AIHA Special Interest Group: ConsultSIG

Task: Example Contract Language Task

Product: Example Consulting Services Agreement
DISCLAIMER: THE FOLLOWING IS NOT A MODEL AGREEMENT
This consulting services agreement is provided as an example only, and does not constitute legal advice.
Persons reading this document or who wish to utilize language in this example consulting services
agreement should consult with knowledgeable counsel before proposing or entering into any legally
binding agreement. This contract language does not conform to any state laws.
(For purposes of this document the terms agreement and contract are interchangeable)
Introduction and Purpose of this Example Consulting Services Agreement
The following example consulting services agreement has been prepared by the American
Industrial Hygiene Association (AIHA) Consult Special Interest Group (ConsultSIG) for
submission to the AIHA and use by the AIHA general membership. The primary purpose
of preparing this document was to provide the AIHA membership with a structured
example consulting services agreement that focuses on the specific issues consulting
industrial hygienists may encounter when working in the field of Indoor Air Quality
(IAQ) and in particular, mold (fungi) related projects. Although the initial focus was on
IAQ-related services, this example agreement can easily be modified and tailored for
other industrial hygiene consulting services since many of the elements and contract
terms and condition will apply to other types of services offered.
The intent of this document is to provide a structured example consulting service
agreement that can be considered when industrial hygienists, offering indoor air quality
(IAQ), mold (fungi), and other services, are preparing their consulting services
agreements for their clients. It is not the intent of this example agreement or feasible to
provide a single example agreement that addresses all industrial hygiene consulting
services or situations. Therefore, it must be recognized by the industrial hygiene
consultant using this utilizing this example agreement that each client and project is
unique and the drafting of a consulting services agreement should be done in conjunction
with knowledgeable counsel and reflect the individual clients specific issue or problem,
scope of services being offered, nature of the agreement, and consultants potential
liability.
One area of particular concern with respect to potential liability for all industrial
hygienist and specifically those providing IAQ and mold (fungi) related consulting
services, are claims arising from a failure to clearly define the scope of services in their
client agreements. Based on this risk, specific scope of services elements for
consideration in preparing a consulting services agreement are provided in this example
agreement. In addition, relevant exclusions to scope of services are also included. It

should be noted that this list is not all inclusive and is offered merely as a starting point
for consultants when drafting the scope of services or equivalent section of their
consulting services agreement.
Italicized or boxed text in this example agreement presents information for
consideration by the consulting industrial hygienist when preparing a consulting services
agreement. Italicized text (when imbedded in the example text portions) is also used as
example text for specific consulting situations (primarily IAQ-related). The actual
example consulting services agreement language throughout the body of the example
agreement is provided as standard text.
The intent of the ConsultSIG is to make this example consulting services agreement a
living document and revise it as necessary to capture the lessons learned and
recommendations from consulting industrial hygienists working in all consulting service
areas. In addition, information related to the current and future legal issues and claims
that arise from consulting industrial hygiene practice will contribute to the betterment of
this example document content. Contributions and suggestions from industrial hygiene
consultants and the AIHA general membership to improve this document are encouraged
and welcomed and should be submitted to the AIHA ConsultSIG for consideration.
The ConsultSIG has worked in coordination with AIHA and others on this document and
wishes to extend special thanks to Mr. William C. Collier, Esq., CIH of McDonald
Collier,Mr. Martin M. Ween, Esq., of Wilson, Elser, Moskowitz, Edelman & Dicker LLP,
and Mr. Donald J. Wylie McCarter, Esq. of McCarter & English, LLP for their
contributions to this document.

CONSULTING SERVICES AGREEMENT XXX-XX-2006-001

EXAMPLE CONSULTING SERVICES AGREEMENT XXX-XX-2006-001
1.

