Subcontractor Terms and Conditions

ACCESS PRO SUPPLY SUBCONTRACTOR TERMS AND CONDITIONS

 

SECTION 1 – APPLICABILITY OF TERMS

1.01 IDENTITY OF THE PARTIES - These Access Pro Supply Subcontractor Terms and Conditions (these “Terms”) are the only terms that govern the provisions of subcontracted services by the applicable subcontractor who is identified on and has executed a Project Scope of Work (“Subcontractor”) with Access Pro Supply, LLC, a Georgia limited liability company (“Contractor”). Contractor and Subcontractor are collectively referred to herein as the “Parties”, and, each a “Party”.

1.02 INTEGRATED AGREEMENT - The applicable Project Scope of Work issued by Contractor to Subcontractor (the “SOW”), the schedules and exhibits attached to the SOW, and these Terms (collectively, this “Agreement”) comprise the entire agreement between the Parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Subcontractor’s general terms and conditions regardless of whether or when Subcontractor has submitted such terms. Any payment to Subcontractor order does not constitute acceptance of any of Subcontractor’s terms and conditions and does not serve to modify or amend these Terms.

1.03 INTENT OF PARTIES - the Parties intend to enter into this Agreement to govern the business relationship between the Parties and establish certain general obligations governing the provision of all the Work (as defined herein) and other services to be performed by Subcontractor for Contractor for Contractor’s various clients, customers, and projects (each, a “Project”) that Contractor and Subcontractor may undertake together from time to time. Subcontractor acknowledges that Contractor may have entered into one or more agreements with a property owner, manager, or other representative authorized to contract for services to be performed at a Project site (as applicable, the “Client”), and such applicable agreements are referred to herein as the “Prime Contract” and collectively with any other such agreement(s), including this Agreement, are referred to herein as the “Contract Documents”, which are explicitly incorporated in this Agreement by reference.

1.04 SUBCONTRACTOR ACKNOWLEDGEMENTS – Subcontractor acknowledges and agrees that: (a)  Subcontractor will receive good and valuable consideration, the receipt, sufficiency, and adequacy of which is hereby acknowledged, by its performance of the SOW; and (b) BY EXECUTING THE SOW OR COMMENCING PERFORMANCE OF THE ANY OF THE WORK IDENTIFIED IN THE SOW, SUBCONTRACTOR EXPRESSLY ACKNOWLEDGES AND AGREES THAT SUBCONTRACTOR HAS READ, UNDERSTOOD, AND HEREBY ACCEPTS THESE TERMS.

SECTION 2 – SUBCONTRACT SCOPE OF WORK AND PRICE

2.01. SCOPE OF WORK – Subcontractor agrees to furnish all work, labor, services, materials, equipment, and supervision required for the prompt and efficient completion of all work provided for in the SOW, including all work necessary or incidental thereto (the “Work”), in strict accordance with this Agreement and the Contract Documents. The Subcontractor shall perform all Work in a safe, efficient, and expedient manner in accordance with all statutes, ordinances, building codes, and other regulations affecting such Work, including but not limited to any of Contractor’s rules, policies, or codes of conduct attached to the SOW, with first quality materials and professionally trained labor.  By acceptance of this Agreement, and the commencement of Work, the Subcontractor acknowledges a complete understanding of its trade, and understands that the Work required may include, without limitation: preparation, demolition, trenching, coring, sealants and sealing of same (including restoration), daily clean-up (which must occur before each day’s end) including removal of all debris associated with the Work in the matter set forth in this Agreement, disposed of offsite in a proper and legal manner, any and all other type of weather protection and environmental needs (i.e., temporary heat, cooling, water, or otherwise, sometimes referred to as winter conditions). Subcontractor is responsible for furnishing all temporary services, maintaining temporary services, and the associated costs thereof. Subcontractor is responsible for disconnecting temporary services upon completion of the Work.

2.02. PRICE – Contractor agrees to pay Subcontractor for the strict performance of the Work the sum(s) stated in the SOW, (the “Scope of Work Price”), subject to final determination of quantities where unit prices apply, and to additions and deductions due to Changed Work (as defined herein) as provided in this Agreement. Payment dates shall be in accordance with the schedule set forth in the SOW. If payment for any of the Work is based on a unit price, Subcontractor agrees to be bound by Client’s measurement of the quantity of Work performed and/or materials provided. If Client does not measure the Work, Subcontractor agrees to be bound by Contractor’s measurement. Subcontractor warrants that the above prices include all applicable sales, use, franchise, excise, and other taxes, which may now or hereafter be levied.  The Scope of Work Price is inclusive of any and all overtime that may be worked by the Subcontractor or any agent, representative, employee, or subcontractor of Subcontractor.

SECTION 3 – PAYMENT

3.01. PAYMENT TERMS – Subcontractor may invoice Contractor for fifty percent (50%) of the Scope of Work Price as agreed upon herein at Substantial Completion of the Work, and may invoice Contractor for the balance of the Scope of Work Price at a reasonable time after the full, final, and satisfactory completion of the Work as described herein. As used herein, the term “Substantial Completion” means the date that the Work is fully completed to the satisfaction of Contractor and Client in accordance with the Contract Documents, and approved and signed off by the any applicable regulatory groups or agencies as ready for use for its intended purpose. Contractor has the right to reduce the Scope of Work Price upon five (5) days’ notice based on and in proportion to any decrease in the price to be paid under the Prime Contract by Client to Contractor related to the Work. Subcontractor agrees that Contractor will pay each portion of the Scope of Work Price that is owed to Subcontractor within thirty (30) days after Contractor’s receipt of a satisfactory invoice from Client and the satisfaction of the conditions precedent set forth herein. All payments from Contractor to Subcontractor shall be subject to the following conditions precedent:

A.    Contractor and Subcontractor agree that payment in full by the Client is a condition precedent to any obligation of Contractor to make any payment to Subcontractor. Subcontractor agrees to bear the risk of any insolvency, bankruptcy, or other inability or unwillingness of the Client to pay Contractor.

B.    Approval and acceptance of the Work by the Client and the Contractor is a condition precedent before any obligation of payment to the Subcontractor accrues. Furthermore, the Work must meet all applicable inspection standards by all applicable inspectors, including, but not limited to code compliance inspections, building inspections, and fire code inspections. Documentary proof that the Work meets or exceeds all applicable inspection standards, in the form completed, approved, and signed on inspection forms issued or required by the applicable inspection authority must be supplied to Contractor before any obligation of payment to the Subcontractor accrues. Any payment made prior to final completion, acceptance, or approval of the Work shall not be construed as acceptance or approval of any part of the Work.

