CONTINUING SERVICES AGREEMENT: PRINCIPAL DOCUMENT
This continuing services agreement ("Agreement") is made and effective as of
_______________________ between _____________________________________________,
having offices at _________________________________________ ("Customer") and
IWL Communications, Inc., a Texas corporation having offices at 00000
Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 ("Contractor"), and is made
in consideration of the terms and conditions contained in this Agreement.
Customer and Contractor agree as follows:
INDEX
I. PRINCIPAL DOCUMENT
1. DEFINITIONS
2. SCOPE OF SERVICES
3. TERM AND AGREEMENT TERMINATION
4. WORK ORDERS
5. WORK ORDER SUSPENSION
6. ASSUMPTION OF SERVICES
7. WORK ORDER TERMINATION
8. COMPENSATION
9. INVOICING PROCEDURES
10. CONTRACTOR'S WARRANTIES
11. HEALTH, SAFETY AND RELATED POLICIES
12. INSURANCE
13. APPLICABLE LAW
14. FEDERAL CONTRACT CLAUSES
15. NOTICES
16. SURVIVORSHIP
17. AGREEMENT AND WORK ORDER ASSIGNMENTS
18. AMENDMENTS
19. CHANGES TO GENERAL TERMS AND CONDITIONS
20. PRECEDENCE
21. ENTIRE AGREEMENT
22. CONDITION PRECEDENT
II. GENERAL TERMS AND CONDITIONS
III. EXHIBITS
Unless indicated by "N/A" adjacent to each Exhibit listed below, the following
Exhibits are each incorporated into this Agreement.
EXHIBIT A Services: Scope of Work - N/A
EXHIBIT B Work Order Form - N/A
EXHIBIT C Change Order Form - N/A
EXHIBIT D Compensation - N/A
EXHIBIT E Invoicing Procedures - N/A
EXHIBIT F Federal Contract Supplement - N/A
EXHIBIT G Health and Safety Requirements - N/A
EXHIBIT H Drug and Alcohol Policy - N/A
EXHIBIT I Site Specific Attachments - N/A
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ARTICLE 1: DEFINITIONS
For the purposes of this Agreement and Work Orders, the following terms shall
have the meanings stated below:
1) "Affiliate" means (1) any company in which Customer now or hereafter (a)
owns or (b) controls, directly or indirectly, more than fifty percent
(50%) of the stock having the right to vote or appoint its directors
("Company"), and (2) any joint venture in which Customer or a Company is
the operator.
2) "Agreement" means this Principal Document, the Exhibits indicated in the
Index, and the General Terms and Conditions.
3) "Change Order" means a written change to a Work Order in the form set out
in Exhibit C or in any other form that User may provide, provided that the
form identifies the appropriate Work Order and is executed as provided in
this Agreement.
4) "Competence" means the expertise, experience, capability and specialized
knowledge to perform Services in a good and workmanlike manner and within
all accepted standards for the industry.
5) "Contractor" means the legal entity identified in the preamble of this
Principal Document that is responsible for performing Services in
accordance with the terms of each Work Order.
6) "Customer" means _________________________________________________________
__________________________________________________________________________.
7) "Exhibits" means the exhibits listed in the Principal Document and
incorporated into this Agreement.
8) "Law" means all government laws, regulations and rules.
9) "Principal Document" means this part of this Agreement labeled CONTINUING
SERVICES AGREEMENT: PRINCIPAL DOCUMENT.
10) "Services" means the services described in Exhibit A and each applicable
Work Order.
11) "Subcontractors" means subcontractors, suppliers or materialmen providing
materials or services to Contractor for the purpose of completing Services
under a Work Order.
12) "User" means Customer or any Affiliate and their respective divisions
that issue a Work Order to
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Contractor as provided in this Agreement.
13) "Work Order" means the document or documents issued by User incorporating
the terms of this Agreement and specifying the Services to be performed
using the form set out in Exhibit B or any other form User may provide
whether labeled as a Work Order or by other labels including, but not
limited to, "release," "work release," "letter of special agreement,"
"work order agreement," "work authorization" or "letter of authorization"
provided that such form is executed and accepted as provided in this
Agreement. A Work Order may take the form of an oral request by a User.
14) "Work Site" means the site indicated in the Work Order and other sites
that the User may make available to Contractor to perform Services and
related activities.
ARTICLE 2: SCOPE OF SERVICES
The purpose of this Agreement is to provide the Services specifically set out
in Exhibit A when and as provided in a Work Order. The Services are
generally described as radio and associated communications equipment
maintenance and repair.
ARTICLE 3: TERM AND AGREEMENT TERMINATION
3.1 TERM
The term of this Agreement shall be from __________ to _________ and shall
continue thereafter until terminated by thirty (30) days written notice of
termination delivered by one party hereto to the other.
3.2 AGREEMENT TERMINATION
Customer or Contractor may terminate this Agreement at any time and for any
reason by giving a notice of termination thirty (30) days in advance to the
other party. Neither party shall be liable to the other as a result of
termination of this Agreement for any costs, claims, losses, damages or
liabilities including, without limitation, loss of anticipated profits.
Customer shall not be liable to Contractor for reimbursement for Services
unperformed as a result of the termination. If the Agreement is terminated,
Services under all Work Orders issued to Contractor shall be completed by
Contractor in accordance with the terms of the respective Work Order and
this Agreement, which shall be deemed to remain in effect for purposes only
of completing each Work Order. Each User may, however, at its sole
discretion, terminate the Services under any or all of its Work Orders issued
and outstanding as provided in
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Section 7.1 of this Principal Document. The liability of each User for
termination of any Work Order shall be in accordance with Section 7.2 of this
Principal Document.
ARTICLE 4: WORK ORDERS
4.1 ISSUANCE
Customer, its Affiliates and their respective divisions may, from time to
time, issue Work Orders to Contractor under this Agreement requesting
Contractor to provide Services. Contractor acknowledges and agrees that the
User issuing a Work Order shall be solely responsible for performance of
User's obligations under its Work Order; provided, however, Customer and its
Affiliates shall each be responsible for the User's obligations incurred by
their respective divisions. Should Contractor accept a written Work Order
from a User, it shall do so promptly by executing and returning the Work
Order to that User. However, if Contractor begins to perform the services
designated in a written Work Order that it has not executed and returned to
the User or in an oral Work Order, Contractor shall be deemed to have
accepted the Work Order in accordance with all of its terms on the date the
work begins. Each Work Order accepted by Contractor shall be completed in
accordance with the provisions of the Work Order, which incorporates the
provisions of this Agreement as indicated below in Section 4.2, and no other
provisions shall be deemed to be applicable.
4.2 NATURE OF AND INCORPORATION OF TERMS
Each accepted Work Order shall constitute a legal contract between User and
Contractor separate and distinct from either any other Work Order or this
Agreement. Each Work Order shall, nonetheless, be deemed to incorporate the
provisions of this Agreement. Any provision of a Work Order that modifies or
deletes any provision(s) of this Agreement shall be null and void, and the
provisions of this Agreement shall be deemed to be unaffected and in full force
and effect with respect to the Work Order. Should any provision of a Work
Order be in conflict with any provision(s) of this Agreement, the
provision(s) of this Agreement shall take precedence and govern.