CLIENT AND CONSULTANT DEFINED

Provide full name and address for consultant and client example follows:
This Consulting Services Agreement is entered into by Name of Consulting Company,
Inc., 999 2nd Ave., Anywhere, NY (Consultant) and Name of Client, 111 5th Ave.,
Somewhere, NY (Client) and execution of this Consulting Services Agreement is
considered a retainer for stated Consultant services by Client for the period of
day/month/year to day/month/year. Consulting services will be initiated following
the receipt of copy of this consulting services agreement signed by the Client (a
signed fax copy of the consulting services agreement or e-mail confirmation
authorizing the initiation of consulting services is acceptable until a signed copy of
the consulting services agreement is received by the Consultant. Email
communication by the Client authorizing initial services or changes in scope of
service must include the consulting service agreement number and the authorizing
individuals name and title).
2.

SCOPE OF SERVICES

The scope of services section of any industrial hygiene consulting services agreement is
critical. The scope section must include all services that will be performed in as much
detail as possible and, just as importantly, clearly state what services are excluded. No
example scope of services language is provided since each scope will be unique based on
the client, location, and nature of services requested by the client and offered by the
consultant. Rather, the following scope bullets are provided for consideration when
drafting the scope of services section of an agreement.
This list of bullets is targeted toward IAQ and mold (fungi) related consulting services.
Items for inclusion consideration in a scope of services section:

Exact location where services will be provided (property address,

apartment/unit/suite #, floor)
Nature of visual and physical assessment of location (walkthrough inspection
of accessible areas)
What sampling or testing will be conducted, number of samples, collection
protocol/method, laboratory to be used for analysis (AIHA accredited lab for analysis
to be performed)
What physical measurements will be taken (temperature, relative humidity,
and other IAQ parameters)

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What will be included in the assessment report to Client (observations,

findings, sampling results, measurements, and recommendations)?
Consider who should receive communications as to the work performed by
Consultant.
State to whom the report should and should not be sent and in what form
(electronic, hard copy, both). If the client requests the report be sent to a third party,
name the third party.

EXAMPLE: If Consultant is retained by an insurance carrier, it may be useful to get

contractual instructions that the Consultant is to give the reports and any
communications only to the carrier and not to its insured (such as a homeowner, building
owner, etc.). If the contract instructs the Consultant not to communicate with anyone
else, it is easier to tell the occupants of the structure that the Consultant cannot advise
them of anything per its contract and that they should talk with the insurer. It is also
important to point out that, if there are such restrictions on communication, they should
be strictly followed and enforced by the Consultant. If there are any situations where
public safety is involved, the Consultant may have to advise the Client that it is obligated
to make disclosure, if the client does not wish to do so. This type of "emergency
disclosure" may also be provided for in the contract.

Will the report include a contaminant remediation protocol?

Items for exclusion consideration in a scope of services section:

Services related to observation or monitoring of remediation contractor

measures for compliance with Consultants proposed remediation protocol is not
within the scope of services unless specifically indicated as an extra service and is
paid for by additional compensation set forth in this agreement
Rooms or areas within the specified location that will not be entered or
evaluated (such as in accessible areas, crawlspaces, attics, roof, etc)
Structural engineering evaluation of the property based on water or moisture
damage
Destructive testing of surfaces or building materials without the written
authorization by the property owner
Testing or sampling for other substances, allergens, particles or fibers not
specifically named in the scope of services

If the Client requests additional services not originally included in the scope of the
consulting services agreement, these changes should be authorized in writing and signed
by the Client (or at a minimum, documented through a Client email note detailing and
authorizing the change in scope of consulting services by the individual who signed the
original consulting services agreement). Consider the same inclusions and exclusions
when drafting changes to the original consulting services agreement.

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NOTE: Under some state laws, an oral change to the scope of services, or one
communicated by email is not sufficient. A signed addendum or attachment would be
required to document and enforce the authorized change.
3.