C.    The full and faithful performance of this Agreement, including payment of any amounts owed by Subcontractor to any persons furnishing Work, labor, services, material, or equipment, or for union trust fund payments, is a condition precedent to Subcontractor’s right to receive any progress payment or final payment. Any monies paid to Subcontractor under this Agreement shall be deemed and treated as trust funds, which shall not be diverted by Subcontractor for other purposes until such obligations have been fully discharged. Contractor reserves the right to make payment by joint check or by direct check to Subcontractor’s material suppliers, subcontractors, and any person or entity who has asserted or may assert a right of action against Contractor or Contractor’s surety or who has asserted or may assert lien or stop notice rights in connection with any aspect of the Work.

D.    As a condition precedent to any payment being due, Subcontractor shall execute a lien waiver for the benefit of Contractor and Client. Notwithstanding the foregoing, unless requested by Contractor in writing, lien waivers shall not be required for any invoices with an aggregate value of less than Five-Thousand Dollars ($5,000.00). Upon payment, Subcontractor agrees to otherwise waive all liens and all potential claims of liens, whether known or unknown, that may have accrued to the benefit of Subcontractor.

 

SECTION 4 – SUBCONTRACT TERM AND TIME

4.01 TERM – The term of this Agreement shall commence on the Effective Date (as such term is defined in the SOW), and unless terminated pursuant to the provisions set forth in this Agreement, shall continue until the completion of all Work set forth in the SOW.

4.02 TIME – Time is of the essence of these Terms and the SOW issued hereunder. Subcontractor shall prosecute the Work in a prompt and diligent manner whenever the Work or any part of it becomes available or at such other time or times as Contractor may direct. Subcontractor shall endeavor to promote the general progress of the entire Project and shall not delay or otherwise interfere with or hinder the activities of Contractor or any other subcontractor of Contractor.  All Work shall begin on the commencement date set forth in the SOW (the “Commencement Date”). All Work shall be completed and satisfactory to Contractor and Client on or before the completion date set forth in a the SOW (the “Substantial Completion Date”). If no Substantial Completion Date is specified in the SOW, the Work for that Project shall be completed and satisfactory to Contractor and Client within a commercially reasonable time after the Commencement Date or any other date so identified by Contractor in accordance with the specific schedule established in the Prime Contract. If no Commencement Date is specified in the SOW, or otherwise agreed to in writing, Subcontractor must commence the Work within forty-eight (48) hours of Contractor’s direction to commence Work following the execution of the SOW. Subcontractor agrees to be liable for any expenses incurred by Contractor as a result of Subcontractor’s performance, nonperformance, or delay of any aspect of the Work, including, but not limited to, loss of profit, overhead, supervision, accounting, attorneys’ fees, office, and bonding expenses. 

SECTION 5 – GENERAL SUBCONTRACT PROVISIONS

5.01. SCHEDULE/DELAY – Subcontractor shall submit progress schedules to Contractor for the Work at reasonable times following the Commencement Date and shall cooperate in the preparation of progress schedules when requested through the Substantial Completion Date. If a progress schedule is furnished by Contractor to Subcontractor, Subcontractor must be ready to perform at the times indicated in the schedule. If Contractor shall deem it necessary, Subcontractor, at its own expense and on demand of Contractor, shall provide additional personnel, overtime and additional shifts, and shall expedite the furnishing of labor and materials so as to meet the progress schedule. Subcontractor agrees to reimburse Contractor for any and all damages under the Prime Contract that may be assessed against Contractor by Client which are attributable to or caused in whole or in part by Subcontractor’s failure to perform or delay in performing the Work as provided herein. Payment of such damages by Subcontractor shall not release Subcontractor from its obligation to otherwise fully perform this Agreement. Upon written request by Contractor at any time, Subcontractor shall furnish to Contractor such evidence as Contractor may require relating to Subcontractor’s ability to perform and complete this Agreement in a timely manner. If Subcontractor is delayed in the prosecution or completion of the Work by the act, neglect, or default of Client or of Contractor, or should Subcontractor be delayed waiting for materials required by this Agreement to be furnished by Client or Contractor, or by damage caused by fire or other casualty for which Subcontractor is not responsible, or in the event of a lock-out by Contractor, then the time for completion of the Work shall be extended by the number of days that Subcontractor has thus been delayed. However, no extension of time shall be made unless written notice of the delay is presented to Contractor within forty-eight (48) hours of the commencement of the applicable delay. Under no circumstances shall the time for completion of the Work be extended in an amount that will prevent Contractor from completing the Project within the time that Client allows Contractor for such completion. The sole remedy for such delays of Subcontractor shall be an extension of time for completion of the Work. However, if and only if Contractor obtains compensation from Client on account of a delay, Subcontractor shall be entitled to such portion of the additional compensation received by Contractor from Client for the delay as is equitable as determined by the sole and exclusive direction of Contractor. In no event shall Subcontractor be entitled to any amount in excess of that received by Contractor from Client. Nothing herein contained shall require Contractor to make any Claim (as defined herein) against Client for delays relating to the Work. The failure of Contractor to make or prosecute any such Claim against Client shall not entitle Subcontractor to any Claim against Contractor.

5.02. CHANGES AND EXTRA WORK – Contractor, without invalidating these Terms or the SOW, may order changes in the Work within the general scope of this Agreement and the SOW consisting of additions, deletions, or other changes as determined by Contractor in its sole discretion (the “Changed Work”). The Scope of Work Price and the time for performance of the Work may or may not be adjusted by Contractor accordingly as Contractor deems fit; however, Subcontractor shall adhere strictly to the Contract Documents unless a change is authorized by Contractor in writing. Prior to commencement of any Changed Work, Subcontractor shall submit to Contractor a written claim for adjustment to the Scope of Work Price and the time for performance of the Changed Work. Any such claim shall be submitted promptly and in a manner consistent with the requirements of the Contract Documents. If Subcontractor claims that performance of any Changed Work entitles it to additional compensation or to an extension of the time for performance of the Changed Work, Subcontractor shall submit a written request for such compensation or extension of time prior to undertaking such Changed Work.  Contractor shall have the option, in its sole discretion, to accept or refuse such request for additional compensation or time by Subcontractor.  If Contractor refuses to grant such requested compensation or time, Subcontractor may either (a) perform the Changed Work without any additional compensation or extension of the time other than such additional compensation and time that is expressly authorized in writing by Contractor, or (b) complete its Work without performing the Changed Work, in which event Contractor shall be permitted to utilize any method or means to complete the Changed Work using its own employees, agents, representatives, subcontractors, or other third-parties to complete the Changed Work. In such event, Subcontractor shall cooperate in good faith with Contractor to facilitate the completion of the Changed Work and shall not impede or interfere with the completion of the Changed Work in any way.  No Claim, dispute, or controversy shall interfere with the progress or performance of the Work, including any claim associated with any Changed Work. Subcontractor shall proceed with the Work as directed by Contractor, diligently prosecute the Work to completion, and then submit any dispute for resolution in accordance with the dispute provisions of this Agreement. Failure to so proceed shall amount to a default under this Agreement. No change or revision to the Work shall release or exonerate, in whole or in part, any surety on any bond given in connection with this Agreement. Neither Contractor nor Client shall be under any obligation to notify the surety or sureties of any such change. Notwithstanding anything to the contrary contained herein, Subcontractor shall not substitute, delete, add, or in any other way change any Work without the written approval by Contractor, signed by a corporate officer or the representative who signed this Agreement on behalf of Contractor.

