TERMS AND CONDITIONS FOR PROFESSIONAL SERVICES (INDIA)

Project Name: Date of Proposal

Location: Client Name:

BMI Signature: Client Signature:

By: _________________________________________________ By: _________________________________________________

Name: Title: Name: Title:

1. SCOPE OF SERVICES 3. INSURANCE

For the above-referenced Project, Burns & McDonnell Engineering A. During the course of performance of its Services, if any of the BMI
India Pvt. Ltd. (BMI) will perform the services set forth in the above- employees, consultants or retainers are required to visit, inspect or
referenced Proposal in accordance with these Terms and Conditions supervise construction site than Client undertakes to insure and
(the “Services”). BMI has relied upon the information provided by Client comply under all the applicable laws for each employee, consultants,
in the preparation of the Proposal and shall rely on the information retainers of BMI at its own cost and liability which shall not be
provided by or through Client during the execution of this Project as reimbursable, shared, adjustable or transferred to BMI under any
complete and accurate without independent verification. circumstances.

2. PAYMENTS FOR SERVICES B. If the Project involves on-site construction, Employees, Consultants,
retainers who visit, inspect, supervise the Construction site shall be
A. Compensation will be as stated in the above-referenced Proposal. given proper information, training, layouts, Risk areas, ongoing
Statements (or invoices) will be in BMI's standard format and are construction status, protective safety kits, Insurance details, Insurance
payable upon receipt. Compensation is exclusive of any out-of-pocket Policy of the Client before permitted to enter the Construction site.
expenses incurred by BMI in rendering the Services, such as out-of-
station travel (including travel outside Mumbai, Maharashtra), C. Client undertakes to compensate Employees, Consultants,
boarding, lodging, conveyance, which would be charged at actuals and Retainers of BMI who visit Construction Site for any loss of life, partial
payable within 30 days of claim date. All payments shall be in Indian or total disablement, injury or accidents at the Construction site. Client
Rupee [INR]. All Payments made to BMI shall have direct relationship undertakes and shall be sole responsible for any Insurance claims
with the Milestone Completion of work done by BMI. BMI shall intimate processing, recovering or paying to the employees, consultants,
in the form of Completion Certificate for each Milestone Completion. retainers of BMI.
Advance payment prior to commencement of Services, if any, shall be
as per the BMI’s proposal. Client shall ensure all payments to be made 4. INDEMNIFICATION & THIRD-PARTY CLAIMS
to BMI within 30 days from the date of Invoice.
A. Client will be required to indemnify, defend, and hold harmless BMI
B. Outgoing wire transfer fees shall be paid by the Client, and not from any and all losses, damages, liability, claims, demands and
deducted from any payment to BMI. expenses where the same is caused or alleged to be caused in whole
or in part by the Client, its employees, agents, subcontractors or
C. If a portion of BMI’s statement or invoice is disputed by the Client, suppliers. Client agrees to indemnify and keep indemnified BMI from
Client shall communicate the same in writing to BMI along with any Regulatory actions, Court Orders, and actions by any Government
reasons and justifiable documents. Client & BMI shall mutually clarify Authorities/officials.
and resolve the disputed invoice or statement in writing and Client shall
pay the same within 30 days from the date it is clarified and resolved in B. If applicable, to the extent allowed by law, Client will require all
writing. Notwithstanding Client shall not disagree or disallow payments construction contractors to indemnify, defend, and hold harmless Client
to be paid on undisputed portion of invoices and statements raised by and BMI from any and all losses, damages, liability, claims, demands
BMI and Client shall pay them within 30 days from statement or invoice and expenses where the same is caused or alleged to be caused in
date. It is expressly agreed that time is of the essence in payment of whole or in part by the construction contractors, their employees,
statements and invoices, and timely payment is a material part of the agents, subcontractors or suppliers.
consideration of rendering the Services for the Project. A late payment
charge will be added to all undisputed amounts not paid within 30 days C If the Project involves construction and BMI does not provide
of statement or invoice date, calculated at 1.5% per month from due consulting services during construction including, but not limited to, on-
date. Client shall not reimburse any costs incurred by BMI in collecting site monitoring, site visits, site observation, shop drawing review,
any delinquent amount, including all Legal & Financial Expenses, and/or design clarifications, Client agrees to indemnify and hold
Damages and/or Losses, Compensations without any iota of harmless BMI from any liability arising from the Project.
submissions of Proof.
D. In view of the uncertainty involved in investigating and
D. Without Prejudice to the aforesaid terms BMI may upon seven (7) recommending solutions to environmental problems and the abnormal
days’ written notice to Client suspend Services without any liability for degree of risk of claims imposed upon BMI in performing such
delay or disruption, if BMI’s invoices are not paid pursuant to the services, notwithstanding the responsibility of BMI set forth in
aforesaid terms. Upon resumption of Services, BMI’s compensation shall Paragraph 5A to the maximum extent allowed by law, Client agrees to
be increased to account for the cost of suspension and resumption of release, defend, indemnify and hold harmless BMI and its officers,
Services. Client shall not have any right to recover any claims or directors, employees, agents, retainers, consultants and
damages for the time period of services suspended by BMI on default subcontractors from all liability, claims, demands, damages, losses,
made by the Client. and expenses including, but not limited to, claims of Client and other
persons and organizations, reasonable fees and expenses of attorneys
and consultants, and court costs, except where there has been a final
adjudication that the damages were caused by BMI's willful disregard
(continued)
INT-3 International Short Form
of its obligations under this Agreement. Such indemnification includes A. All communications between Client and BMI, including their respective
claims arising out of, or in any way relating to, the actual, alleged, or representatives, whether oral or written, shall be documented in English.
threatened dispersal, escape, or release of, or failure to detect or English shall be the official language of these terms and conditions/ and
contain, chemicals, wastes, liquids, gases, or any other material, of all documents prepared by BMI, as well as those furnished by Client to