COMPENSATION

Items for consideration depend on the nature or type of the consulting services agreement
(such as time and materials, firm fixed price, or other contract type), however, all
agreements should state that the consultant will be compensated by the client only for
service specified in the scope of services or any addendums.
Compensation factors to consideration:

Consultants hourly labor rates for services (include all rates for job
categories who will charge to project)
Any premium labor rates for hours charged on evenings, weekends, holidays
at the request of the client
Payment for travel (at hourly rate, all travel expenses, or mileage for local
travel)
Equipment cost (flat hourly rate, included in overhead of fully-burdened
hourly labor rates, or project fixed cost)
Expendable materials (sampling media, PPE, etc.)
Laboratory analysis fees (standard for each analysis/analyte and markup for
expedited turn-around-time)
Shipping costs (rental equipment, samples, reports, etc.)
Report copies (cost per copy if multiple hard copies requested or for third
party)
Statement regarding additional services that are provided at the request of the
client (in writing or verbally) will be compensated at the standard rates and markups.

The following example compensation table is for a time and materials consulting services
agreement using fixed unit rates:
The Consultant shall receive from the Client for the performance of all services rendered
to the Client compensation in accordance with Table 1 rates.

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CONSULTING SERVICES AGREEMENT XXX-XX-2006-001

Table 1. Example Compensation for Consulting Services

ITEM DESCRIPTION OF SERVICES
1
Fully-Burdened Direct Labor Rates
1a
Consulting Industrial Hygienist
1b
Senior Industrial Hygienist
1c
Staff Industrial Hygienist
1d
Industrial Hygiene Technician
2
Other Direct Costs (all G&A and fee included)
2a
Laboratory analysis fees (standard lab turn-around-time [TAT])a
Analysis 1 - Description
Analysis 2 - Description
Analysis 3 - Description
Analysis 4 - Description
Analysis 5 - Description
Analysis 6 - Description
2b
Sampling media
Media 1 - Description
Media 2 - Description
Media 3 - Description
Media 4 - Description
2c
Industrial hygiene equipment and instruments
Instrument/Equipment 1 - Description
Instrument/Equipment 2 - Description
Instrument/Equipment 3 - Description
Instrument/Equipment 4 - Description
2d
Personal protective equipment (PPE)
2e
Overnight shipping of samples to laboratory
2f
Copying costs for additionally requested reports (2 copies of
report provided at no cost)
3
Travel (air, hotel, rental car, parking)
3a
Mileage

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UNIT RATE
$XXX.00/hr
$XXX.00/hr
$XX.00/hr
$XX.00/hr

$XX.00/Sample
$XX.00/Sample
$XX.00/Sample
$XX.00/Sample
$XX.00/Sample
$XX.00/Sample
$XX.00/Sample
$XX.00/Sample
$XX.00/Sample
$XX.00/Sample
$XX.00/day/week/mo
$XX.00/day/week/mo
$XX.00/day/week/mo
$XX.00/day/week/mo
$XXX.00/day
$XX.00/package
$XX/Report
Actual travel cost
$0.XX/mile

CONSULTING SERVICES AGREEMENT XXX-XX-2006-001

ITEM

DESCRIPTION OF SERVICES

UNIT RATE

a Additional cost will apply for Client requested rush TAT for sample for analysis. General mark ups
from Table 1 listed standard TAT costs for rush TAT are as follows: 3-5 days 50%, 1-2 days 75%, 24hour 100%. All requested rush TAT sample analysis is subject to laboratory availability.

4.

INVOICES

The Consultant shall submit an itemized invoice(s) of services performed and expenses
incurred during the period of performance in accordance with Table 1. Consultant may
require advance or progress payments. Invoices are due and payable upon receipt by
Client. On amounts not paid within 30 days of invoice date, Client shall pay interest from
the invoice date until payment is received at a rate of 1.5% per month or, if less, the
maximum rate allowed by law.
5.

COLLECTION

Client shall reimburse Consultant for costs and expenses (including attorneys fees)
incurred in collection under this consulting services agreement.
6.

STANDARD OF CARE

Consultant will exercise the degree of care and skill ordinarily exercised by a duly
(certified industrial hygienist or qualified indoor air quality consultant) performing the
same or similar services at the same time in the same geographic area. Consultant will
not be obligated to perform services not authorized in the consulting services agreement.
7.