5.03. LIENS – Subcontractor shall defend, indemnify, and hold Contractor and Client harmless from and against: (a) any and all Claims, arising by reason of any Claims, liens, stop notices, or bond claims for Work, labor, services, material, or equipment used or furnished to be used on the Project, or union trust fund payments, arising from or relating to the Work, and (b) all incidental or consequential damages resulting to Contractor or Client from such Claims, liens, stop notices, or bond claims. In the event that any of Subcontractor’s materialmen, laborers, contractors, suppliers, or mechanics claim and/or file a lien and/or notice of intention to lien the premises associated with the Work, Subcontractor shall immediately, and in no event later than three (3) days following the filing or mailing of a notice of lien or intention to file lien, pay said claimant(s) and furnish Contractor with a full lien release or releases, in form satisfactory to Contractor, from such claimant(s) or obtain a bond to discharge the lien and provide proof thereof to Contractor. If Subcontractor fails to do so, Contractor may use whatever means it deems appropriate to cause the suit, stop notice, or lien to be removed or dismissed. Any and all resulting cost and expense, including Contractor’s reasonable attorneys’ fees, shall be immediately due and payable to Contractor by Subcontractor. Subcontractor may litigate any such suit, stop notice, or lien against the party who files it, provided he first causes its effect and encumbrance to be entirely removed from the Work and does such other things as may be necessary to cause Client not to withhold any monies due to Contractor by reason of such suits, stop notice, or lien.

5.04. DEFAULT/RECOURSE BY CONTRACTOR – If Subcontractor: (a) breaches any provision this Agreement; (b) refuses or neglects to supply a sufficient number of properly skilled workers or a sufficient quantity of materials of proper quality; (c) becomes the subject of bankruptcy or receivership proceedings, commits any act of insolvency, or  makes an assignment for the benefit of creditors without Contractor’s consent; (d) fails to make prompt payment to persons furnishing Work, labor, services, material, or equipment to Subcontractor; (e) fails in any respect to properly and diligently prosecute the Work; or (f) becomes delinquent with respect to contributions or payments required to be made to any health and welfare, pension, vacation, apprenticeship, or other employee benefit program or trust, Subcontractor shall be in default hereunder. If Subcontractor fails to cure such default within forty-eight (48) hours after Contractor provides written notice of the default, or if Subcontractor fails to diligently pursue to completion any cure agreed to by Contractor, then without further notice of any kind, Contractor at its option, may: (y) engage any other party to provide any Work, labor, materials, and equipment that Contractor in its sole discretion deems necessary under the circumstances and deduct the cost thereof from any money then due or thereafter to become due to Subcontractor; or (z) terminate Subcontractor’s right to proceed with the Work. If Contractor elects to terminate Subcontractor’s right to proceed with the Work, Contractor shall have the right to enter any of Subcontractor’s facilities or locations on the Project, and, for the purpose of completing the Work, take possession of all materials, tools, and appliances of Subcontractor, and may employ any other person or persons to finish the Work and provide needed materials. In case of such termination, Subcontractor shall not be entitled to receive any further payment under this Agreement until the services undertaken by Contractor in the Prime Contract is completely furnished and paid for by Client. At that time, if the unpaid balance of the Scope of Work Price exceeds the expenses incurred by Contractor in finishing the Work, the excess shall be paid by Contractor to Subcontractor. If such expense exceeds the unpaid balance, then Subcontractor shall promptly pay to Contractor the amount by which such expense exceeds the unpaid balance. Expenses incurred by Contractor in finishing the Work shall include expenses incurred by Contractor for furnishing the materials, finishing the Work, attorneys’ fees, and any other damages sustained by Contractor by reason of Subcontractor’s default, plus a reasonable markup, with a markup of up to twenty percent (20%) being deemed reasonable hereunder, for overhead and administrative costs on any such expenses. Contractor shall be entitled to place a lien upon any materials, tools, and appliances of Subcontractor that Contractor has taken possession of, to secure the payment of any amounts due under this Agreement.

5.05. WITHHOLD AND OFFSET – Contractor may withhold, or on account of subsequently discovered evidence nullify, the whole or a part of any payment otherwise due under this Agreement to such extent as may reasonably appear necessary to protect Contractor from loss, including costs and attorneys’ fees on account of: (a) defective Work not remedied by Subcontractor; (b) Claims filed, or reasonable evidence indicating the probable filing of a Claim, against Subcontractor; (c) failure of Subcontractor to make payments properly to its subcontractors or for material, labor, equipment, or union trust fund benefits; (d) Contractor’s reasonable doubt that the SOW can be completed by the Substantial Completion Date for the balance of the Scope of Work Price then unpaid; (e) damage to another subcontractor Contractor; (f) Subcontractor’s failure to achieve sufficient progress with the Work to meet the schedule for such Work, or timely completion of the Project; (g) any failure by Subcontractor to fully comply with all applicable safety rules, regulations, and policies under the Contract Documents relating to the Project; or (h) failure by Subcontractor to maintain insurance, as required by this Agreement, or such other insurance that may be required from time to time pursuant to the terms of any other Contract Document, including Exhibit B attached to the SOW. When the above conditions are removed, such amounts as are then due and owing shall be paid or credited to Subcontractor, if applicable.

5.06. WORK FOR CLIENT – Subcontractor shall not engage in any work, service, or other activity directly or indirectly for the Client or at the Client’s direct or indirect instruction without prior written consent from Contractor during the pendency of the Prime Contract and this Agreement and for a period of two (2) years following the Contractor’s completion of all services under the Prime Contract for such Client.

5.07. SUSPENSION OR TERMINATION OF PRIME CONTRACT – If for any reason the Prime Contract or any part of the Contract Documents is suspended or terminated prior to completion of the Work or a Project, Subcontractor shall be entitled to payment only for that part of the Work which Subcontractor has actually completed and for which Contractor has received payment from Client. However, if Contractor receives additional compensation or damages from Client on account of such suspension or termination, Subcontractor shall not be entitled to receive from Contractor any part of the additional compensation or damages except such amounts that are payable to Subcontractor for Work performed by Subcontractor prior to the date of suspension or termination. This provision shall not require Contractor to make any Claim against Client for additional compensation or damages in the event of suspension or termination, and failure of Contractor to prosecute such a Claim against Client shall not entitle Subcontractor to any Claim for additional compensation or damages against Contractor or Client.