Notwithstanding anything to the contrary in this Agreement, any User's
written Work Order may take precedence and govern over one or more
provision(s) of Exhibits A, D, E, G, and I for purposes only of that specific
Work Order as follows:
(a) modify the Services as described in Exhibit A;
(b) modify Exhibit D to establish a lump sum price for any or all
Services in place of Exhibit D pricing, if any; and
(c) modify or replace Exhibits E, G and I.
An oral Work Order shall not modify any provision of this Agreement except to
modify the Services described in Exhibit A for that specific Work Order.
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4.3 TERM OF WORK ORDER
The term of any Work Order shall begin on the date the Work Order is accepted
and shall continue through the termination date of the Agreement (subject to
Section 3.2 above), the termination date, if any, provided in the Work Order
for all Services under the Work Order, completion of all Services under the
Work Order, or termination under Section 7.1 of this Principal Document,
whichever occurs first.
4.4 CHANGES TO WORK ORDERS
Except as provided in Section 11.2 of this Principal Document, any
alteration, deletion or addition to Services in any Work Order or a change in
any provision(s) of any Work Order shall be effective only if made in a
Change Order executed by User and Contractor. Work Orders are deemed to
include any applicable Change Orders. A Change Order, however, shall not
modify any provisions of this Agreement incorporated into the Work Order
except to the extent that a written Work Order is permitted to modify this
Agreement.
4.5 CONTRACTOR'S DOCUMENTS
"Pricing Information" means any price lists, rate schedules, work tickets,
invoices, receipts or other documents related to Services, prepared by
Contractor and/or submitted to Customer or any User. Nothing in any Pricing
Information, now or in the future, shall supersede, add to or amend in any
way this Agreement or any Work Order regardless of any provision to the
contrary in the Pricing Information, except that:
(a) any Pricing Information included in this Agreement as part of Exhibit D
shall be used for the sole purpose of establishing rates to be charged
for Services, and
(b) any Pricing Information made a part of a Work Order shall be used for the
sole purpose of establishing pricing for Services under the Work Order as
permitted by Section 4.2 of this Principal Document.
Any other Pricing Information, now or in the future, shall be used for the
sole purpose of accounting for rates charged for Services, provided the
Pricing Information is consistent with the applicable pricing in Exhibit D or
the Work Order.
4.6 USER LIST
Upon Customer request, Contractor shall promptly provide Customer with a list
containing the name and location of each User that issued a Work Order and,
for each Work Order that has not been fully performed by Contractor, the
name and location of each User and expected completion date.
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ARTICLE 5: WORK ORDER SUSPENSION
5.1 SUSPENSION OF WORK ORDER
User may suspend at any time and for any reason Services under a Work Order
in whole or in part by notice to Contractor, and Contractor shall promptly
comply. User may, at any time, authorize Contractor to resume any part of the
suspended Services by notice to Contractor, and Contractor shall then
promptly resume the specified Services. Notices given under this Section 5.1
may be oral for any suspension that is reasonably expected to continue for
three (3) working days or less.
5.2 COMPENSATION FOR AND DURING SUSPENSION
In the event Services are suspended, User shall pay Contractor, according to
Exhibit D and subject to the other provisions of this Agreement that may
reduce or suspend payment, for Services performed and obligations incurred
prior to the effective date of suspension. During the suspension of
Services, User shall not pay any compensation to Contractor with respect to
the Services suspended except as determined by User at User's sole
discretion. User's sole liability to Contractor for suspension shall be
determined in accordance with this Article 5, and User shall not be liable
for any other costs, claims, damages or liabilities whatsoever of Contractor
or its Subcontractors, including, without limitation, loss of anticipated
profit or reimbursement for Services suspended. Contractor's contracts with
Subcontractors shall contain a similar provision to this Article 5 so that
User will not be liable to Subcontractors for suspended Services.
ARTICLE 6: ASSUMPTION OF SERVICES
Contractor agrees that if, in the opinion of User, Contractor fails at any
time during the performance of Services under a Work Order to provide the
labor, supervision, tools, equipment or materials necessary for the prompt
performance of Services, or should Contractor breach the Work Order in whole
or in part or fail to use due diligence in the performance thereof, User may,
at its election and without prejudice to any other remedies available to it,
take over and perform or obtain another contractor to take over and perform
all or any part of Services then remaining unperformed. Should User take over
completion of Services, or obtain another contractor to do so, User's sole
obligation shall be to pay Contractor, upon completion of Services and
subject to the other provisions of this Agreement that reduce or suspend
payment,
(a) an amount determined according to Exhibit D for Services, other than
lump sum Services, performed and obligations incurred prior to the
effective date of User's assumption of Services; and
(b) for lump sum Services, the lesser of either (1) the percentage of any
moneys due which represents the percentage of Services completed by
Contractor under the Work Order, or (2) the lump sum price for the
Work Order less all costs and expenses incurred by User in
completing Services.
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Notwithstanding the foregoing, if User should exercise this right, User or
its designee shall have the right but not the obligation to use all or any
part of Contractor's tools and equipment then in use on the job but shall
pay Contractor a reasonable rental for the use of the tools and equipment
during the period of use by User or its designee and shall return same to
Contractor upon completion of the job in as good condition as when taken over
by User, ordinary wear and tear excepted. Subject to the provisions of this
Agreement, User's sole liability to Contractor for assumption of Services is
contained in this Article 6, and User shall not be liable for any costs,
claims, damages or liabilities whatsoever of Contractor or its
Subcontractors, including, without limitation, consequential, special or
indirect damages, loss of anticipated profit or reimbursement for Services
unperformed.
ARTICLE 7: WORK ORDER TERMINATION
7.1 TERMINATION OF WORK ORDER
Without effect on this Agreement for purposes of any other Work Order, User
may, at any time and for any reason, terminate the Services in whole or in
part under a Work Order by notice or Change Order to Contractor, and
Contractor shall promptly comply.
7.2 COMPENSATION FOR TERMINATION
In the event Services are terminated under a Work Order in accordance with
Section 3.2 or 7.1 of this Principal Document, User shall pay Contractor,
subject to the other provisions of this Agreement that may reduce or suspend
payment, (a) according to Exhibit D for non-lump sum Services performed and
obligations incurred prior to the termination, (b) for lump sum Services, the
percentage of any lump sum price due which represents the percentage of the
Services completed by Contractor, and (c) for direct costs that Contractor
incurs in terminating Services under the Work Order, provided those costs (1)
were authorized in advance by User, and (2) are properly supported by
timesheets, invoices and the like. Subject to the provisions of this
Agreement, User's sole liability to Contractor for termination is contained
in this Section 7.2 and User shall not be liable for any costs, claims,
damages or liabilities whatsoever of Contractor or its Subcontractors,
including, without limitation, consequential, special or indirect damages,
loss of anticipated profit or reimbursement for Services unperformed.
ARTICLE 8: COMPENSATION
Subject to the provisions of this Agreement, Contractor shall charge and User
shall pay Contractor either the rates and fees or the lump sum specified in
Exhibit D (as may be modified under Section 4.2 of this Principal Document),
whichever is applicable, for Services that Contractor performs under each
Work Order. No payment by a User shall limit the User's right to later
dispute any of the charges invoiced, and payment shall not be construed as
User's acceptance of any Services.