irritant, contaminant, or pollutant. BMI for use on the Project. In the event of any conflict between
documents, the English version shall prevail.
5. PROFESSIONAL RESPONSIBILITY– LIMITATION OF LIABILITY B. All documents prepared by BMI pursuant to these terms and
conditions are instruments of service in respect of the Project specified
A. BMI will exercise prudent skill, care, and diligence in the herein. They are not intended or represented to be suitable for reuse
performance of its Services and will carry out its responsibilities in by Client or others in extensions of the Project beyond that now
accordance with project specifications and/or requirements with due contemplated or on any other Project. Any reuse, extension, or
care of professional practices in the industry. BMI shall endeavor to completion by Client or others without written verification, adaptation,
meet the project requirements and/or specifications as desired by and permission by BMI for the specific purpose intended will be at
Client in writing and agreed by BMI, however, in case of any deficiency Client’s sole risk and without liability or legal exposure to BMI. If Client
claimed by the Client within 3 months of completion of Service in suffers any loss due to such reuse, extension, or completion by Client
writing to BMI and the same being admitted by BMI, it will perform at its or others then the Client shall indemnify and hold harmless BMI for the
own cost, the professional services necessary to correct errors and same.
omissions. No warranty or guarantee, express or implied, is included in
these terms and conditions/the Proposal regarding any drawing, C. BMI owns all documents and designs it prepares or furnishes under
specification, or other work product or instrument of service. this Agreement, including copyrights under Indian Copyright Act, 1957
read with Rules, notifications, amendments, etc.,
B. In no event will BMI be liable for any special, indirect, or
consequential damages or losses including, without limitation, D. Client warrants the completeness, accuracy, and efficacy of the
damages or losses in the nature of increased Project costs, loss of information, data, and design provided by or through Client (including
revenue or profit, loss of contracts, loss of use, loss of opportunities, prepared for Client by others), for which BMI shall rely on to perform
loss of goodwill or business, lost production, claims by customers of and complete its services.
Client, and/or governmental fines or penalties, howsoever arising
whether in contract, tort (including negligence), strict liability or E. In the event that BMI is to reuse, copy or adapt all or portions of
otherwise. reports, plans, or specifications prepared by others, Client represents
that Client either possesses or will obtain permission and necessary
C. BMI's aggregate liability for all losses and/or damages connected rights in copyright, patents, or other proprietary rights and will be
with its Services for the Projects not excluded by the preceding responsible for any infringement claims by others.
subparagraph, whether or not covered by BMI’s insurance, will not
exceed anytime beyond 10% of the Total Contract value or 10% of the 10. ESTIMATES, SCHEDULES, FORECASTS, AND PROJECTIONS
Total Contract Value of each Project performed by BMI or Unfulfilled
portion of Services (whichever is less). If applicable, Estimates, schedules, forecasts, and projections
prepared by BMI relating to interest rates and other financial analysis
D. These mutually negotiated obligations and remedies stated in this parameters, construction costs and schedules, operation and
Paragraph 5, Professional Responsibility – Limitation of Remedies, are maintenance costs, equipment characteristics and performance, and
the sole and exclusive obligations of BMI and remedies of Client, operating results are opinions based on BMI’s experience,
whether liability of BMI is based on contract, warranty, statute, strict qualifications, and judgment as a professional. Since BMI has no
liability, tort (including negligence), indemnity, or otherwise. control over weather, cost and availability of labor, cost and availability
of material and equipment, cost of fuel or other utilities, labor
6. TERM OF SERVICE AND SCHEDULE productivity, construction contractor’s procedures and methods,
unavoidable delays, construction contractor’s methods of determining
The provisions of these terms and conditions/the Proposal have been prices, economic conditions, government regulations and laws
agreed to in anticipation of the orderly and continuous progress of the (including the interpretation thereof), competitive bidding or market
Project through completion of the Services stated in these terms and conditions, and other factors affecting such estimates or projections,
conditions/the Proposal. BMI does not guarantee that actual rates, costs, quantities,
performance, schedules, etc., will not vary from estimates and
7. COMPUTER PROGRAMS OR MODELS projections prepared by BMI.
Any use, development, modification, or integration by BMI of computer 11. CONFIDENTIALITY
models or programs does not constitute ownership or a license to
Client to use or modify such computer models or programs. It is A. Client and BMI hereto shall, save as otherwise provided herein,
expressly clarified that BMI shall continue to own the intellectual maintain in strict confidence, and not disclose or use for a purpose
property rights in the computer models and programs, and any liability other than the purpose set out herein, any confidential and/or
arising on account of the use/misuse and modification of such proprietary information (“Confidential Information”) of any party
computer models and programs by the Client shall be to the account of including this terms and conditions hereof. The foregoing covenant
the Client. shall not restrict a party from disclosing Confidential Information to
the extent required in connection with any legal proceeding(s) or
8. ELECTRONIC MEDIA AND DATA TRANSMISSIONS required for filing with govt. agencies, courts, stock exchanges or
other regulatory agencies under applicable laws and regulations.
A. Any electronic media (computer disks, tapes, etc.) or data
transmissions furnished (including Project Web Sites or CAD file B. Client & BMI shall restrict access to the Confidential Information only
transmissions) are for Client information and convenience only. Such to its own employees or professional advisers who need to have
media or transmissions are not to be considered part of BMI's such access for the purposes of performing the obligations or
instruments of Service. enforcing the rights under this Agreement and who have agreed with
such party to abide by the obligations of confidentiality equivalent to
B. BMI shall not be liable for loss or damage directly or indirectly, those contained herein with such party. The disclosing party shall
arising out of Client’s use of electronic media or data transmissions. remain vicariously liable for such disclosure.

