SEA, LTD. TERMS AND CONDITIONS
The following Terms and Conditions govern the relationship between the parties to the Matter assigned to and undertaken by SEA, Ltd. and are binding on the date of the assignment, whether made verbally or in writing. “Client,” “you,” or “your” means the person or entity shown on the SEA, Ltd. Retention Agreement, and your successors and assigns.
1. SEA, Ltd. provides independent, impartial, third party investigations, analyses and/or opinions/conclusions. It is understood that objectivity is paramount to any other consideration and, therefore, SEA, Ltd. makes no representation or guarantee regarding the outcome of any Matter. The Client agrees to pay all SEA, Ltd. invoices upon receipt with the prior understanding and acknowledgement that SEA Ltd.’s findings, opinions or conclusions will be rendered on a neutral and unbiased basis.
2. The Client understands and agrees that SEA, Ltd. does not operate on a contingent fee basis and that payment of SEA, Ltd.’s invoices may not be deferred until a case is resolved. All professional services are on a time and expense basis unless otherwise agreed. Upon request, time and expense estimates may be provided as a courtesy for budgeting purposes and both parties understand that deviations may occur. The client may terminate the Matter at any time but is liable for all accrued charges. Hourly rates are subject to periodic adjustment, typically on an annual basis.
3. Time charged includes all time expended for the Matter. This time ordinarily includes, among other things, site visits, investigative effort, research, calculations, review of standards/specifications, report writing, drawings, travel time (billed portal-to-portal, at normal hourly rates, including delays), client meetings, client and third party communications, preparation for testimony, court appearance, court waiting and standby time. Expenses typically include, but are not limited to, travel, hotel, evidence storage, specialized equipment and/or software license charges, Matter materials, testing, and third party services. The client shall be responsible for time and travel expenses incurred by SEA, Ltd. in the event that a meeting, site visit or other Matter travel is cancelled or rescheduled. The client shall be responsible for payment of all invoices regardless of the outcome of the Matter.
4. Invoices for services will typically be submitted to the client monthly for time and expenses incurred and are due upon receipt. The client shall be fully responsible for timely payment of all invoices regardless of whether or not the client may be entitled to reimbursement therefore from a third party. SEA, Ltd. may withhold delivery of reports, testimony, data, or other work product pending full payment of all charges. In the event any outstanding invoice remains unpaid sixty (60) days after issuance, SEA, Ltd. reserves the right to stop all work and to withdraw from the engagement. SEA, Ltd. also reserves the right to contact any third party payer in the event that invoices remain unpaid sixty (60) days after issuance.
5. The client shall be responsible for all invoices that arise out of assignment of this Matter. This includes time and expense incurred in any deposition, trial testimony, document production or other requirement, whether through subpoena or otherwise, whether requested or issued by the client or a third party. In the event that SEA, Ltd. receives a subpoena or request for information from a third party, the client will be advised before any appearance or response is provided. If the client expects that other parties should be responsible for invoices in connection with such appearance or response, arrangements must be made with SEA, Ltd. well in advance with appropriate retainers obtained when/as requested, otherwise the client assumes the responsibility for time and expense involved in any appearance or response provided.
6. SEA, Ltd. shall not be liable to any person for damages of any kind except where damages are occasioned solely by the gross negligence of SEA, Ltd. or its employees. In no event shall SEA, Ltd.’s liability exceed the total contract price under which SEA, Ltd.’s services have been performed. In no event shall SEA, Ltd. be liable to the client for incidental or consequential damages of any kind, punitive damages, or attorneys’ fees.
7. In the event that SEA, Ltd. is joined as a party in any legal proceeding as a result of action taken by the client, or as a result of action taken by SEA, Ltd. at the client’s direction or request, the client agrees to defend, hold harmless and indemnify SEA, Ltd. and its personnel in connection with such proceedings to the fullest extent permitted by law, including, without limitation, reimbursement of all time, expense, and attorneys’ fees incurred by SEA, Ltd. and its personnel in connection with such proceedings.