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ARTICLE 9: INVOICING PROCEDURES
Contractor shall invoice User for Services using the invoicing procedures in
Exhibit E as may be modified by the applicable Work Order or Change Order.
User shall not be obligated to make any payments of invoices if Contractor
does not comply with invoicing procedures.
ARTICLE 10: CONTRACTOR'S WARRANTIES
10.1 CONTRACTOR'S REPRESENTATIONS AND WARRANTIES
Contractor represents and warrants that it:
(a) has the Competence to perform the Services;
(b) has or shall obtain the necessary tools, equipment and personnel to
provide the Services;
(c) shall maintain and use all tools and equipment in accordance with
manufacturer's specifications and recommendations and good engineering
and operational practices;
(d) has or shall obtain, at its expense, before performing any Services
all the necessary certificates, permits, licenses and authorizations
to conduct business and perform the Services.
(e) shall perform all Services in accordance with all applicable Law;
(f) shall perform all Services in good faith, promptly, with due
diligence and Competence; and
(g) fully comprehends the requirements and contingencies for providing
Services and it shall examine the Work Site for any additional or
special requirements and contingencies prior to performing Services.
10.2 CONTRACTOR'S DUTY FOR COMPLIANCE OF SERVICES WITH AGREEMENT AND
APPLICABLE WORK ORDER
Contractor represents and warrants that it shall not perform any aspect of
the Services that it knows or has reason to believe cannot be performed in
conformity with the provisions of this Agreement and applicable Work Order.
If Contractor determines that it cannot perform Services in conformity with
these provisions, Contractor shall immediately advise User and work with User
to develop a mutually satisfactory resolution for the inability to perform.
Contractor further represents and warrants that it shall ascertain whether
any drawings and specifications applicable to the Services are at variance
with any applicable Law and good engineering and operational practices before
beginning any Services. If Contractor discovers any variance, it shall
promptly notify User in writing and ensure the necessary changes are made
before proceeding with the part of the Services affected.
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10.3 CONTRACTOR'S WARRANTY
Without limiting the rights that User may otherwise have at Law or equity,
Contractor guarantees and warrants that all Services performed shall be free
from defect or deficiency for ninety (90) days and any materials and
equipment provided in connection with the Services shall be free from defect
or deficiency for one (1) year from the date of completion or acceptance of
the Services, whichever occurs last. If User discovers any defect or
deficiency during this warranty period, and User has notified Contractor of
the defect or deficiency within a reasonable period of time after the end of
this warranty period, Contractor, at its sole expense, shall at User's option
promptly repair or replace the defect or deficiency (including all other
labor, materials and other Services necessarily incidental to effecting this
correction of the defect or deficiency). Any Services provided under this
Article 10 to correct any defect or deficiency shall be warranted on the same
bases as provided in this Article 10 for the longer of (a) the balance of the
one year warranty period or (b) six (6) months from the date of completion or
acceptance, whichever occurs last, of the repair or replacement.
10.4 OTHER WARRANTIES
Contractor shall use its best efforts to ensure that all warranties provided
by Subcontractors and manufacturers are assigned to the applicable User. If
any warranty cannot be assigned to the applicable User, Contractor shall use
its best efforts to make that warranty available for the applicable User's
benefit. Contractor shall deliver a copy of each written warranty provided
by Subcontractors and manufacturers to the applicable User. The warranties
under this Section 10.4 shall be in addition to any others provided under
this Agreement, the applicable Work Order or otherwise under the Law.
ARTICLE 11: HEALTH, SAFETY AND RELATED POLICIES
11.1 CONTRACTOR'S HEALTH AND SAFETY OBLIGATIONS
Contractor shall be responsible for providing a healthy and safe work place
and working environment for its employees and Subcontractors during
performance of Services. Contractor shall protect the health and safety of
Contractor's, Subcontractors' and User's employees, the public, and other
third parties from any danger associated with the Services. All tools,
equipment, facilities and other items used by the Contractor and its
practices employed to accomplish the Services are considered part of the
working environment. As minimum health and safety requirements, Contractor
acknowledges and agrees that it is responsible for and shall ensure that all
Services are performed in compliance with any and all:
(a) applicable law;
(b) health and safety requirements of the User set out in Exhibit G; and
(c) policy set out in Exhibit H.
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In addition, Contractor agrees that it is responsible and shall ensure that
all Services are performed in compliance with any changes to Exhibit G made
by User in accordance with Section 11.2 below. Contractor agrees to adopt
whatever methods, procedures and precautions are necessary to comply with the
provisions in this Article 11.
11.2 CHANGES IN HEALTH AND SAFETY REQUIREMENTS
In addition to each User's right to modify the provisions of Exhibit G in the
written Work Order under Section 4.2 of this Principal Document, each User
may modify or replace at any time the provisions of Exhibit G regarding any
health or safety rule(s), regulation(s) or policy(s) applicable to Services
under the specific Work Order by notifying contractor either orally or in
writing without complying with any provision on giving notice in this
Agreement.
11.13 RIGHTS AND REMEDIES
Contractor acknowledges that compliance with the provisions of this Article 11
are of the highest importance. Any breach of this Article 11 or the provisions
of Exhibits G or H as may be modified shall constitute a substantial and
material breach of the Agreement and the Work Order incorporating this
Agreement entitling Customer and User, respectfully, to exercise the rights
and remedies specified in this Agreement and any other rights and remedies
under applicable Law or equity.
ARTICLE 12: INSURANCE
12.1 MINIMUM INSURANCE REQUIREMENTS
Contractor shall carry and maintain in force the following insurances in
amounts and with companies satisfactory to Customer.
(a) WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY
For all its employees engaged in performing Services, workers'
compensation and employers' liability insurance or similar social
insurance in accordance with Law which may be applicable to those
employees.
(b) COMPREHENSIVE GENERAL LIABILITY
Its normal and customary comprehensive general liability insurance
coverage and policy limits or at least $1,000,000.00, whichever is
greater, providing coverage for injury, death or property damage
resulting from each occurrence.
(c) AUTOMOBILE LIABILITY
Automobile liability insurance coverage and policy limits covering
owned, non-owned and rented automotive equipment providing at least
$1,000,000.00 coverage for injury, death, or property damage
resulting from each accident.
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(d) INLAND WATERS
If Contractor performs Services in inland waters, an endorsement to
the workers' compensation policy extending coverage to all
employees engaged in performing Services subject to the U.S.
Longshoremen's and Harbor Workers' Compensation Act, an endorsement
to the workers' compensation policy stating that a claim made
against User and/or its underwriters by an employee of Contractor
based on the doctrine of "borrowed servant" shall, for the purposes
of this insurance, be treated as a claim arising under Contractor's
policy, and an endorsement to worker's compensation policy stating
that a claim "In Rem" shall be treated as a claim against the
insured.
(e) OFFSHORE
If Contractor performs Services offshore, an endorsement
(Amendment to Coverage B endorsement - maritime) to the worker's
compensation policy extending coverage to include maritime coverage
providing limits of at least $ N/A per accident, and an endorsement
to the workers' compensation policy extending coverage under the
U.S. Longshoremen's and Harbor Worker's Compensation Act to include
coverage of the Outer Continental Shelf Lands Act.