5.08. TERMINATION FOR CONVENIENCE – Contractor reserves the absolute right to terminate this Agreement for any reason. In the event of termination without cause, (a “Termination for Convenience”), Subcontractor shall be entitled to payment, in any amount not to exceed the Scope of Work Price, calculated as follows: (a) the direct, actual cost of that part of the Work actually completed by Subcontractor in accordance with the Contract Documents; plus (b) other reasonable costs actually incurred by Subcontractor in connection with the Work (excluding legal and accounting fees, if any) and allowed under the Contract Documents; plus (c) twenty percent (20%) of such costs referred to in subpart (a) above for overhead and profit; minus (d) the amount of any payments made to Subcontractor prior to the date of the Termination for Convenience. Subcontractor shall not be entitled to any Claim or claim of lien against Contractor, Client, or the Project for any additional compensation or damages in the event of Termination for Convenience under this Section 5.08. Termination for Convenience shall occur and be effective upon written notice from Contractor to Subcontractor of such termination. Upon receipt of written notice of Termination for Convenience, Subcontractor shall immediately discontinue the Work, provide reasonable cooperation and assistance to Contractor in transitioning the Work to an alternate independent contractor, and endeavor to cancel all existing orders and contracts on terms satisfactory to Contractor, or at Contractor’s option, assign such orders and contracts to Contractor. If this Agreement is terminated by Contractor for default and if it is later determined that the default termination was wrongful, such default termination automatically shall be converted to and treated as a Termination for Convenience under this Section 5.08. In such event, Subcontractor shall be entitled to receive only the amounts payable under this Section 5.08 for a Termination for Convenience and Subcontractor specifically waives any Claim for any other amounts or damages, including any Claim for consequential damages, expectancy damages, or lost profits.

5.09 EFFECT OF EXPIRATION OR TERMIANTION – Upon expiration or termination of this Agreement for any reason, Subcontractor shall promptly: (a) deliver to Contractor all documents, work product, and other materials, whether or not complete, prepared by or on behalf of Subcontractor in the course of performing the Work or any other services under this Agreement; (b) return to Contractor all Contractor-owned and Client-owned property, equipment, or materials in its possession or control; (c) remove any Subcontractor-owned property, equipment, or materials located at Contractor’s and Client’s locations, including, but not limited to, the respective Project sites identified in the SOW; (d) deliver to Contractor, all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on any Confidential Information (as defined herein); (e) provide cooperation and assistance to Contractor and Client, upon request, in transitioning the Work and any other remaining obligations under this Agreement to an alternate subcontractor; (f) on a pro rata basis, repay the Scope of Work Price and all other fees, costs, and expenses paid in advance for any Work which have not been provided, performed, and accepted by Contractor and Client; and (g) certify in writing to Contractor that it has fully complied with all requirements of this Section 5.09.

5.10. WARRANTIES – Subcontractor warrants, for a minimum period of twelve (12) months from the date of completion of all Work under the Prime Contract and delivery to Client, that all materials and Work furnished by Subcontractor strictly comply with all requirements of the Contract Documents and are of good and workmanlike quality and free from defects. Subcontractor further warrants that all materials and equipment furnished under this Agreement will be new and free from any defects, and Subcontractor warrants that such materials and equipment are merchantable and fit for the purpose for which each is used. All Work shall be subject to inspection and approval by Contractor and Client. Defective or nonconforming materials or Work shall, at Contractor’s option, immediately upon discovery, be repaired or replaced at Subcontractor’s sole expense, to the satisfaction of Contractor and Client. The cost to repair any adjacent Work or materials disturbed or damaged during or as a result of any such corrective work also shall be paid by Subcontractor. All corrective work and materials are guaranteed by Subcontractor in the same manner. No inspection, failure of inspection, or payment to Subcontractor shall be deemed a waiver of any of the rights or obligations, otherwise arising under this Section 5.10, and nothing in this Section 5.10 shall exclude or limit any warranties implied by Applicable Law (as defined herein). If Subcontractor fails or refuses, within forty-eight (48) hours after written demand by Contractor, to correct any defective or nonconforming materials or Work, or otherwise provide a corrective action plan and schedule to be agreed upon by Contractor and Subcontractor, Contractor may, without further notice or demand cause such defective or nonconforming materials or Work to be repaired or replaced by others. Subcontractor shall immediately reimburse Contractor for the cost of such repair or replacement. These warranties shall not reduce and are in addition to Subcontractor’s liability under any other provisions of this Agreement, the Contract Documents, under any Applicable Law, or for latent defects. Neither the final payment to Subcontractor nor the expiration or termination of this Agreement shall relieve Subcontractor of its warranty obligations under this Section 5.10.

5.11. MATERIALS AND WORK FURNISHED BY OTHERS – If the Project includes installation of materials or equipment furnished by third-parties or Work to be performed in areas to be constructed or prepared by third-parties, Subcontractor shall examine and accept, at the time of delivery or first access, the items or areas so provided and shall thereafter handle, store, and install the items, and protect the areas, with the skills and care required to insure satisfactory completion of the Work. Use of such items or commencement of Work by Subcontractor in such areas shall be deemed to constitute acceptance thereof by Subcontractor and shall be treated as Work under this Agreement.

5.12. PROTECTION OF WORK – Subcontractor shall secure, protect, and assume full responsibility for the Work at all times prior to final acceptance by Client and Contractor. Subcontractor shall protect the Work and other personnel of Contractor, Client, and other third-parties from Subcontractor’s operations. Subcontractor shall be liable for any loss or damage to any Work or materials in place or to any equipment and/or materials on the Project caused by Subcontractor or its agents, employees, subcontractors, material suppliers, or guests. Subcontractor shall be responsible to protect its Work from any foreseeable damage, including weather, wind, frost, or water damage. If water causes damage to the Work, the Subcontractor shall be responsible for the cost to remedy all damages caused thereby, including, but not limited to, testing and remediation of mold and toxic substances before and after remediation occurs.

5.13. INDEMNIFICATION –

1. All Work covered by this Agreement done at the Project or in preparing or delivering materials or equipment, or any or all of them, to the Project shall be at the risk of Subcontractor exclusively until the Work is completed and accepted by Contractor and Client.
2. Subcontractor shall defend, indemnify, and hold harmless Client and Contractor, including their respective officers, directors, shareholders, managers, members, agents, employees, affiliates, parents, and subsidiaries, and each of them (hereinafter the “Indemnified Parties”), of and from any and all claims, demands, causes of action, penalties, citations, damages, costs, expenses, attorneys’ fees, losses, or           liability, of every kind and nature whatsoever (“Claims”) arising out of or in connection with, or allegedly arising out of or in connection with Subcontractor’s operations to be performed under this Agreement for, including but not limited to:

1. Claims related to personal injury, including, but not limited to, bodily injury, emotional injury, sickness or disease, or death to persons, including, but not limited to, any employees or agents of Subcontractor, Client, Contractor, or any other subcontractor of Contractor, and/or damage to property of  anyone (including loss of use thereof), caused or alleged to be caused in whole or in part by any act or omission of Subcontractor or anyone directly or indirectly employed by Subcontractor or anyone for whose acts Subcontractor may be liable;
2. Claims, penalties or fines imposed on account of the violation of any Applicable Law caused by the action or inaction of Subcontractor or any of its principals, officers, employees or representatives;
3. Claims for infringement of any intellectual property rights of any third-party that may be brought against any of the Indemnified Parties arising out the Work, caused or occasioned by Subcontractor;
4. Claims, liens, stop notices, and bond or surety Claims for Work, labor, services, material, or equipment used or furnished to be used on the Project, including all incidental or consequential damages resulting to any of the Indemnified Parties from such Claims, liens, stop notices and bond claims; and
5. Claims arising from or relating to any failure by Subcontractor to comply with any term or provision of this Agreement, the Prime Contract, or any of the other Contract Documents.

