Terms and Conditions
THIS CUSTOMIZED SOLUTIONS AGREEMENT ("Agreement") is made as of the date submitted and approved between Texas Excavation Safety System, Inc. d/b/a Texas811, a Texas nonprofit corporation ("Texas811"), and our ("Member").
WHEREAS, Texas811 has been formed in an effort to reduce injuries to persons and damage to underground facilities through the establishment of a statewide notification system; and
WHEREAS, Texas811 has developed a system to identify at a greater level of detail the location of the utility line in relation to the proposed excavation area (“Customized Solutions”);
WHEREAS, Member is a General Member of Texas811 and Member desires to utilize Texas811’s Customized Solutions upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the Recitals set forth above, the terms and conditions of which are incorporated into this Agreement with the same effect as if fully restated below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Customized Solutions. Texas811, through its officers, employees and agents, shall provide Customized Solutions to Member for each notice of excavation ticket in the geographic area designated by Member.
Suppression of Ticket Transmission. Transmission of ticket to the member’s designated output will be suppressed when it is deemed the work is not in conflict with the excavation site provided on the ticket, or when it is outside of the scope of rules agreed upon between member and Texas811. Suppression may also occur during the “Update Filtering” process when it is deemed a response from utilities is not needed due to the excavator wishing only to update the life of the ticket to comply with Texas Administrative Code Title 16 – Part 1 – Chapter 18 Rule 18.1 - 5(h) which states: Unless an excavator and an operator otherwise expressly agree in accordance with the requirements set forth in §18.3 of this title, relating to Excavator Notice to Notification Center, the life of a line locate ticket shall be 14 days.
Customized Solutions Fee. For all the services to be rendered by Texas811 hereunder, Member shall pay Texas811 in accordance with the fee schedule listed in in the agreement. The Customized Solutions fee shall be paid by the Member with the per-message fee paid for such notification.
Term and Termination of Agreement. The term of this Agreement shall be for the one (1) year period beginning as of the date agreement is submitted, and shall be automatically renewed each year thereafter unless sooner terminated as provided in the next sentence. This Agreement may be terminated by either party upon sixty (60) days written notice to the other party.
Indemnification. Member agrees to indemnify and hold harmless Texas811 from any claim or loss, which arises from the performance of the Customized Solutions.
5.1 Amendment. This Agreement may be amended only by a written instrument signed by all the parties.
Captions. Captions of this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of this Agreement nor in any way affect this Agreement.
5.2 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and together shall constitute one and the same Agreement.
5.3 Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the matters contained herein, and any representation, inducement, promise, or agreement, whether oral or written, which pertains to such matters and is not embodied herein shall be of no force or effect.
5.4 Governing Law. This Agreement shall be interpreted, construed, and governed according to the internal laws of the State of Texas, without reference to its choice of law rules.
5.5 Jurisdiction and Venue. Any suit involving any dispute or matter arising under this Agreement may only be brought in the United States District Court for the Northern District of Texas or any Texas State Court having jurisdiction over the subject matter of the dispute or matter. All parties hereby irrevocably consent to the exercise of personal jurisdiction and venue by any such Court with respect to any such proceeding.
5.6 No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
5.7 Notices. Any notice or other communication required or permitted pursuant to this Agreement shall be in writing and shall be furnished either by personal delivery or sent by facsimile, overnight mail, or by certified mail, return receipt requested, to the principal office address of party, as applicable. Any such notice or communication shall be deemed received (i) at the time of delivery if sent by personal delivery, (ii) at the time of transmission if sent by facsimile; provided that evidence of transmission to the recipient is obtained, (iii) on the date of delivery in the case of overnight mail, and (iv) three business days following proper mailing thereof with postage prepaid in the case of certified mail.
5.8 Separability of Provisions. Each provision of this Agreement shall be considered separable and if, for any reason, any provision or provisions herein are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this Agreement that are valid.
5.9 Signatures. Any signature transmitted by facsimile, e-mail, or other electronic means shall be deemed to be an original signature.