(f) WATERCRAFT LIABILITY
If watercraft are to be used in performing Services, Marine
protection and indemnity insurance including coverage for illness
or death of seamen providing limits of at least $ N/A for each
occurrence with User named as an additional insured party.
Contractor further agrees that the minimum insurance requirements as set
forth above shall not limit or waive Contractor's legal or contractual
responsibilities to any User or to others.
12.2 CUSTOMER ALTERNATIVES
As an alternative and at Customer's option and expense, Customer may elect to
furnish or to arrange for Contractor all or any part of the insurance
required in this Article 12. If Customer elects this alternative, it shall so
state in a notice to Contractor, and Contractor's compensation shall be
reduced by an amount equal to Contractor's cost of the insurance.
As an alternative and at Customer's option and expense, Customer may elect to
furnish or to arrange for Contractor the insurance that Contractor carries
for, or to assume the responsibility for all or any part of, the property
specified in Section 9.1 of the General Terms and Conditions. If Customer
elects this alternative, it shall so state in a notice to Contractor, and
Contractor's compensation shall be reduced by an appropriate amount.
12.3 PROOF OF INSURANCE AND CHANGES
Upon request by Customer or any User, Contractor shall have its insurance
carrier(s) furnish to the requester certified copies of the required
insurance policies and/or certificates of insurance specifying that no
insurance shall be canceled or materially changed while
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Services are in progress without thirty (30) calendar days prior written
notice to the requester.
12.4 SUBCONTRACTOR'S INSURANCE
If Contractor subcontracts any part of the Services, Contractor shall require
its Subcontractors to maintain insurance specified in the subcontracts, but
shall not require Subcontractors to carry insurance that would duplicate the
coverage of the insurance carried by Contractor. Upon request by Customer or
User, Contractor shall have its Subcontractors furnish the same evidence of
insurance required by Contractor.
12.5 COMMENCEMENT OF SERVICES
Contractor and its Subcontractors shall not begin Services until all of the
insurance required of Contractor and its Subcontractors is in force and the
necessary documents, if requested by Customer User, have been received by the
requester.
ARTICLE 13: APPLICABLE LAW
The validity, interpretation and construction of this Agreement and any Work
Order incorporating this Agreement shall be governed by the Laws of the state
of Texas without reference to that state's principles of conflicts of law.
It is not Customer's or User's intent to require indemnification in violation
of any statute, law or ordinance and no employee or agent of User is
authorized to require otherwise. If this Agreement contains an
indemnification provision(s) in violation of Section 3C of Tex. Rev. Civ.
Stat. Xxx. Article 6701d-11 as may be subsequently placed in the Texas
Transportation Code, such provision(s) shall be of no effect to the extent
Section 3C of Tex. Rev. Civ. Stat. Xxx. Article 6701d-11 is a valid and
enforceable law applicable to the Services under this Agreement as a matter
of law and the indemnification provision(s) contained in this Agreement is
illegal under Section 3C.
ARTICLE 14: FEDERAL CONTRACT CLAUSES
Customer is a U.S. Government contractor. This Agreement therefore
incorporates by this reference, and each party shall comply with, all
applicable federal laws, regulations and orders, including without limitation
those relating to equal opportunity, utilization of small business concerns
and small disadvantaged business concerns, employment of the handicapped,
employment of disabled veterans and veterans of the Vietnam era, and the
environment. Contractor certifies that no facility which has been the subject
of a conviction under the applicable portion of the clean Air Act (42 U.S.C.
7413(c)(1)) or Clean Water Act (33 U.S.C. 1319(c)) and is listed by the
Environmental Protection Agency as a violating facility will be used in the
performance of any Work Orders incorporating this Agreement. Those Federal
Contract Clauses which are required to be expressly incorporated into this
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Agreement are contained in the attached Federal Contract Supplement
(Exhibit F), and the parties agree to the terms and conditions contained
in that Supplement.
ARTICLE 15: NOTICES
15.1 AGREEMENT NOTICES
Notices intended to affect this Agreement or all current and/or future Work
Orders, and required or permitted to be given under this Agreement to
Customers or Contractor, shall be in writing and deemed to be properly given
if addressed to the appropriate party at the address below, and:
(a) delivered in person,
(b) sent by facsimile with confirmation,
(c) deposited in the United States mail with first class postage prepaid, or
(d) delivered by private, prepaid courier
CUSTOMER CONTRACTOR
-------- ----------
-------------------------- IWL Communications, Inc.
-------------------------- 00000 Xxxxxxxxx Xxxxxx
-------------------------- Suite 200
-------------------------- Xxxxxxx, Xxxxx 00000
-------------------------- Attention: Contracts Administration
-------------------------- Phone: 000-000-0000
-------------------------- Fax: 000-000-0000
15.2 WORK ORDER NOTICES
Except as provided in Sections 5.1 and 11.2 of this Principal Document,
notices required or permitted to be given under any Work Order shall be given
in the manner specified in Section 15.1 above, but addressed to User or
Contractor as specified in the Work Order. If the Work Order does not specify
the address for one or both of the parties, the address provided in Section
15.1 above shall be used by the other party.
15.3 ADDRESS CHANGES
Any address for notices under Sections 15.1 or 15.2 above may be changed by
written notice to the other party as provided in this Article 15.
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ARTICLE 16: SURVIVORSHIP
The provisions of Articles 3, 7, 10, 16 and 17 of this Principal Document and
Articles 3, 4, 5, 9, 10, 11, 12, 18, 21 and 23 of the General Terms and
Conditions shall survive any expiration or termination of this Agreement or
any Work Order.
ARTICLE 17: AGREEMENT AND WORK ORDER ASSIGNMENTS
Contractor shall not assign this Agreement in whole or in part without the
prior written approval of Customer which may be withheld for any reason.
Contractor shall not assign any Work Order incorporating this Agreement in
whole or in part (including any sum accruing to Contractor) without the prior
written approval of User, which may be withheld for any reason. Any
assignment of this Agreement or any Work Order, if approved by Customer or
the applicable User, respectively, shall not relieve Contractor of its
responsibilities under this Agreement or that Work Order.
ARTICLE 18: AMENDMENTS
Except for a User's ability to modify or replace the provisions of Exhibits
A, D, E, G, and I for individual Work Orders under Sections 4.2 and 11.2 of
this Principal Document, any alteration, deletion or addition to any of the
terms of this Agreement shall only be effective if made in a written
amendment to this Agreement, duly executed by Customer and Contractor. Once
an Agreement amendment is made, it shall be deemed incorporated as of its
effective date for all ongoing and future Services, unless expressly stated to
the contrary in the amendment. Work Orders shall not be amended or modified
by User or Contractor except as provided in Articles 4, 11 and 18 of this
Principal Document.
ARTICLE 19: CHANGES TO GENERAL TERMS AND CONDITIONS
There are no changes to the General Terms and Conditions in this Agreement
except as may be specifically provided below in this Article 19:
NONE
ARTICLE 20: PRECEDENCE
In the event of a conflict between any provisions of this Agreement, the
terms in this Principal Document shall take precedence and govern over the
General Terms and Conditions and the Exhibits, and the General Terms and
Conditions shall take precedence and govern over the Exhibits.