LIMITATIONS ON RELIANCE ON DATA COLLECTED

The Consultant and the Client agree that the Consultant is responsible to exercise the
normal standard of care, as defined in Section 6, Standard of Care above) and that all
readings taken and samples collected are only representative of the conditions existing at
the time and location such reading were taken and samples collected. The Consultant is
not responsible for any conditions that existed prior to the time the Consultant performed
the work set forth in this consulting services agreement, or for any conditions that came
into existence after the Consultant performed such services.
8.

NO GUARANTEE (mold specific)

The Client is advised that the consultant provides no guarantee that readings will not
change since mold, mildew and/or fungus are naturally occurring. The Client should
understand that the readings taken and samples collected are only as representative of the
date, time, and location collected.
9.

NO WARRANTY

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As allowed by state law, no warranties or guaranties, express or implied, are made with
respect to any services provided under this agreement, and any implied warranties of
merchantability or fitness for a particular purpose are expressly disclaimed.
10.

DOCUMENTS (property-specific services)

Documents generated by the Consultant are intended for the sole use of Client.
Documents or computerized materials provided to Client in performance of services
under this agreement are for Clients use only for the purposes disclosed to Client as
stated in a Scope of Services. The Client shall not transfer them to others or use them or
permit them to be used at other projects for which they were not prepared, without the
Consultants express written consent. In addition, The Consultant will not accept liability
for any loss, injury, claim or damage arising directly or indirectly from any unauthorized
use or reliance on such documents.
11.

CONFIDENTIALITY AND NON-DISCLOSURE

Any information provided by the Consultant in or pursuant to this consulting services

agreement which is privileged, proprietary, confidential, or otherwise protected by statute
or case law, including but not limited to any technical or pricing information, or any
trademarked or copyrighted material, shall not be disclosed by the Client to any other
person or entity without the express prior written consent of the Consultant.
12.

THIRD PARTY RELIANCE (last italicized sentence/clause is specific to

property services)

Nothing contained in this Agreement shall be construed, nor is intended to give any rights
or benefits to any person or entity, other than to the Client and the Consultant. All duties
and responsibilities set forth and/or undertaken pursuant to this Agreement are for the
sole and exclusive benefit of the Client and the Consultant and for no other person or
entity. The Client agrees not to disclose to any person or entity not a party to the
Agreement any information, data, reports, documents, or other items provided by the
Consultant pursuant to this Agreement without the express prior written consent of the
Consultant. The Client understands and agrees that, in the event of any such disclosure
without the prior written consent of the Consultant, the Consultant shall have no liability
or responsibility to the Client or to any other person or entity as to any liability, damages,
judgments, settlements, fees, costs, expenses, or any amounts whatsoever incurred or
resulting from such disclosure. However, notwithstanding the foregoing, the Client shall
be permitted to use any written reports issued by the Consultant and any attachments or
exhibits thereto to indicate the status of the subject property to the current owner(s),
renter(s), lender(s) or prospective purchaser(s) in response to any duly served
governmental request for information or documentation as to the condition or
remediation of the subject property.

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13.

OTHER CONTRACTORS

Consultant shall not have any duty or authority to direct, supervise or oversee any Client
contractors or subcontractors. However, Consultant may recommend to or advise the
Client of any concern he/she may have regarding contractor's conduct or performance.
Consultants presence shall not relieve other contractors of their responsibilities.
Consultant shall not be liable for failure of Client or contractors to fulfill their
responsibilities, and Client agrees to indemnify, hold harmless and defend Consultant
against any claims arising out of such failures or contractors performance.
14.