3. The indemnification provisions above shall extend to Claims occurring after this Agreement is terminated as well as while it is in force. Such indemnity provisions apply regardless of any active and/or passive negligent act or omission of Client or Contractor or their agents or employees. Subcontractor, however, shall not be obligated under this Agreement to indemnify Client or Contractor for Claims arising from the gross negligence or willful misconduct of Client or Contractor or their agents, employees, or independent contractors who are directly responsible to Client or Contractor, or for defects in design furnished by such persons.
4. The indemnity obligation set forth in this Section shall not be limited by the insurance requirements set forth elsewhere in this Agreement.
5. The Indemnified Party shall have sole control of the prosecution or defense of any Claim brought by or against such Indemnified Party with regard to any portion or subject matter of this Agreement, and Subcontractor shall not enter into any settlement without the prior written consent of the Indemnified Parties.
6. The rights and remedies set forth in this Section 5.13 shall be cumulative of any other rights and remedies between the Parties. Reliance on any rights or remedies set forth in this Section 5.13 shall not preclude the enforcement of any other rights or remedies set forth elsewhere in this Agreement.

 

5.14. CLEANUP – At all times during the course of a Project, Subcontractor shall perform the Work so as to maintain the Project area in a clean, safe, and orderly condition. Upon completion of the Work, Subcontractor shall remove from the Project area all temporary structures, debris, and waste incidental to its operation and shall clean all surfaces, fixtures, equipment, and facilities of the Work. Contractor may order Subcontractor to clean up its area of the Project at any time Contractor deems such action necessary. If Subcontractor fails to perform cleanup within twenty-four (24) hours after notification from Contractor to do so, Contractor may proceed with that cleanup in any reasonable manner, and the cost thereof shall be charged to Subcontractor and deducted from any monies due under this Agreement. If Contractor is unable to determine which of its subcontractors are responsible for the cleanup of a certain Project area, Contractor may apportion the cost of such cleanup in any manner it determines to be reasonable, in its sole and absolute discretion, amongst Subcontractor and Contractor’s other subcontractors.

5.15. ASSIGNMENT OF CONTRACT – Subcontractor shall not, without the prior written consent of Contractor, which may be withheld in the sole discretion of Contractor, assign, transfer, delegate, or subcontract (including without limitation by merger, operation of law, or otherwise) all or any portion or part of the Work, these Terms, the SOW, or any payments to be received by Subcontractor hereunder. Any purported assignment, transfer, or subcontracting in violation of this Section 5.15 shall be null and void.  Contractor may assign or transfer the whole or part of this Agreement, and its rights hereunder, to any person, corporation, partnership, limited liability company, or other entity. In the event Contractor does permit any further subcontracting by Subcontractor, nothing in this Agreement shall create any contractual relationship between Contractor and any lower tier subcontractor or any obligation on the part of Contractor to pay any lower tier subcontractor. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.

5.16. INDEPENDENT CONTRACTOR – It is understood and acknowledged that in providing the Work, Subcontractor will act in the capacity of an independent contractor and not as an employee or agent of Contractor. Subcontractor shall control the conditions, details, and means by which Subcontractor performs the Work. Contractor shall have the right to inspect the Work as such progresses. Subcontractor has no authority to commit Contractor or Client, or to bind Contractor or Client, to any obligation or liability or to act for or on behalf of Contractor or Client in any manner. Subcontractor and its employees and subcontractors, if such are permitted, shall be ineligible for and shall not receive any employee benefits from Contractor or Client, and Subcontractor shall be solely responsible for the payment of all taxes, FICA, federal and state unemployment insurance contributions, state disability premiums, and all similar taxes and fees relating to the fees paid to Subcontractor hereunder. Contractor and Subcontractor hereby expressly acknowledge and agree that this Agreement will not be construed to create any employment relationship, partnership, joint venture, or agency relationship between them.

5.17. GOVERNING LAW AND DISPUTE RESOLUTION –

A.  Should any dispute arise between the Parties during or after the pendency of this Agreement, the Parties agree to meet to discuss the issues and make good faith efforts to resolve the dispute informally through discussion or mediation. Should such efforts be unsuccessful, all disputes arising out of or in connection with this Agreement, or the other Contract Documents, including any question regarding their existence, validity, interpretation, scope, or termination, shall be finally resolved by arbitration before the American Arbitration Association (the “AAA”) pursuant to the AAA’s, then-in-effect, Construction Industry Arbitration Rules or other applicable AAA rules. The place of arbitration shall be Cherokee County, Georgia, or such other location as is mutually agreeable to the Parties. The language of arbitration shall be English. Arbitration shall be commenced by a request for arbitration by the claimant Party and delivered to the respondent Party by statutory overnight delivery pursuant to the terms of Section 5.18. The request for arbitration shall set out the nature of the Claim(s) and the relief requested. The arbitral tribunal shall consist of one (1) arbitrator, to be mutually agreed upon by the Parties within thirty (30) days of the receipt of notice by the respondent Party. If the arbitrator is not selected within thirty (30) days, the AAA shall, upon the request of any Party, make the selection. Any award of the arbitral tribunal shall be final and binding on the Parties. The Parties undertake to carry out any award without delay. Confirmation and enforcement of any award may be sought in any court of competent jurisdiction. The existence of a dispute between the Parties shall not relieve the complaining Party of any duty or obligation in this Agreement, including the obligation of continuing to perform the Work.

B.   In the event that any arbitration, suit, or other action is instituted in connection with any controversy arising out of this Agreement, or to interpret or enforce any rights under this Agreement, or any Applicable Law related to this Agreement, the Parties agree that the validity, performance, construction, and effect of this Agreement shall be governed by the substantive laws of the State of Georgia without regard to the provisions for choice of law thereunder. The Parties further agree that a Claim to enforce any award pursuant to this Section 5.17, or any other Claim which cannot be arbitrated pursuant to the terms of this Section 5.17, must be brought exclusively in the courts in and for Cherokee County, Georgia, or the U.S. District Court for the Northern District of Georgia. The Parties irrevocably consent to the personal jurisdiction of such courts with respect to any Claim arising out of or in connection with this Agreement, including, without limitation, regarding the breach, termination, or validity of this Agreement, and waives any Claim that such court is an improper or inconvenient venue or forum.

