Legal PDDs Packet

LEGAL PDDs PACKET

This Legal PDDs Packet (the Packet) is entered into as of Effective Date: by and between Client Name: (Client) and Provider Name: (Provider).

RECITALS

WHEREAS, Provider has prepared or assembled certain project development documents, investigations, reports and related materials commonly referred to herein as Project Development Documents or PDDs, which are listed and described in Section 2 below; and

WHEREAS, Client requires the delivery of such PDDs to enable Client's review, permitting, financing and other due diligence activities related to the Project; and

WHEREAS, the parties wish to set forth the terms governing delivery, review, confidentiality, reliance, and allocation of risk with respect to the PDDs.

NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:

1. DEFINITIONS

1.1 "PDDs" means the set of documents, reports, plans, studies, surveys, permits, and related materials provided by Provider to Client under this Packet, whether delivered electronically or in hard copy. PDDs specifically include, without limitation, those items listed in Section 2.

1.2 "Acceptance" means Client's written acknowledgment that a delivered PDD substantially complies with the description of the item delivered and is sufficient for Client's review, subject to reasonable and customary qualifications stated at the time of acceptance.

2. PACKET CONTENTS; DELIVERABLES

Provider represents that the Packet shall include the following items. Client shall indicate receipt and acknowledgment of each delivered item by checking the corresponding box upon delivery.

3. DELIVERY, REVIEW AND ACCEPTANCE

3.1 Provider shall deliver the PDDs in the form and on the schedule set forth below. Provider's delivery constitutes presentation for Client review only and does not, by itself, constitute Acceptance.

3.2 Client shall have a period of thirty (30) days from receipt of each PDD to provide written comments or objections. Failure to provide timely written objections shall constitute Acceptance of the submitted PDD, except where material defects are subsequently discovered.

4. REPRESENTATIONS AND WARRANTIES

4.1 Provider represents and warrants that, to Provider's knowledge, the PDDs were prepared by qualified professionals, and the information contained therein is accurate and complete as of the date prepared, except as expressly noted in the PDDs. Provider makes no warranty as to future conditions or events.

4.2 Client represents that it will use the PDDs solely for the purposes set forth in this Packet and that any reliance upon the PDDs will be subject to Client's independent verification, except as expressly agreed in writing.

5. CONFIDENTIALITY; LIMITED RELIANCE

5.1 All PDDs and any accompanying data exchanged under this Packet constitute Confidential Information. Neither party shall disclose Confidential Information to third parties except to those employees, consultants, lenders or advisors with a need to know, provided that such persons are bound by confidentiality obligations at least as protective as those herein.

5.2 Confidential Information does not include information that is or becomes publicly available through no breach of this Packet, is lawfully obtained from a third party, or is independently developed without use of the Confidential Information.

5.3 Client acknowledges that certain professional reports are prepared for informational purposes only and that reliance by third parties is limited unless expressly agreed in writing by Provider and the authoring professional.

6. INDEMNIFICATION

6.1 Provider shall indemnify and hold harmless Client from any Losses arising from Provider's negligent preparation of, or material misrepresentation in, the PDDs, provided that Client provides prompt written notice of any claim and cooperates in the defense. Provider's obligation shall not apply to Losses resulting from Client's misuse of the PDDs or Client's failure to obtain independent verification.

6.2 Client shall indemnify and hold harmless Provider from any Losses arising from Client's use of the PDDs for a purpose not contemplated by this Packet or from Client's dissemination of PDDs to third parties in breach of Section 5.

7. LIMITATION OF LIABILITY

7.1 EXCEPT FOR LIABILITY ARISING FROM WILLFUL MISCONDUCT OR FRAUD, EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS PACKET SHALL NOT EXCEED THE TOTAL FEES PAID BY CLIENT TO PROVIDER FOR THE PDDs GIVING RISE TO THE CLAIM.

7.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. RECORDS; ACCESS

8.1 Provider shall retain originals of professional reports and source data for a period of no less than five (5) years following delivery. Upon reasonable notice, Provider shall permit Client or Client's authorized representative to inspect such records during normal business hours.

9. NOTICES

All notices required or permitted under this Packet shall be in writing and delivered by hand, nationally recognized overnight courier, or certified mail, return receipt requested, to the addresses listed below or to such other address as a party designates by notice.

10. AMENDMENTS; WAIVER; COUNTERPARTS

10.1 This Packet may be amended only by a writing signed by both parties. No failure or delay by either party in exercising any right shall operate as a waiver thereof, and no single or partial exercise of any right shall preclude other or further exercises of such right.

10.2 This Packet may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Signatures delivered by electronically transmitted image shall be binding as originals.

11. GOVERNING LAW; ENTIRE AGREEMENT; SEVERABILITY

11.1 This Packet shall be governed by and construed in accordance with the laws of the jurisdiction selected by the parties below without regard to conflict of laws principles.

11.2 This Packet constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings and communications, whether written or oral.

11.3 If any provision of this Packet is held invalid or unenforceable, the remainder of this Packet shall remain in full force and effect and such provision shall be reformed only to the minimum extent necessary to make it enforceable.

12. MISCELLANEOUS ADMINISTRATIVE PROVISIONS

12.1 Costs and expenses. Each party shall bear its own costs and expenses incurred in connection with the preparation, negotiation and execution of this Packet, unless otherwise agreed in writing.

12.2 Survival. Representations, warranties, indemnities and confidentiality obligations specifically designated to survive termination or expiration shall so survive for the periods specified or, if none, for three (3) years following termination.

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