INDEMNIFICATION

Client agrees to protect, indemnify, hold harmless and defend Consultant, its employees
and officers, agents, representatives, or heirs from and against any and all liabilities,
judgments, demands, claims, fines, penalties, damages, forfeitures and suits, together
with reasonable attorneys fees and witness fees and other costs and expenses of defense
and settlement, which Consultant may incur, become responsible for, or pay out as a
result of death or bodily injury or threat thereof to any person, destruction or damage to
any property, contamination of or adverse effects on the natural environment, any
violation of local, state or federal laws, regulations or orders, or any applicable foreign
laws, or any other damages claimed by third parties based on or arising in whole or in
part out of Consultants performance under this consulting services agreement or out of
Clients violation of law or breach of this Agreement. The Client shall provide prompt
written notice to the Consultant if the Client becomes aware of any claim, including any
errors, omissions or inconsistencies in the Consultants services under this Agreement.
Client shall at its expense defend any claim or suit resulting from this Agreement and
shall pay any judgment or settlement resulting therefrom. If, after such defense and
payment, it is determined that the damage was caused by Consultants sole or contributory
gross negligence, then Consultant shall reimburse Client for the judgment and reasonable
defense costs in proportion to Consultants negligence. Consultant shall have the right,
but not the duty to participate in any such claim or suit with attorneys of its own
selection. The obligations in this Article survive termination of this Agreement.
15.

LIMITATION OF LIABILITY

With regard to the services to be performed by the Consultant pursuant to the terms of
this Agreement, the Consultant shall not be liable to the Client, or to anyone who may
claim any right due to any relationship with the Consultant, for any acts or omissions in
the performance of services on the part of the Consultant or on the part of the agents or
employees of the Consultant, except when said acts or omissions of the Consultant are
due to willful misconduct or gross negligence of the Consultant. The Client shall hold
the Consultant free and harmless from any obligations, costs, claims, judgments,
settlements, attorneys' fees, and attachments arising from or growing out of such services
rendered to the Client pursuant to the terms of this Agreement or in any way connected
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with the rendering of services, except when the same shall arise due to the willful
misconduct or gross negligence of the Consultant and the Consultant is adjudged to be
liable for willful misconduct or gross negligence by a court of competent jurisdiction.
16.

LIMITATION OF REMEDIES

In the event of Consultants liability, whether based on contract or tort (including but not
limited to, negligence, strict liability or otherwise), Clients sole and exclusive remedy
will be limited to, at the Consultants option, replacement or correction of any Services
not in conformance with this Agreement or to the repayment of the portion of
compensation paid by Client attributable to the nonconforming Services. The Consultant
will not be liable for any other damages, either special, direct, indirect, incidental,
consequential or otherwise, and in no event shall the Consultants liability exceed the
compensation for the nonconforming services.
17.

FORCE MAJEURE

Consultant shall not be responsible for any delay or failure of performance caused by fire
or other casualty, labor dispute, government or military action, terrorism, transportation
delay, inclement weather, Act of God, epidemics, act or omission of Client or its
contractors, or any other cause beyond Consultants reasonable control, and Consultants
compensation shall be equitably adjusted to compensate it for any additional cost it incurs
due to any such delay.
18.

SEVERABILITY

The provisions of this Agreement shall be deemed severable, and the invalidity or
unenforceability of any provision shall not affect the validity and enforceability of any
other provision hereof. If any Section, subsection, sentence, or clause of this Agreement
shall be adjudged illegal, invalid, or unenforceable, such illegality, invalidity, or
unenforceability shall have no effect on the Agreement as a whole or on any Section,
subsection, sentence, or clause hereof not expressly so adjudged.
19.

WAIVER

Any waiver by either party of any provision or condition of this Agreement shall not be
construed or deemed to be a waiver of any other provision or condition of this Agreement
nor a waiver of a subsequent breach of the same provision or condition, unless such
waiver be so expressed in writing and signed by the party to be bound.
20.

AMENDMENTS

No modification of or change in this Agreement, waiver of any of its provisions or

additional provisions shall be valid or enforceable unless previously approved in writing
by the parties to this Agreement or their duly authorized representatives in the form of an
amendment to this Agreement duly signed by the parties hereto.
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21.