C. Unless otherwise agreed, this clause shall continue to remain in

9. COMMUNICATION AND DOCUMENTS force for a period of 2 years after the expiry or termination of this

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 terms and conditions along with any additional contractual such time as such breach has been remedied by the Client. In no such
arrangement between the Client and BMI. case BMI shall be responsible for any direct or indirect loss, damages
of any kind, or claims from the Client in respect of such period of
D. For the purposes of this Agreement, the term ‘Confidential suspension.
Information’ includes such non-public information which is
disclosed by either party to the other party, whether or not marked TERMINATION
confidential, and which includes inter alia, business policies or
practices, business plans, dealings, customer lists or requirements, Services may be terminated by Client or BMI by seven (7) days' written
price lists or pricing structures, technical data, employee or officers’ notice in the event of material breach of the terms agreed herein or the
data, product lines, designs, research and development activities Proposal or failure to perform in accordance with the terms hereof by
and findings, ideas, concepts, know-how, financial statements and the other party through no fault of the terminating party or in the event
other nongeneric information whether tangible or intangible written of Force Majeure. If so terminated, Client shall pay BMI all amounts
or oral, relating to any released or unreleased concepts, ideas, due to BMI for all Services rendered and expenses incurred to the date
projects and services, the marketing or promotion of products and of termination, plus all incidental, financial & legal costs incurred by
any other information received from any source which would be BMI in terminating the Services. In addition, Client may terminate the
deemed as confidential or proprietary. Services for Client's convenience upon payment of not less than fifty
percent of the yet unearned and unpaid estimated, lump sum, or not-
12. TAXES to-exceed fee, as applicable along with the fee for the Services
rendered until the date of termination plus incidental, financial and
A. Taxes as may be imposed on professional consulting services and legal costs incurred by BMI in terminating the Services.
taxes paid by BMI to taxing authorities, such as tax withholdings, Notwithstanding BMI shall have undisputed right to terminate the
transaction taxes, value-added taxes and similar taxes like Goods & contract anytime in writing by giving 7 days’ notice without any reason
Services Tax (GST) , are not included in the contract price as mentioned in case of any default by the Client in relation to terms or Breach of the
in Proposal (“Contract Price"). All such excluded taxes not included in terms & conditions, or on nonpayment of invoices raised by the BMI
the Contract Price are to be paid by Client as a reimbursable expense in and without prejudice to all legal remedies available to BMI under the
addition to the payment stated in the above-referenced Proposal. laws in India.