ARTICLE 21: ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between Contractor and
Customer, and it supersedes all prior negotiations, representations, or
agreements, either oral or written,
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related to this Agreement. Each Work Order incorporating this Agreement
constitutes the entire contract between Contractor and User for the Services
under the Work Order, and it supersedes all prior negotiations,
representations, or other agreements, either oral or written, related to that
Work Order.
ARTICLE 22: CONDITION PRECEDENT
If Contractor is the first party to execute this Agreement below, Customer's
acceptance of this Agreement is conditioned on Customer's review and
execution of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement in
duplicate originals.
AGREED AND ACCEPTED:
IWL COMMUNICATIONS, INCORPORATED [CUSTOMER]
By: By:
---------------------------- -----------------------------
Name: Name:
-------------------------- ---------------------------
Title: Title:
-------------------------- ---------------------------
Date: Date:
-------------------------- ---------------------------
Page 15 of 15
GENERAL TERMS AND CONDITIONS
The following terms and conditions (Article 1 through 23) constitute the
General terms and Conditions:
ARTICLE 1: NON-EXCLUSIVE
Contractor acknowledges that this Agreement is a non-exclusive agreement
permitting Customer to obtain Services through the issuance of Work Orders
and each Work Order is a non-exclusive contract for providing Services.
Customer and User retain the right to engage others to perform the same type
of Services without any liability to Contractor, and neither Customer nor
User makes any representation as to the number, frequency or dollar value of
Work Orders for Services to be issued under this Agreement.
ARTICLE 2: INDEPENDENT CONTRACTOR
Contractor, in performing Services and other obligations under each Work
Order, shall be deemed an independent contractor and not the agent or
employee of User. While Contractor's Services shall meet with the User's
approval. User is interested in the results to be achieved and, accordingly,
the detail, manner and method of performing Services shall be the
responsibility of and under the supervision and control of Contractor.
ARTICLE 3: SUBCONTRACTORS, LIENS & CLAIMS
3.1 USE OF SUBCONTRACTORS
Services shall be performed solely by Contractor or by those Subcontractors
that User may from time to time allow by its prior written approval. No
approval shall relieve Contractor of any of its obligations under each Work
Order. Contractor shall be responsible to User for Services performed by all
its Subcontractors to the same extent it is for activities performed by
Contractor's employees. Contractor shall ensure that all its contracts with
its Subcontractors contain provisions which are in conformity with and no
less stringent than the provisions of the Work Order(s) (Incorporating this
Agreement) between User and Contractor. Notwithstanding the provisions of
this Section 3.1, any person or other entity not approved as a Subcontractor
and used by Contractor to provide Services under any Work Order hereunder
shall be deemed a Subcontractor only for the purposes of Contractor's
obligations and covenants under the applicable Work Order. Contractor shall,
at User's request at any time, provide User with a list of all Subcontractors
if any, providing Services together with evidence satisfactory to User that
all of its employees and Subcontractors have been paid in full for Services
performed.
3.2 CLAIMS AND LIENS
Contractor shall pay and completely satisfy all claims for labor, equipment,
rentals and material employed or used by it in connection with any and all
Services performed under each Work Order when those claims become due and
payable. Contractor shall ensure that no liens of any kind are fixed upon or
against the property of User by Contractor's employees. Subcontractors, or
Subcontractors' employees. Contractor shall indemnify, defend, protect and
hold User harmless from all such claims and liens. User shall have all the
following rights, without prejudice and in addition to any other rights and
remedies provided in the Work Order or at Law, to protect itself from the
aforementioned claims and liens:
(a) For any sum due Contractor under a Work Order, User may withhold up
to fifteen percent (15%) (or less if the applicable Law limits this
to a lesser amount) as retainage or holdback from each payment it
makes to Contractor. Any sums withheld will be paid to Contractor,
at User's sole option, after either (1) Services are completed as
required and the retainage or holdback period(s) required by
applicable Law has expired without issuance of a lien or claim, or
(2) Contractor shows to the satisfaction of User that all claims and
liens have been satisfied and paid.
(b) If, at any time, User should determine that User or any of its
property might become liable for any claim or subject to any lien
that is chargeable to Contractor, User may retain out of any payment
then due Contractor under the Work Order or any other Work Order(s)
between User and Contractor or any such payment thereafter to become
due, an amount sufficient to completely indemnify User against such
claims and liens, including all of User's costs associated
therewith. User may retain the amount withheld until Contractor
delivers to User a complete release of the claims and liens that is
satisfactory to User.
(c) User may, at any time, require that Contractor post a bond, at no
cost to User, to remove any claims or liens.
(d) User may discharge or remove any claims or liens by bonding, payment
or otherwise, all of which are chargeable to Contractor together
with all attorney's fees and costs, and User may set off the amount
of those claims and liens, attorney's fees and costs in accordance
with Article 4 of these General Terms and Conditions.
3.3 LETTERS OF CREDIT
Should Contractor request in writing, and provided User agrees in writing,
Contractor may provide an irrevocable standby letter of credit, naming User
as beneficiary, in satisfaction of Contractor's obligations and liabilities
under Section 3.2 above and in substitution of any amount User may be
retaining under sub-Sections 3.2(a) and 3.2(b). A letter of credit shall be
in a form, duration and an amount, and issued by a financial institution, all
of which are satisfactory to the User.
ARTICLE 4. SET OFF
Any User shall have the right to set off any loss, damage, liability or claim
which such User may have against Contractor against the payment owing to
Contractor under:
(a) the applicable Work Order,
(b) any other Work Order(s) between Contractor and User,
(c) any other Work Order(s) between Contractor and any other User who is
a division or department of the same corporate entity as User, or
(d) any other contract(s) between Contractor and any other division or
department of the same corporate entity as User.
Page 1 of 6
ARTICLE 5: TAXES AND FEES
Contractor is responsible for paying any and all license fees and taxes
levied, assessed or imposed on Contractor to enable it to perform Services
under each Work Order. Any applicable state and local sales or use taxes due
on Services performed under each Work Order are the duty of Contractor to
Collect and shall be separately stated on all invoices as such. However,
Contractor shall not collect or include any sales or use taxes on Services
for which Customer or the User furnishes a properly completed Exemption
Certificate. Contractor shall indemnify and save User completely harmless
against all costs and liabilities which User may incur with respect to
Contractor's failure to make any of the payments referenced in this Article 5.
ARTICLE 6: INSPECTION
User or its designee shall have the right to inspect any Services performed
and any equipment and materials furnished by Contractor or any Subcontractor
at any time during the performance of Services by Contractor or its
Subcontractor(s). No inspection or approval of any Services performed and
equipment and materials furnished will relieve Contractor or Subcontractor(s)
of their obligations and warranties as required by any Work Order(s) and any
subcontracts.
ARTICLE 7: USE OF USER'S TOOLS AND EQUIPMENT
User may loan or furnish tools or equipment to Contractor as an
accommodation for use in connection with any Services. Any tools and
equipment are loaned or furnished on an AS IS, WHERE IS basis. Contractor
agrees:
(a) to inspect the tools and equipment and make its own determination,
before commencing to perform Services, that they are adequate for the
safe and efficient performance of Services by Contractor.