C.   If a suit, action, arbitration, or other proceeding of any nature whatsoever is instituted in connection with any controversy arising out of this Agreement, or to interpret or enforce any rights under this Agreement, or Applicable Law, the prevailing Party shall recover all reasonable attorney’s fees and costs actually incurred. Contractor and Subcontractor specifically intend and agree that O.C.G.A. § 13-1-11 shall not apply to the award of attorney’s fees or costs and that no portion of this Agreement shall be considered a note or evidence of other indebtedness for the purposes of any attempt to enforce the provisions of O.C.G.A. § 13-1-11.

 

5.18. NOTICES – All notices permitted or required under this Agreement and the Contract Documents shall be in writing and may be accomplished by any of the following methods: (a) hand delivery; (b) first class, regular mail of the United States Post Office; or (c) Federal Express or United Parcel Service priority overnight delivery service.  A copy of any such notice shall also be sent to the email address for the receiving Party as provided below.   

            Notice shall be addressed:

            If to Contractor:          Access Pro Supply, LLC

                                                1500 Airport Drive, Suite 200

                                                Ball Ground, Georgia 30107

                                                Attn: Kathy Houston

Email: kathy.houston@ameribrandsgroup.com

 

With email copy to:     FLINT, CONNOLLY & WALKER, LLP

            131 East Main Street

            Canton, Georgia 30114

            Attn: David L. Walker, Jr.

            Email: dwalker@fcwlawfirm.com

 

            If to Subcontractor:     To the address and persons set forth in the SOW.

 

5.19. ABSENCE OF CONFLICTING AGREEMENTS – The Parties hereby warrant and covenant that their respective execution, delivery, and performance of this Agreement does not and shall not result in a breach of the terms, conditions, or provisions of any agreement, instrument, order, judgment, or decree to which such respective Party is subject to.

5.20. COMPLIANCE WITH APPLICABLE LAW – Subcontractor represents and covenants that it is currently in compliance with and that it will remain in compliance with all applicable laws, regulations, land disturbance restrictions, zoning restrictions, environmental standards and regulations, erosion and sedimentation regulations, and ordinances of all federal, state, and local authorities, including but not limited to Federal litigation laws, OSHA requirements and the Occupational Safety and Health Act of 1970 and any amendments thereto pertaining to labor, verification requirements, record keeping, health, safety, and all other standards promulgated thereunder (collectively, “Applicable Law”). Subcontractor has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Subcontractor shall promptly pay all fees, taxes, charges, damages, and penalties that may be assessed against Subcontractor or against Contractor or Client based on Subcontractor’s performance of the Work and fulfillment of these Terms or the SOW. As a condition of accepting this Agreement, Subcontractor agrees not to discriminate against any individual with respect to hire, discharge, compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, age, or national origin. 

5.21. ENVIRONMENTAL, AND EQUAL EMPLOYMENT OPPORTUNITY REGULATIONS – Subcontractor shall, at its expense, conform to all Applicable Laws related to safety, environmental, hazardous materials, disadvantaged business, affirmative action, non-discrimination, and equal employment opportunity regulations or requirements promulgated by any federal, state, or local governmental authority that are in any manner applicable to this Agreement, the Project, or to the Work.  Subcontractor shall indemnify and hold harmless Contractor and Client for any such Claims made against Contractor or Client during the pendency of this Agreement and for any such Claims arising from the Contract Documents, Project, or Work at any time.

5.22. WAIVER AND SEVERABILITY– A waiver by Contractor of any breach of this Agreement or the other Contract Documents by Subcontractor shall not constitute a waiver of any subsequent breach of the same or any other provisions of this Agreement. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege available to Contractor arising from this Agreement operates or may be construed as a waiver thereof. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under Applicable Law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under such Applicable Law, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be reformed, construed, and enforced as if such invalid, illegal, or unenforceable provision had never been contained herein.

5.23. INSOLVENCY OF SUBCONTRACTOR –

A.    In the event Subcontractor becomes a “debtor” in a case under Title 11 U.S.C., the Bankruptcy Code, when some performance by Subcontractor is due under this Agreement, Contractor is entitled to seek on an expedited basis an order of the bankruptcy court requiring assumption or rejection of the subcontract. Adequate assurance of future performance, within the meaning of 11 U.S.C. § 365, requires each of the following:

                        i.         Subcontractor as debtor-in-possession or its trustee continues to provide and pay for, on a timely basis, all labor, equipment, materials and tools required to complete the Work in accordance with this Agreement;

                       ii.         Subcontractor continues to provide an adequate force of skilled workers to complete the Work in accordance with all requirements of this Agreement;

                     iii.         Subcontractor continues to provide Contractor with scheduling information and continues to perform the Work in conformance with Contractor’s progress schedule and all revision or changes made thereto;

                      iv.         Subcontractor keeps current all payments for sales, consumer, and use taxes and payments required by all union contracts; obtains and pays for all necessary permits, fees, licenses, and inspections, and pays for and maintains in full force and effect all insurance policies required by this Agreement;

                       v.         Subcontractor continues to remain solely responsible for its construction means, methods, techniques, sequences, and procedures;

                      vi.         Subcontractor continues to comply with the provisions of this Agreement;

                    vii.         Subcontractor continues to furnish and pay for all temporary services and facilities required by this Agreement;

                   viii.         Subcontractor continues to arrange for timely procurement of materials and equipment, and to furnish competent and knowledgeable staff and superintendents; and

                      ix.         Subcontractor shall provide Contractor with weekly reports, signed under penalty of perjury, documenting that all required payments are current.

B.    It is expressly agreed that if this Agreement is rejected by such Bankruptcy Court, the provisions of this Agreement with respect to Section 5.04 shall be applicable to the fullest extent permitted by Applicable Law. Contractor may recover against any sums due or to become due Subcontractor all costs incurred in pursuing any of the remedies provided hereunder including but not limited to reasonable overhead, profit, and actual attorneys’ fees incurred as a result of Subcontractor’s non-performance. Subcontractor shall be liable for the payment of any amount by which such cost may exceed the unpaid balance of the Scope of Work Price.

C.    Because time is of the essence in this Agreement, in the event of rejection of this Agreement, the rejection order shall also provide Contractor with immediate termination of the automatic stay to use materials, implements, equipment, appliances, or tools, furnished by or belonging to Subcontractor, to complete the Work. In the event the Bankruptcy Court’s rejection order does not so provide or the rejection occurs by operation of law, Contractor is entitled to obtain an order terminating the automatic stay on ex parte application, without notice to Subcontractor, for cause based upon the rejection.

D.    Contractor reserves all rights and remedies possessed by or available to Contractor by Applicable Law as against Subcontractor, its sureties, and insurers, including without limitation, rights of set-off, to retain moneys, to amend this Agreement, and reserves all other remedies available under Applicable Law.