B. Where permitted by law, Client shall seek an exemption for BMI of any 16. DISPUTES, NEGOTIATIONS, MEDIATION
income taxes levied in the country where the Project is located on
earnings paid and taxes levied by that country. A. In the event that a dispute should arise relating to the performance of
the Services such dispute shall first be submitted to the respective
13. ON-SITE SERVICES representatives identified by each party, with authority to settle. The
Client and BMI agree to use their best efforts for resolving all disputes
A. Project site visits by BMI during investigation, observation, arising in relation to the Services promptly, equitably and in good faith,
construction or equipment installation, or the furnishing of Project and further agree to provide each other with reasonable access during
representatives shall not make BMI responsible for construction means, normal business hours to all non-privileged records, information, and
methods, techniques, sequences, or procedures; for construction safety data pertaining to the dispute.
precautions or programs; or for any construction contractor(s') failure to
perform its work in accordance with the contract documents. B. If the designated representatives are not able to resolve the dispute
within thirty (30) days after first request for a meeting, then the dispute
B. Client shall disclose to BMI the location and types of any known or shall be resolved by submission to mediation and/or conciliation as
suspected toxic, hazardous, or chemical materials or wastes existing on mutually agreed between the Parties under the Rules of Mediation
or near the premises upon which work is to be performed by BMI's and/or Conciliation as the case may be under The Arbitration &
employees or subcontractors. If any hazardous wastes not identified by Conciliation Act, 1996 read with all the amendments & modifications
Client are discovered after a Project is undertaken, Client and BMI agree made therein during time to time. Each party shall equally share all the
that the scope of Services, schedule, and compensation may be cost of Mediation and/or Conciliation.
adjusted accordingly. Client agrees to release BMI from all damages
related to any pre-existing pollutant, contaminant, toxic, or hazardous C. If the dispute is not resolved after one full session of mediation and/or
substance at the site. conciliation as the case may be, it shall be submitted to binding
arbitration in accordance with The Arbitration and Conciliation Act, 1996
14. CHANGE OF ORDERS/VARIATION and Rules made thereunder along with all the amendments, and/or
modifications made from time to time. Client & BMI agree to appoint a
Client shall have the right to make changes within the general scope of Sole Arbitrator through a Court having Jurisdiction over the Contract.
BMI's Services, with an appropriate change in compensation and Arbitrator shall be the person who has the sound knowledge and
schedule, as may be mutually acceptable to the Client and BMI. Any experience of law, finance & have dealt disputes of Engineering
amendment or change of order to effect a change in the general scope Companies. Fees of the arbitrator shall be as per Schedule IV of the
of the Services would need to be accepted in writing and be signed by Arbitration and Conciliation Act, 1996 which shall be shared equally by
authorized representatives of Client and BMI. Notwithstanding Client & the parties. Parties agree to bear all the other cost of arbitration equally
BMI shall agree to any Change of Orders based on Project Change between them.
Notice Procedure proposed by BMI at such time which increases the
time schedule of services to be provided by BMI in relation to Total D. All such mediation and/or conciliation and arbitration proceedings
Contract Value with Payment terms to be agreed upon in writing by shall be conducted in the English language and the seat/venue/place of
BMI & Client. Notwithstanding, no Change of Orders shall be agreed these proceedings will be in Mumbai, India.
upon between the Parties where there is decrease in time schedule of
services to be provided by BMI in relation to Total Contract Value with E. The prevailing party is entitled to recover its reasonable attorney’s
Payment Terms unless in writing agreed by BMI. fees and related costs incurred in mediation/conciliation and arbitration.