(b) that the tools and equipment will be loaned or furnished by User and
accepted by Contractor without warranty or representation by User as
to their condition or fitness for Contractor's purpose.
(c) to return the tools and equipment to User at the conclusion of use
in as good condition as when received, ordinary wear and tear
excepted; however, Contractor's liability for damage to the tools
and equipment is limited by Section 9.2(a) of these General Terms and
Conditions.
ARTICLE 8: TITLE
Title to all Services, equipment, materials, supplies and structures procured
by Contractor from third parties or supplied by Contractor and incorporated,
or intended at the time of the procurement or supply to be incorporated, into
the work product of Contractor's Services (excluding Contractor's tools,
equipment and rented items) shall pass to User upon payment therefore by User
or upon delivery to User's Work Site, whichever occurs earlier.
Notwithstanding the foregoing, Contractor shall be deemed to have custody of
the procured or supplied items until acceptance of Services by User.
ARTICLE 9: DISTRIBUTION OF RISK, RELEASE AND INDEMNITY
9.1 Contractor's Responsibilities
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(a) Contractor shall release User and holder User harmless for loss of or
damage howsoever caused to Contractor's or Subcontractor's tools and
equipment and rented items which are used or intended for use in the
Services to be performed, and for any consequential, special or
indirect damages, or loss of anticipated profits sustained by
Contractor or Subcontractors, EVEN IF THE LOSS OR DAMAGE RESULTS FROM
USER'S ACTIVE OR PASSIVE NEGLIGENCE
(b) Contractor shall indemnify User for loss of or damage howsoever
caused to User's property intended to be incorporated into or used in
Services to be performed while in Contractor's care, custody or
control until delivered to User's Work Site, EVEN IF THE LOSS OR
DAMAGE RESULTS FROM USER'S ACTIVE OR PASSIVE NEGLIGENCE.
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(c) Contractor's responsibility to compensate User for loss of or damage
to User's existing property which is in reasonable proximity to User's
Work Site or for any resulting consequential, special or indirect
damages, or loss of anticipated profits sustained by User shall not
exceed the amount recoverable by Contractor or its Subcontractors
under the valid and collectible insurance carried by Contractor and
Subcontractors, or the amount which would have been recoverable under
that insurance if all conditions, requirements, and warranties
imposed on the insured by the insurer are being or had been met.
Contractor's responsibility shall include the value of any deductible
or self-insured retention applicable under that insurance. User shall
hold Contractor free and harmless from liability to User for loss or
damage exceeding the amounts so recovered.
9.2 User's Responsibilities
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(a) User shall be responsible for and hold Contractor harmless for loss
of or damage howsoever caused to User's property intended to be
incorporated into or used in the Services to be performed and located
at the Work Site, EVEN IF THE LOSS OR DAMAGE RESULTS FROM CONTRACTOR'S
ACTIVE OR PASSIVE NEGLIGENCE.
(b) User will indemnify Contractor for loss of or damage howsoever caused
to Contractor's property intended to be incorporated into the
Services to be performed and located at the Work Site, EVEN IF THE
LOSS OR DAMAGE RESULTS FROM CONTRACTOR'S ACTIVE OR PASSIVE NEGLIGENCE.
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(c) Notwithstanding the provisions of Section 9.1(c) and Section 9.2(a)
and (b) of these General Terms and Conditions, Contractor shall also be
responsible and not compensated by User for:
(1) any loss of money or securities in the care, custody or control
of Contractor which are used or intended for use in performing
Services,
(2) unexplained or mysterious disappearances of any property in
Contractor's care, custody or control, or shortage of any property
disclosed on taking inventory, or
(3) theft of property on the part of Contractor, Subcontractor or
their employees.
Page 2 of 6
9.3 INDEMNIFICATION FOR THIRD PARTY DAMAGES
User and Contractor shall indemnify, defend and hold each other harmless from
claims, demands and causes of action asserted against the indemnities by any
person (including, without limitation, Contractor's and User's employees) for
personal injury, death or loss of or damage to property resulting from the
indemnitor's active or passive negligence or willful misconduct. Where
personal injury, death, or loss of or damage to property is the result of
joint active or passive negligence or willful misconduct of User and
Contractor, the indemnitor's duty of indemnification shall be in proportion
to its allocable share of joint active or passive negligence or willful
misconduct. If User is strictly liable under Law, Contractor's duty of
indemnification shall be in the same proportion that the negligent acts or
omissions of Contractor contributed to the personal injury, death, or loss of
or damage to property for which User is strictly liable.
9.4 TEXAS LIMITS
If Chapter 127 of the Texas Civil Prac. & Rem. Code, or any successor
statute, applies to any provision of this Agreement, the indemnity
obligations of Contractor shall be limited to and supported by available
liability insurance coverage, at Contractor's expense, as follows:
(a) with respect to a mutual indemnity obligation, the indemnity
obligation is limited to the extent of the coverage and dollar
limits of insurance or qualified self-insurance each party as
indemnitor has agreed to provide in equal amounts to the other
party as indemnities; and
(b) with respect to a unilateral indemnity obligation, the amount of
insurance required shall not exceed $500,000.
ARTICLE 10: CONFIDENTIAL INFORMATION, COPYRIGHTS, PATENTS AND
PATENT INDEMNITY
10.1 CONTRACTOR'S DUTY OF CONFIDENTIALITY
Contractor shall hold in confidence all business and technical information
that is made available to Contractor, directly or indirectly, by Customer or
User or developed or acquired by Contractor in performance of its Services
under each Work Order (collectively "Confidential Information"), except:
(a) information which is in or becomes, without fault of Contractor,
part of the public domain;
(b) information which Contractor can show was received by Contractor from
an independent third party that is under no obligation to Customer or
User regarding the information;
(c) information which Contractor can show was already in Contractor's
possession at the time the information was made available to
Contractor, directly or indirectly, from Customer or User;
(d) information required to be disclosed by Law or valid legal or
regulatory process, following notice by Contractor to Customer or
applicable User of the requirement to disclose and reasonable
cooperation with any attempt by Customer or applicable User to
maintain the confidentiality of such Confidential information.
Contractor also agrees that it shall not take any photographs, video or other
recordings of Customer or any of its Affiliate's property without Customer's
or User's prior written consent.
10.2 CONTRACTOR's USE OF CONFIDENTIAL INFORMATION
Contractor shall not, without the prior written approval of Customer or User
as appropriate, use the Confidential Information which Contractor is required
to keep confidential hereunder for any purpose other than the performance of
Services under the applicable Work Order.
10.3 CONTRACTOR's INFORMATION
Neither Customer nor User shall have any obligation of confidence with
respect to any information disclosed to Customer or User by Contractor, and
Customer and User shall be free to use or disclose any or all of the
information contained in any drawing, record or other document to third
parties without accounting to Contractor therefor; unless, however,
information is specifically covered by a separate, written confidentiality
agreement. In the absence of any confidentiality agreement, Contractor shall
not place any restrictive notices on any information, no matter the form of
its recording, that Contractor provides to Customer or User hereunder. Should
Contractor place any notices on any drawing, record or other document,
Customer and User are hereby authorized to nullify, obliterate, remove, or
disregard those provisions.