 

5.24. RESTRICTIVE COVENANTS; INTELLECTUAL PROPERTY RIGHTS –

 

A.   All non-public, confidential, or proprietary information of Contractor and Client (“Confidential Information”), including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates disclosed by Contractor or Client to Subcontractor, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, or otherwise learned by Subcontractor in providing the Work, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement is confidential and solely for Subcontractor’s use in performing this Agreement. Confidential Information may not be disclosed or copied by Subcontractor or its principals, agents, employees, affiliates, or representatives unless authorized by Contractor and Client in writing. Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of Subcontractor’s breach of this Agreement; (ii) is obtained by Subcontractor on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; or (iii) Subcontractor establishes by documentary evidence, was in Subcontractor’s possession prior to Contractor’s disclosure hereunder. Upon Contractor’s request, Subcontractor shall promptly return all documents and other materials received from Contractor. Contractor shall be entitled to injunctive relief for any violation of this Section.

B.   Subcontractor assigns to Contractor, Subcontractor’s entire right, title, and interest in any invention, technique, process, device, discovery, improvement, or know-how, whether patentable or not, hereafter made or conceived solely or jointly by Subcontractor while working for or on behalf of Contractor, which relate to, is suggested by, or results from matters set out the SOW and depends on Subcontractor’s knowledge of any Confidential Information, or the use of any Contractor equipment, supplies, facilities, information, or materials.

C.   Subcontractor understands and acknowledges that because of Subcontractor’s services performed and its relationship with Contractor, Subcontractor will have access to and obtain information regarding customers of Contractor, including, without limitation, any Client. Subcontractor understands and acknowledges that the loss of, or interference with, any customer relationship or goodwill will cause significant and irreparable harm to Contractor. Accordingly, Subcontractor agrees, covenants, and warrants that during the term of this Agreement, and for a period of twenty-four (24) months after the termination or expiration of this Agreement, Subcontractor, and its officers, agents, principals, owners, and members, will not, directly or indirectly, solicit or contact, or attempt to solicit or contact, using any other form of oral, written, or electronic communications, any Client or any other current, former, or prospective customer of Contractor for the  purpose of offering goods or services similar to the Work or competitive with those goods or services offered by Contractor to its customers. Prohibited communications subject to this Section 5.24 include, but are not limited to, email, regular mail, express mail, telephone, fax, and social media. Subcontractor further understands that any communication or solicitation of any Client or any of Contractor’s other customers outside the scope of Subcontractor’s services under this Agreement would constitute a material breach of this Agreement.

 

5.25. POWER TO ENTER INTO AGREEMENT – The Parties represent to one another that they have the power and are duly authorized to enter into this Agreement with regard to all matters described herein upon the terms set forth and that the persons executing this Agreement are the authorized agents of the respective Parties for the purposes of executing this Agreement. The Parties also acknowledge and agree that this Agreement constitutes a valid and legally binding obligation of the each Party, enforceable in accordance with its terms.

5.26. FURTHER ASSURANCES – Each of the Parties agree to do all such things, take all such actions, and to make, execute, and deliver such other documents and instruments as shall be reasonably requested by any other Party to carry out the provisions, intent, and purposes of this Agreement.

5.27. MODIFICATION OF AGREEMENT – This Agreement may not be changed, modified, amended, or altered except by a further written agreement signed by the Parties hereto.

5.28. ACKNOWLEDGMENTS – Each of the Parties has received independent legal advice as to the nature and obligations of this Agreement, including the documents referred to herein or annexed hereto, and each has been fully informed of its respective legal rights, obligations and liabilities as set forth herein and therein.  The Parties have entered into this Agreement freely and voluntarily and of their own free will and accord without any threat, force, or duress in any form or nature whatsoever. In the event of an ambiguity or question of intent, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party hereto by virtue of the authorship of any of the provisions of this Agreement.

5.29. CONSTRUCTION – The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning.  Each of the Parties represents to the other that it is not aware of any fact, circumstance, Applicable Law or Claim that would cause any provision of this Agreement to be void or unenforceable for any reason.  The headings used in this Agreement are merely for the convenience of the Parties, are not intended to have any substantive meaning, and shall not be considered in interpreting the substantive terms of this Agreement. Words used in this Agreement in the present tense include the future as well as the present, words used in the masculine gender include the feminine and neuter, and the singular number includes the plural and the plural the singular.

5.30. SURVIVAL – Any provision that, in order to give proper effect to its intent, should survive the expiration or termination of this Agreement, will survive such expiration or termination for the period specified therein, or if nothing is specified for a period of twelve (12) months after such expiration or termination.

5.31. ENTIRE AGREEMENT, ORDER OF AUTHORITY, AND MERGER – The Contract Documents, including these Terms, the SOW, and any exhibits, annexes, and schedules attached to the SOW, constitute the complete agreement and understanding of the Parties, regarding the subject matter hereof, and supersede all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. To the extent that any provision of this Agreement conflicts with any provision of the Prime Contract, the Prime Contract shall control. In the event of any conflict between these Terms and any other of the Contract Documents, these Terms shall control. The Parties represent and warrant that they have not relied upon any, and there are no, written or oral statements, promises, representations, conditions, inducements, or agreements other than those expressed in the Contract Documents.

5.32. DISCLAIMER AND LIMITATION OF LIABILITY AND DAMAGES –

A.  Subcontractor understands and agrees that neither Contractor nor Client shall be liable or responsible for any theft, loss, destruction, or damage to the equipment, tools, facilities, machinery, supplies or any other personal property owned, rented, or used by Subcontractor, its agents, employees, independent contractors, or other representatives in the performance of the Work under this Agreement. By entering into this Agreement, Subcontractor explicitly assumes all risks described in this Section 5.32, and Subcontractor hereby waives and relinquishes any right or Claim it may have had against Contractor or Client related to any and all past, present, and future theft, loss, destruction, or damage, regardless if such theft, loss, destruction, or damage was a direct result of the actions of an employee, agent, independent contractor, or any other representative of Contractor or Client. Subcontractor understands that in order to protect against these risks, it shall maintain an insurance policy that protects against such risks in accordance with this Agreement. Contractor shall not be liable or responsible for any loss or damage related to the materials, equipment, or Work that Subcontractor is to provide under this Agreement. Subcontractor shall be responsible for the correction or restoration, at its sole expense, of any such loss or damage to the materials, equipment, or Work, or to the services of Contractor or any other subcontractor of Contractor, resulting from the operations or activities of Subcontractor, or its agents, employees, independent contractors or representatives hereunder. Subcontractor shall implement necessary precautions to reasonably protect the Work from loss or damage prior to final acceptance by Client.