15. SUSPENSION AND/OR TERMINATION F. To the extent Client may claim immunity from suit, jurisdiction,
execution or attachment on assets or property, or other remedy, Client
SUSPENSION shall waive and not assert such immunity to the extent permitted by law.
If the Client is of any breach of any terms and conditions including
Payment terms, then BMI shall have undisputed right to immediately G. Notwithstanding Client agrees to clear all pending payments till the
suspend the Service for indefinite period to Client. Such suspension time of dispute and/or in case of continuing operations of service at the
shall be first served by giving written notice to the Client to correct the time of dispute without any deductions and/or claims.
necessary violation of terms and condition within 3 days after which
suspension shall take its effect immediately for indefinite period until

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 shall mutually discuss and arrive at the further course. Parties agree
17. CONTROLLING LAW & JURISDICTION that there shall be no claims, deductions, damages, losses claimed by
either party against the other party during the time period of force
A. This Agreement shall be governed by the laws of India. majeure and during the time period of mobilization to attend the normal
course of business for continuation of service.
B. Courts in Mumbai, India shall have exclusive jurisdiction over any
disputes between the Parties.
D. The Party affected by the event of Force Majeure shall use
18. RIGHTS AND BENEFITS – NO ASSIGNMENT reasonable efforts to mitigate the effect thereof upon its or their
performance of the Contract and to fulfil its or their obligations under
BMI's Services will be performed solely for the benefit of Client and not the Contract, but without prejudice to either Party’s right to terminate
for the benefit of any other persons or entities. Neither Client nor BMI the Contract under Clause 15.
shall assign or transfer interest in this Agreement without the written
consent of the other. E. Delay or non-performance by either Party hereto caused by the
occurrence of any event of Force Majeure shall not constitute a default
19. ENTIRE CONTRACT or breach of the Contract.

These Terms and Conditions and the above-referenced Proposal

contain the entire agreement between BMI and Client relative to BMI's 22. RELATIONSHIP BETWEEEN CLIENT AND BMI (PARTIES)
Services for the Project herein. All previous or contemporaneous
agreements, representations, correspondences, promises, and Nothing contained in these terms and conditions is intended to, or shall
conditions relating to BMI's Services for the Project are superseded. operate to, create a relationship of partnership or employer employee
Since terms contained in purchase orders do not generally apply to or joint venture between the parties. Nothing in these terms and
professional Services, in the event Client issues to BMI a purchase conditions constitutes either party as the agent or legal representative
order, no preprinted terms thereon shall become part of these Terms of the other party or creates any fiduciary relationship between the
and Conditions, and the purchase order will continue to be governed parties. Neither party shall have authority to act in the name or on
by the terms of these Terms and Conditions. Said purchase order behalf of or otherwise to bind the other or commit or purport to bind the
documents, whether or not signed by BMI, shall be considered only as other in any way (including the making of any representation or
an internal document of Client to facilitate administrative requirements warranty, the assumption of any obligation or liability and the exercise
of Client’s operations. of any right or power) or pledge the credit of the other party for any
purpose.
20. SEVERABILITY

Any unenforceable provision herein shall be amended to the extent - END -

necessary to make it enforceable; if not possible, it shall be deleted,
and all other provisions shall remain in full force and affect.

21. FORCE MAJEURE

A. “Force Majeure” shall mean any event (a) beyond the reasonable
control of the Parties; (b) which is unavoidable notwithstanding the
reasonable care of the Party affected; (c) which is not attributable to
any breach or negligence of any of the Parties; and (d) which could not
have been reasonably foreseen; and shall include, without limitation,
the following:
(a) act of God (such as, but not limited to, fires, explosions,
Earthquakes, drought, Epidemic/Pandemic, tidal waves floods, heavy
rains and lightning) ;
(b) war, hostilities (whether war be declared or not), invasion, act of
foreign enemies, mobilization, requisition, or embargo;
(c) rebellion, revolution, insurrection, or military or usurped power, or
civil war;
(d) contamination by radioactivity from any nuclear fuel, or from any
nuclear waste from the combustion of nuclear fuel, radio-active toxic
explosive, or other hazardous properties of any explosive nuclear
assembly or nuclear component of such assembly;
(e) riot, commotion, national and/or regional strikes, local/state/national
lockdowns, lock outs or disorder; or
(f) acts or threats of terrorism.
B. If either Party is prevented, hindered, or delayed from or in
performing any of its obligations under the Contract by an event of
Force Majeure, then it shall notify the other in writing of the occurrence
of such event and the circumstances thereof within seven (07)
Business Days of the occurrence of such event or immediately to the
extent possible (whichever is earlier).
C. The Party who has given such notice shall be excused from the
performance or punctual performance of its obligations under the
Contract for so long as the relevant event of Force Majeure continues
and to the extent that such Party’s performance is prevented, hindered,
or delayed. The Time for Completion shall be extended for the period
such Force Majeure exists and, in such case, both the Parties hereto
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