10.4 COPYRIGHTS AND OWNERSHIP OF DOCUMENTS
All tracings, drawings, field notes, requisitions, purchase orders,
specifications, computer programs (data files and other software in whatever
form), and other documents or records ("Documents") developed by Contractor
in connection with any Work Order shall be the sole property of User.
Contractor shall provide the original and all copies of the Documents to User
when Services are completed or earlier upon User's written request.
Contractor may, with the prior written approval of User, retain one archival
copy of Documents. Contractor may, with the prior written approval of User,
retain one archival copy of Documents. Contractor shall keep any approved
archival copy confidential and shall not use it directly or indirectly in
providing any services to any other person or entity for any other purpose
unless Contractor is required by Law or legal process to disclose the copy.
If required by Law or legal process to disclose, Contractor shall promptly
notify Customer and the applicable User of the purpose and requirements of
the disclosure. Contractor hereby assigns the copyrights in all Documents to
User.
10.5 OWNERSHIP OF INVENTIONS
If Contractor or its personnel makes any inventions, patentable or
unpatentable, resulting from Contractor's activities hereunder, Contractor
shall promptly disclose those inventors to user in writing. Inventions
covered in this Section 10.5 shall include these conceived during the term of
the Work Order between User and Contractor and within one (1) year
thereafter. Further, Contractor hereby assigns each invention to User.
Contractor also shall require its employees to execute such papers as User
requests in connection with any assignment and in connection with the
acquisition of letters patent, U.S. and foreign, on any inventions.
Page 3 of 6
10.6 Infringement Notice and Indemnification
If either Contractor or User is made the subject of any claim or lawsuit
based on the alleged infringement of any third-party patent, copyright or
trade secret by reason of any aspect of the materials or services provided
hereunder, it shall promptly notify the party thereof in writing. User shall
defend and indemnify Contractor against those claims or lawsuits based on the
actual or alleged infringement of any third-party right by the Contractor
only to the extent that Contractor's allegedly infringing conduct is
expressly required by User's specification or expressly required in writing
by User. This indemnity shall not extend to conduct of Contractor which is
discretionary to Contractor. Contractor shall defend and indemnify User
against all other claims or lawsuits based on the actual or alleged
infringement of any third-party right. The indemnities set forth in this
Section 10.6 shall include, without limitation, all penalties, awards, and
judgments; all courts and arbitration costs; attorneys' fees; and other
reasonable out-of-pocket cost incurred in connection with such claims or
lawsuits. The indemnifying party shall have the right to control the defense
of any litigation, and to settle or compromise all claims and lawsuits
subject to its indemnify. However, the indemnifying party may not settle or
compromise such claim or lawsuit without the written consent of the
indemnified party if any settlement or compromise (a) requires the
indemnified party to part with any right or make any payment not indemnified,
or (b) subjects the indemnified party to any injunction. Subject to the
foregoing, the indemnified party shall have the right, at its option and
expense, but not the obligation, to retain advisory counsel to represent its
interests in defending any such claim or lawsuit.
If any action results in an injunction against User with respect to the
Services, materials or facilities provided under any Work Order, Contractor
agrees that it shall, at its option and its sole expense, either (1) procure
for User the right to continue using the infringing subject matter or (2)
replace or modify the same so that it becomes non-infringing.
ARTICLE 11: USE OF TRADEMARK AND PUBLICITY RELEASES
Neither Contractor nor any Subcontractors shall, without the prior written
consent of Customer or User:
(a) use the name or any trade name or registered trademark of Customer or
any of its Affiliates in any advertising or communications to the public
in any format except as necessary to perform Services; or
(b) make publicity releases or announcements regarding the Agreement, any
Work Order, the Services performed under any Work Order or any related
activities.
ARTICLE 12: AUDIT
Upon reasonable prior notice, User's employees and agents shall have access,
at all reasonable times, to all Contractor's and Subcontractor's personnel,
books, records, correspondence, instructions, plans, drawings, receipts,
vouchers, financial accounts, data stored in computer files or microfiche and
memoranda of every description pertaining to Services for the purpose at
verifying costs of any or all Services and Contractor's compliance with the
terms of the Agreement and any or all Work Orders. Contractor shall maintain
supporting data and accounting records in accordance with generally accepted
accounting practices, and User's employees and agents shall have the right to
reproduce any of these documents. Contractor shall preserve and shall cause
its Subcontractors to preserve all documents pertaining to Services for a
period of three (3) years after the completion and acceptance of such
Services or termination of the Agreement and all Work Orders, whichever
occurs first. Contractor agrees to include the necessary provisions in its
contracts with Subcontractors that shall assure access by User's employees
and agents to applicable records of Subcontractors. User shall not be liable
for any of Contractor's or Subcontractor's costs resulting from an audit
hereunder.
ARTICLE 13: BUSINESS STANDARDS, ACCURACY OF RECORDS, AND LEGAL COMPLIANCE
13.1 Business Standards
Contractor, in performing its obligations under each Work Order, shall
establish and maintain in effect appropriate business standards, procedures
and controls to avoid any real or apparent impropriety that might affect
adversely or conflict with the interests of Customer or any of its
Affiliates, including:
(a) ensuring all payments by User to Contractor are solely received by
Contractor for its own account; and
(b) ensuring Contractor does not offer, give or pay any part of any
payments received under subsection (a) to any government official,
political party or official or any candidate for political office.
Contractor shall exercise all reasonable care and diligence to prevent any
actions or conditions which could result in a conflict with Customer's or
User's best interests. This obligation shall apply to the activities of the
employees, agents and Subcontractors of Contractor in their relations with
the employees of Customer and User and their families and/or third parties
arising from the Agreement and each Work Order. These efforts shall include,
but not be limited to, establishing precautions to prevent their employees,
agents or Subcontractors making, receiving, providing or offering any
substantial gifts, extravagant entertainment, payments, loans, or other
considerations.
13.2 Accuracy of Records
Contractor agrees that all financial settlements, xxxxxxxx, and reports
rendered to User or its representative shall reflect properly the facts about
all activities and transactions handled for the account of User, which data
may be relied upon as being complete and accurate in any further recordings
and reportings made by User or its representatives for whatever purpose.
13.3 Compliance With Law
Contractor shall comply and secure compliance by its Subcontractors with all
Law applicable to the performance of any Services including, but not limited
to, those set out in the Federal Contract Supplement attached as Exhibit F.
13.4 Notice of Non-Compliance
Contractor agrees to notify User promptly upon discovery of any instance
where the Contractor fails to comply with Sections 13.1, 13.2 or 13.3 above.
If Contractor discovers or is advised of any errors or exceptions related to
its invoicing for Services, Contractor and User will together review the
nature of the errors or exceptions, and Contractor will, if appropriate,
promptly adjust the relevant invoice(s) or refund overpayments.
Page 4 of 6
ARTICLE 14: DEBRIS AND TRASH
FOR SERVICES PERFORMED AT USER'S REFINERY OR CHEMICAL PLANT:
During the performance of Services under any Work Order(s) and upon their
termination or completion, contractor shall accumulate onsite all debris and
trash material resulting from Contractor's operations and keep and leave any
Work Sites where Services are performed in a condition satisfactory to User.
