion of the Work Customer delivers to Consultant at its address set forth above a written claim fully describing the allegedly defective work. 
11. Damage.   
Consultant shall not be held liable for the natural consequences of Consultant’s work, which may include damage to improvements in real property.  Consultant shall not be held liable for damage to personal property, real property, fixtures, or any improvements to real property caused by persons delivering materials or equipment.   
12. Force Majeure.   
If the performance of any part of this contract by the Consultant is prevented, hindered, delayed or otherwise made impracticable by reason of any strike, flood, riot, fire, explosion, war, act of terrorism or any other casualty or cause beyond the control of Consultant, and which cannot be overcome by reasonable diligence and without unusual expense, Consultant shall be excused from such performance to the extent that it is necessarily prevented, hindered or delayed thereby.  Performance may be excused and this contract shall be deemed suspended during the continuance of any such happening or event and for so long as such event shall continue to prevent, hinder or delay such performance. 
13. Indemnity.   
Customer agrees to indemnify and save harmless Consultant, its officers, agents, subcontractors, and employees, from and against all suits, claims, actions, losses, costs, penalties, damage, and expenses (including attorney fees) whatsoever kind or nature, arising out of, in connection with, or incident to, Work, including Work relating to any hazardous substance or the occurrence of any adverse environmental or occupational event, except that caused by the sole negligence of the Consultant. 
14. Hazardous Material Abatement. 
In the event it becomes necessary for the removal or abatement of hazardous materials such as asbestos or lead paint, the costs of such removal or abatement shall be borne by Customer.  Customer shall be responsible for procuring professional hazardous material cleanup in a timely manner.  In addition, the amounts incurred by Consultant resulting from the removal or abatement, including but not limited to additional precautions that must be taken by Consultant and any delays in the work performed by Consultant on the Customer’s property or other property, shall be added to the amount to be paid by the Customer. 
15. Confidentiality.   
Consultant and Customer agree that all confidential documents and information (including all computer code and software related materials) received or otherwise obtained from the other party pursuant to this Work, whether before or after the performance of the Work, shall be, and shall be deemed to have been, received in strict confidence and shall be used only for the purposes of carry out the obligations of or as otherwise contemplated by, this Work.  Without obtaining the prior written consent of the other party, or as otherwise expressly permitted under this agreement, neither party shall disclose any such information to any party.
16. Entire Agreement.   
Except to the extent the parties otherwise agree in writing, these terms and conditions and the agreed proposal for the Work, are the exclusive expression of the understanding of the parties in connection with the Work.   
17. Interpretation, Jurisdiction, Venue.   
This Work and these terms and conditions shall in all respect be governed, construed and interpreted by the laws of the State of Utah, except where superseded by federal law.  Utah state courts shall have exclusive jurisdiction over any controversy arising out of or relating to the Work or these terms and conditions.  Venue of any dispute arising out of or relating to the Work or these terms and conditions shall, at Consultant’s option, be in courts of competent subject matter jurisdiction in Utah County, Utah state. 
18. Payment Terms.   
Payment terms are net 30 days, unless otherwise agreed in writing. 
19. Attorney Fees.    
Customer agrees to pay to Consultant all attorney fees and costs Consultant incurs to collect any balance due from Customer, including without limitation, all fees and costs to enforce its lien rights against Customer’s premises. 
20. Severability.   
If any term or provision of these terms and conditions is held by any court or other competent authority to be illegal or unenforceable, the remaining terms and provisions shall not be affected.   
21. Not Assignable.   
These terms and conditions apply to the original Customer only and are not assignable.  
22.  Master Contract
These terms and conditions may be applied to additional Work, by providing in an agreed proposal that such proposal is subject to these Master Terms and Conditions.  Upon execution by both parties, any prior Work shall be deemed to be performed pursuant to these Master Terms and Conditions.   Facsimiles of this Master Contract and subsequent appendices are binding.