B.   IN NO EVENT SHALL CONTRACTOR OR ANY CLIENT, OR THEIR RESPECTIVE PRINCIPALS, AGENTS, OR REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION OF VALUE ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT SUBCONTRACTOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE), CRIMINAL, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

C.   IN NO EVENT WILL CONTRACTOR’S AGGREGATE LIABILITY TO SUBCONTRACTOR ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF TO RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS OF COMPENSATION PAID TO SUBCONTRACTOR BY  CONTRACTOR PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

 

5.33.  GIFTS –Subcontractor and its principals, officers, employees, or representatives shall not, directly or indirectly, give or agree to give any gift or similar benefit (whether monetary, non-monetary or otherwise) to Contractor or any principal, officer, employee or representative of Contractor. Subcontractor shall promptly notify Contractor of any solicitation prohibited hereunder.

5.34. THIRD PARTY BENEFICIARIES – Except for the Parties and their successors and permitted assigns, there are no third-party beneficiaries under this Agreement except as set forth herein. Notwithstanding the foregoing, the Parties hereby designate (a) the Indemnified Parties who are not a party to this Agreement as third-party beneficiaries of Section 5.13; and (b) Client as a third-party beneficiary of Section 5.24.

5.35. FORCE MAJEURE – No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, explosion, epidemic, pandemic, or outbreak; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order, Applicable Law, or action, including lockdowns or lockouts; (e) national or regional emergency; (f) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (g) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within thirty (30) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized and shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.

SECTION 6 - INSURANCE REQUIREMENTS

6.01. INSURANCE COVERAGE– Subcontractor shall maintain insurance on all of its operations during the term of this Agreement, with insurance companies admitted in the state(s) in which any Project is located or any portion of the Work is performed, on forms acceptable to Contractor, for the minimum insurance coverages, which are provided on Exhibit B attached to the SOW.

6.02. OTHER INSURANCE REQUIREMENTS – Subcontractor further acknowledges and agrees as follows:

 

A.   If higher limits or other forms of insurance are required in the Contract Documents or by Client or Contractor, Subcontractor shall comply with such requirements.

B.   Such policy or policies shall be endorsed to name Contractor, its subsidiaries, and affiliates and their shareholders, directors, officers, members, managers, employees, and agents, Contractor, Client, and Client’s construction manager, if any, as additional insureds. Such policy shall stipulate that the insurance afforded to Contractor and Client shall be primary insurance, and that any insurance carried by Contractor and Client shall be excess and non-contributory with Subcontractor’s insurance.

C.   Certificates of insurance shall be furnished by Subcontractor to Contractor before any Work is commenced hereunder by Subcontractor based on the form attached to the SOW as Exhibit C. The certificates shall provide that there will be no cancellation, reduction, or modification of coverage without thirty (30) days’ prior written notice to Contractor.  Certificate Holder should read: Access Pro Supply, LLC, 1500 Airport Drive, Suite 200, Ball Ground, GA 30107.  Acceptance of said certificate will not be deemed to be a waiver of any the requirements of this contract.

D.   All such insurance coverages shall remain in effect until expiration of Contractor’s warranty to Client, or Subcontractor’s warranty to Contractor or Client, whichever is longer. In addition, completed operations and product liability coverage under an occurrence form policy shall remain in effect for the full term, including extensions, of Subcontractor’s general completed operations and products coverage and the cancellation notice provision contained herein shall remain in effect during the coverage. “Claims made” policies, including modified occurrence forms, are not acceptable.

E.   If Subcontractor does not comply with the requirements of this Section 6.02 and Exhibit B attached to the SOW, Contractor may, at its option, provide insurance coverage to protect Client and Contractor and charge Subcontractor for the cost of that insurance. If Contractor elects to provide such insurance, this shall in no way limit or relieve Subcontractor of the duties and responsibilities assumed by it in this Agreement.

F.   Subcontractor waives all rights against Contractor, Client, and their agents, representatives, officers, directors and employees for recovery of damages to the extent these damages are covered by any commercial general liability, commercial umbrella liability, business auto liability or workers compensation, employers’ liability insurance, or builder’s risk insurance.

 

SECTION 7 - SUBCONTRACTOR SAFETY

7.01. SAFETY GENERALLY – Jobsite safety is of extreme importance. Subcontractor shall require its employees, agents, independent contractors, and representatives to obtain adequate training and possess adequate safety equipment at all times while performing Work as outlined in herein and in the SOW. Subcontractor shall immediately provide notice to Contractor in the event of any Work-related injury or breach of the safety precautions and procedures that are put in place; provided, that Subcontractor shall provide notice to Contractor no later than forty-eight (48) hours after such an occurrence. Neither Contractor nor any Client shall be deemed to have made any representation or warranty to Subcontractor with respect to the physical conditions or safety of any particular jobsite or Project area. The prevention of accidents and/or exposure of workers and others to hazardous materials or substances is the sole responsibility of Subcontractor, and Subcontractor shall, and shall cause its employees, contractors, agents, and personnel to, comply with all safety policies, procedures, measures, and protocols initiated by Contractor and any Client as well as all Applicable Laws concerning safety. Subcontractor shall indemnify, defend, and hold harmless Contractor, Client, and their respective officers, agents, employees, and representatives from any costs, expenses, or liability (including attorneys’ fees, fines, and penalties) arising out of Subcontractor’s failure to comply with the aforementioned laws, regulations, and codes, except to the extent caused exclusively by the gross negligence or willful misconduct of Contractor or Client. Prior to starting any Work on the Project, Subcontractor must provide a copy of Subcontractor’s written safety program to Contractor and any other written programs relevant to Subcontractor’s Work, for example, a fall protection plan, hazard communication plan, etc. Use of personal protective equipment (hard hats, colored warning garments, proper eye protection, proper footwear, etc.) is mandatory at all times. If Subcontractor or any party working under or for Subcontractor in connection with the Project fails to use or enforce the use of appropriate personal protective equipment at all times, or otherwise fails to fully comply with all applicable safety rules, regulations, and policies, Contractor may, at its option: (a) require the immediate removal from the jobsite of any person found to be without appropriate personal protective equipment, and/or who may be otherwise failing to fully comply with all applicable safety rules, regulations and policies; and (b) terminate this Agreement. 

7.02 DRUGS AND ALCOHOL – The use or possession of alcohol or illegal drugs on any Project site is strictly forbidden by Contractor and in explicit violation of Subcontractor’s safety obligations hereunder. Contractor reserves the right to remove anyone from a Project site for suspected possession or consumption of alcohol or illegal drugs. Additionally, consuming alcohol or using illegal drugs prior to work, or when an individual will be returning to work, is also prohibited. Contractor reserves the right to conduct suspicion, random, and post-accident testing as appropriate. If Contractor sees or verifies that Subcontractor or any employees, agents, independent contractors, or other representatives of Subcontractor are in possession of, or under the influence of, alcohol or illegal drugs at a Project site, Subcontractor will be in material breach of this Agreement, and in such event, Contractor may terminate this Agreement in its sole and absolute discretion. 

 

[END OF ACCESS PRO SUPPLY SUBCONTRACTOR TERMS AND CONDITIONS]