User shall provide instructions for disposition of all debris and trash.
FOR SERVICES PERFORMED AT ANY LOCATION EXCEPT USER'S REFINERY OR CHEMICAL
PLANT:
During the performance of Services under any Work Order(s) and upon their
termination or completion. Contractor shall at it sole expense remove all
inert debris and municipal trash material resulting from Contractor's
operations and keep and leave any Work Sites where Services are performed in a
condition satisfactory to User.
ARTICLE 15: MANAGEMENT OF WASTE
Contractor and its Subcontractors shall, in performing Services, have the
responsibility and liability for the proper management of wastes according to
all applicable Laws and regulations. In particular, Contractor and its
Subcontractors shall:
(a) Implement procedures to minimize the generation of waste.
These procedures shall include, at a minimum, process
substitution, materials recovery, and continued product
use. When possible, Contractor shall select less toxic
alternatives to minimize hazardous waste generation;
(b) consolidate (with like product) partially full containers of
paint, solvent, chemicals, and other products whenever possible,
to minimize waste and allow use of the remaining product;
(c) ensure that any empty containers to be discarded are deemed
"empty" in accordance with 40 CFR 261.7 or applicable state
regulations;
(d) not commingle waste they generate with any waste generated by
User or others without prior written consent of User;
(e) segregate hazardous waste from non hazardous waste at all times;
(f) either return to the supplier for credit, or transfer to
Contractor's storage facility or next job site for use, any
unused and still usable materials belonging to Contractor; and
(g) control waste generation activities, to the extent possible, to
fall within the conditionally exempt small quantity or small
quantity generator regulations under the Resource Conservation
and Recovery Act, as amended, and its regulations ("RCRA") and
any applicable state regulations;
IN ADDITION TO (a) THROUGH (g) ABOVE, FOR SERVICES PERFORMED AT
USER'S REFINERY OR CHEMICAL PLANT:
(h) not transfer waste to any off-site facility without User's
prior written consent.
Contractor and its Subcontractors shall also ensure that all waste is handled
in compliance with any Exhibits relating to the management of waste that are
made a part of this Agreement or any Work Order.
ARTICLE 16: DATA INTEGRITY
Contractor shall be accountable for the integrity of any test or measurement
data, including its generation, recording, reporting and retention, provided
by Contractor, its agents or any Subcontractors to User or to any third
party(s) on behalf of User. Contractor agrees that for any such data:
(a) Measurement activities and information reported from
measurement shall be complete, accurate, and timely.
(b) Specified industry standard test methods and instrument
calibration procedures shall be used without modification,
unless that modification has been approved by industry
standard and/or by User.
(c) A quality assurance system shall be in place for any laboratory
facility involved. This system shall serve to deter, detect and
correct the generation and communication of incorrect data and
shall include the maintenance and calibration of measurement
instruments.
(d) Testing and measurement personnel involved shall be trained in
the necessary skills involved in data generation and data
management. This shall include initial and ongoing personnel
training, testing, and verification of knowledge transfer.
(e) Contractor shall utilize a self-monitoring and assessment
system to determine the extent to which the requirements above
are being met. This system shall include the resolution of all
problems found in the assessments, with plans and
responsibilities for appropriate follow-up.
ARTICLE 17: FORCE MAJEURE
17.1 Definition
For the purposes of each Work Order, "Force Majeure" means any event beyond
the control and without fault or negligence of the party claiming inability
to perform its obligations and which party is unable to prevent or provide
against by the exercise of reasonable diligence, including but not limited
to: acts of God or public enemy; expropriation or condemnation of facilities;
changes in applicable Law; war, civil disturbance, floods, unusually severe
weather that could not reasonably have been anticipated; fires, explosions or
other catastrophes; and strikes. Inability to pay moneys or financial
hardship shall not, however, constitute events of Force Majeure.
17.2 Effect of Force Majeure
No delay or failure in performance by User or Contractor shall constitute
default under the Work Order if, and to the extent, the delay or failure is
caused by Force Majeure. Unless the Force Majeure substantially frustrates
performance of the Services under the Work Order, Force Majeure shall not
operate to excuse, but only to delay performance of Services. If Services are
delayed by reason of Force Majeure, Contractor shall promptly notify User.
Contractor shall do all things reasonably possible to mitigate and remove the
Force Majeure event, except a strike, and shall resume performance under the
Work Order as soon as possible. In no event shall User be liable to
Contractor and Contractor shall hold User harmless for Contractor's,
Subcontractor's, and their employees' damages, anticipated profits, or other
sums or payments occasioned by the event.
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ARTICLE 18: RIGHT OF REMOVAL
Contractor shall promptly remove from any Work Site any employee of
Contractor, any Subcontractor or any employee of Subcontractor performing
Services under any and all Work Orders, as the applicable User may for any
reason designate. CONTRACTOR HEREBY RELEASES AND FOREVER DISCHARGES AND HOLDS
HARMLESS CUSTOMER AND USER FROM ANY COSTS, CLAIMS, LOSSES, AND DAMAGES OF ANY
KIND WHATSOEVER BASED ON NEGLIGENCE, DEFAMATION, WRONGFUL DISCHARGE OR
OTHERWISE WHICH CONTRACTOR MAY SUFFER, SUSTAIN, PAY OR INCUR AS THE RESULT
OF ANY REMOVAL.
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ARTICLE 19: DEPARTMENT OF DEFENSE AND MILITARY EMPLOYMENT
Contractor warrants that no person will provide personal services for any
User under this Agreement who was employed by the armed forces (other than
U.S. Coast Guard) or the Department of Defense with a pay grade of GS-13 or
higher, or armed forces pay grade of 0-4 or higher, within two years of
beginning to perform Services for User.
ARTICLE 20: HEADINGS
The headings in this Agreement permitting Users to obtain Services through
the issuance of Work Orders and in the contract formed by each Work Order are
for ease of reference only and shall not be used to construe or interpret the
provisions of the Agreement or Work Order.
ARTICLE 21: SEVERABILITY
If any provision or portion of this Agreement or any Work Order incorporating
this Agreement shall be adjudged invalid or unenforceable by a court of
competent jurisdiction or by operation of any applicable Law, such provision
or portion of this Agreement or the Work Order shall be deemed omitted and
the remaining provisions shall remain in full force and effect.
ARTICLE 22: WAIVER
No waiver by a party of a right or default under either this Agreement
permitting Users to obtain Services through the issuance of Work Orders or
the contract formed by each Work Order shall be effective unless in writing.
No such waiver shall be deemed a waiver of any subsequent right or default of
a similar nature or otherwise.
ARTICLE 23: ATTORNEY'S FEES
Should it become necessary for Customer and/or User to engage in legal
proceedings for the purposes of (a) enforcing either this Agreement permitting
Users to obtain Services through the issuance of Work Orders or the contract
formed by any Work Order, or (b) recovering damages sustained by Customer
and/or User due to Contractor's breach of the Agreement or the contract
formed by any Work Order, Customer and/or User shall be entitled to
reimbursement by Contractor for costs, attorneys' fees and any other
reasonable expenses incurred in connection with those legal proceedings.
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