SETTLEMENT OF DISPUTES

NOTE: Some consultants may choose not to use the following 3-stage dispute resolution
process or may desire to substitute other contractual language that would allow them to
resolve disputes through direct court action.
In the event of any disputes, controversies, or claims between the Client and the
Consultant relating to or arising out of any of the terms of this Agreement, the Client and
the Consultant agree that they shall engage in the following three-stage dispute resolution
procedure and will not institute or file any legal action or proceeding.
The Client and the Consultant further agree that they will include similar three-stage
resolution dispute provisions in all contracts or agreements with all independent
contractors and consultants they retain to perform any services for, relating to, or arising
from the Scope of Services in the Agreement, as well as require all such independent
contractors and consultants to include such three-stage resolution dispute provisions in all
of the contracts and agreements they enter into with their subcontractors, subconsultants,
suppliers and fabricators as to such work.
The costs of all mediation and arbitration proceedings between the Client and the
Consultant, if required pursuant to this three-stage resolution dispute procedure, shall be
divided equally between the Client and the Consultant, regardless of the results of such
proceedings, or any allocation of fault or damages.
Provision 1 Direct Negotiation
Any dispute, controversy or claim arising out of or relating to this Agreement, or the
breach, termination or invalidity thereof, shall first be resolved through good faith direct
negotiation by the Client and Consultant for 30 days to find conciliatory resolution to the
dispute, controversy or claim. If direct negotiations fail to reach a conciliatory resolution,
then the Client and Consultant agree to enter into nonbinding mediation as described in
Provision 2.
Provision 2 Nonbinding Mediation
The Client and Consultant agree that any dispute, controversy or claim arising out of or
relating to this Agreement shall be submitted to nonbinding mediation unless the Client
and Consultant mutually agree otherwise. The selected mediation service will be agreed
upon by the Client and Consultant and the selected mediation services rules and
procedures will be followed. The Client and Consultant agree to negotiate in good faith
during the mediation process to reach a settlement to the dispute, controversy or claim. If
the Client and Consultant fail to reach a settlement during nonbinding mediation, then
Client and Consultant agree to enter into binding arbitration as described in Provision 3.
Provision 3 Binding Arbitration

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CONSULTING SERVICES AGREEMENT XXX-XX-2006-001

The Client and Consultant agree that any dispute, controversy or claim arising out of or
relating to this Agreement that cannot be resolved or settled in accordance with
Provisions 1 and 2 of this article shall be submitted to binding arbitration conducted in
accordance with the Construction Industry Rules of the American Arbitration Association
to the extent the dispute may relate to construction/remediation. Any other dispute,
controversy or claim will be submitted to binding arbitration conducted in accordance
with the American Arbitration Association rules (the Rules). Arbitration shall be held
in City, State, before a panel of at least one (1) arbitrator. Judgment upon the award
rendered by the panel of arbitrators may be entered in any court having jurisdiction
thereof or application may be made to such court for a judicial acceptance of the award
and an order of enforcement, as the case may be.

22.

GOVERNING LAW (state specific)

This Agreement shall be construed, enforced in accordance with and governed by the
laws of the State of Name.
23.

MISCELLANEOUS CLAUSES

This Agreement represents the entire understanding and Agreement between the parties
relating to the services provided by the Consultant. This Agreement supersedes any and
all prior agreements, whether written or oral, that may exist between the parties regarding
same. No other terms, conditions, prior course of dealings, course of performance, usage
of trade, understandings, purchase orders, or agreement purporting to modify, vary,
supplement, or explain any provision of this Agreement shall be effective unless in
writing and signed by representatives of both parties authorized to amend this Agreement
or provided such modification by email both (where this constitutes a legally binding
agreement).
24.

TERMINATION OF AGREEMENT

In the event that this Agreement is cancelled or modified, the Consultant shall
immediately be paid for any services performed.

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By signing below, the Consultant and Client have hereunto executed this Consulting
Services Agreement (XXX-XX-2006-001).

CLIENT: NAME

Printed Name

Title

CONSULTANT: NAME________

Signature

Printed Name

Signature

Date

Title

Date

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