In the event that SEA, Ltd. or its employee(s) receives a subpoena or other document production order or request that seeks SEA, Ltd. or employee financial information, case files, records, or documents other than those directly related to the Matter, and which SEA, Ltd. determines is objectionable, then, to the extent that SEA, Ltd. undertakes to prepare an objection, motion for protective order or motion to quash in response to the subpoena, order or request, the client agrees to reimburse SEA, Ltd. for any costs, expenses, labor, professional time, and attorneys’ fees incurred by SEA, Ltd. in connection therewith.
8. EVIDENCE HANDLING
a. Removal of Items from a Site. Generally, SEA, Ltd. will only remove items from a scene or site with the permission of the owner or the owner’s authorized agent. If SEA, Ltd. is unable to obtain permission to remove items at the time of a site visit, the client may be required to obtain that permission.
b. Identifying and Notifying Other Interested Parties. In some situations, the removal of items from a site is accomplished after notice to/from, and inspection by, other interested parties. However, it is not always possible to identify and notify all interested parties immediately after an incident. The duty to identify and notify other interested parties of impending site or evidence examinations and evidence removal is strictly and entirely the responsibility of the client. SEA, Ltd. does not assume responsibility for identifying or notifying other interested parties of the availability of potential physical evidence items at a site or the anticipated removal by SEA, Ltd. of such items. SEA, Ltd. will advise the client if, in its judgment, third parties should be identified and notified before evidence is removed from a site.
c. Third Party Custodians. Some situations require that evidence items be held by or entrusted to a third party. You authorize SEA, Ltd. to utilize the services of others to transport and/or store items of interest where circumstances require. In such situations, SEA, Ltd. will promptly request your instructions as to the further handling of items held by third parties.
d. Storage and Disposal. If SEA, Ltd. receives or removes evidence or items of interest, SEA, Ltd. will provide you with an inventory of those items upon request. SEA, Ltd. will store such items pending your instructions as to further handling or disposal. SEA, Ltd. will provide storage for items on a quarterly basis with storage charges due in advance and at a rate determined by SEA, Ltd. It is the sole responsibility of the client to determine when and whether these items should be ultimately disposed of. Because other parties may have an interest in examining or preserving the items, it is the client’s sole responsibility to identify such parties and to notify them of the anticipated disposal of evidence items. SEA, Ltd. may periodically request your instructions as to continued storage of items. You should consult with your counsel before authorizing SEA, Ltd. to dispose of items that may constitute physical evidence.
e. Responsibility for Storage Fees. In the event that any outstanding invoice for storage fees remains unpaid sixty (60) days after issuance, or if you do not respond to SEA, Ltd.’s periodic request for instructions as to continued storage within sixty (60) days, you authorize SEA, Ltd. to either return the evidence to you or to dispose of the evidence, at SEA, Ltd.’s sole discretion.
9. It is expressly understood and agreed that in performing Matter services SEA, Ltd. is acting as an independent contractor and not an employee of the client and that all intellectual property rights in any visual, photographic, written or electronic work product created by SEA, Ltd., or any derivative work incident thereto, shall be and remain the property of SEA, Ltd. unless otherwise agreed in writing with the client.
10. In the event that a challenge is raised to the qualifications of any SEA, Ltd. employee, or to the methodology or admissibility of any opinions of any SEA, Ltd. employee, in any action or proceeding, including, but not limited to, motions to exclude or in limine or Daubert/Frye challenges, the client agrees to immediately notify SEA, Ltd. and to permit and enable SEA, Ltd. and/or its counsel to become involved in the defense of such challenge and to participate fully in any hearings or the preparation of written submissions or filings relating thereto. Such involvement and participation will be at the client’s expense, unless otherwise agreed. The client agrees to cooperate fully with SEA, Ltd. in the defense of such challenge.
11. In the event that an SEA, Ltd. employee is to appear for deposition or trial relating to a Matter, the client agrees to provide all case materials requested by SEA, Ltd., including deposition transcripts and exhibits, to enable the SEA, Ltd. employee to prepare for his or her testimony.
12. Any modification or amendment of these Terms and Conditions must be made in writing and signed by the parties hereto, and no action or inaction of a party shall be deemed a waiver of any term or condition unless expressly set forth in writing by such party. These Terms and Conditions, and any agreement between the parties relating to the Matter, shall be governed solely by the law of the state in which the SEA, Ltd. office receiving the Matter is located, without reference to such state’s choice of law provisions.