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Definitions.
When used with initial capitals, the following definitions shall apply to this Subcontract. Unless defined below, words shall have their plain and ordinary meaning.
Final Acceptance means Company’s written acknowledgment that all obligations of Subcontractor under this Subcontract have been completed except for obligations which Company has waived or excused in writing and except for obligations of Subcontractor that survive termination of this Subcontract such as warranty and indemnity.
Hazardous Materials mean hazardous substances, hazardous wastes, toxic pollutants, chemical substances or mixtures, imminently hazardous chemical substances or mixtures, contaminants, pesticides, source materials, special nuclear materials, by-product materials, residual radioactive materials, toxic materials, harmful physical agents, air pollutants, regulated substances, or other hazardous substances defined as such by any applicable Laws or whose purchase, possession, transportation, use, or disposal is controlled by any applicable Law.
Lower Tier Subcontractor means any person, at any tier, who has a contract with Subcontractor or with any other Lower Tier Subcontractor to perform a portion of the work at the Project Site.
Professional Services mean the performance of engineering, design, consulting, testing, or other technical services performed by persons specially licensed, certified, or otherwise acknowledged to have specialized training, experience, and skills in the art. Professional Services require the exercise of skilled judgment and expertise in addressing and completing the work.
Project means the total effort being undertaken by the Owner, of which the work performed under this Subcontract may be the whole or may be a part, and which may include work by other subcontractors to Company or by Company or by Owner’s own forces including Persons under separate contracts with Owner.
Project Site means the land and other places on, under, in, or through which the work is to be installed, executed, or carried out, and any other lands or places provided for the purposes of the Project, together with such other places as may be specifically designated in this Subcontract as forming part of the Project Site. Where the work is but a part of the Project, Subcontractor may be granted access to the particular part of the Project Site where the work is to be performed, but not necessarily to the entire Project Site.
Representative means the person designated by a Party to send and receive any Notices that may be required and to bind the Party he or she represents with regard to all matters related to this Subcontract.
Site Manager means Company’s identified representative on the Project Site.
Specifications mean the documents identified as such or referred to in this Subcontract and which sets forth the technical requirements for the work and for the performance of related Services.
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General.
The Subcontract constitutes the complete integrated agreement between the Company and Subcontractor regarding the work, and it supersedes all prior agreements or undertakings. Any exceptions or additional terms in Subcontractor's bid or proposal are hereby rejected. Said bid or proposal does not form any part of this Subcontract. No course of prior dealing or performance between Company and Subcontractor or industry usage shall be construed or interpreted to modify any term, condition, requirement, or instruction set forth in the Subcontract.
Contract Documents include: (a) this Agreement and (b) any exhibits, appendices, forms, specifications, drawings, or other attachments. In the event of a conflict within the Contract Documents, this Agreement shall prevail.
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Representations by Subcontractor.
3.1. Subcontractor represents that it has thoroughly examined the Subcontract; has studied all information provided or otherwise made available by Company; and is experienced, qualified, and licensed (to the extent required by applicable laws) to perform the work.
3.2. Authority and Ability. Subcontractor warrants that it has the required authority, ability, skills and capacity to perform, and shall perform, the work in a manner consistent with prudent industry practice utilizing sound engineering principles.
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Intellectual Property.
Subcontractor warrants that it owns or has the right to use all the patents, trademarks, service marks, trade names, copyrights, licenses, franchises, permits or rights with respect to the foregoing, necessary to perform the Work and to carry on its business as presently conducted and presently planned to be conducted without conflict with the rights of others.
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Scope of Work.
The Subcontractor’s detailed scope of work is set forth in the Contract Documents. Subcontractor shall provide all resources, including goods, labor, construction works, materials and Equipment, Services, supervision, and management, necessary to fulfill Subcontractor’s obligations under this Subcontract.
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Price and Payment.
The Subcontract Price and payment terms are set forth in the Contract Documents.
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Schedule.
The Subcontract Schedule for the performance of Subcontractor’s work is set forth in the Contract Documents. Subcontractor shall not begin any physical work on the Project Site until it receives written notifications from Company. Subcontractor agrees and acknowledges that time is of the essence in the performance of this Subcontract. In addition, several subcontractors will be working on the Project Site at the same time, and Subcontractor will have to coordinate its activities with those of Company and other subcontractors. At times, this will require Subcontractor to focus on activities other than those most critical to the Subcontract Schedule.
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Independent Contractor.
Subcontractor is and shall operate as an independent contractor in the performance of the work and not as an agent or employee of Company or Owner. Nothing contained in this Subcontract is intended nor shall be construed as creating any contractual relationship between any Persons other than Company and Subcontractor.
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Lower Tier Subcontractors and Suppliers.
Subcontractor shall not subcontract performance of any portion of the work without prior written notice to Company. Subcontractor shall not subcontract any portion of the work to any Person that has a direct contractual relationship with Company or Owner. Failure of Subcontractor to comply with this Section 9 may, at the sole discretion of Company, be deemed to be a material breach of this Subcontract.
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Labor Relations.
Subcontractor shall strictly comply with all the work rules and site conditions per the Contract Documents and any procedures established by Company or Owner for employee conduct at the Project Site.
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Environmental, Health and Safety.
Subcontractor acknowledges and agrees that its paramount obligation under this Subcontract is to perform its work in a safe manner. To that end, Subcontractor shall, at a minimum, perform its work in accordance with Company’s Project-Specific Health, Safety and Environmental policies per the Contract Documents. Prior to mobilizing at the Project Site, Subcontractor shall designate a Representative who shall have overall responsibility for implementing the requirements of the Project Safety Plans. Hazardous materials. Subcontractor shall be solely responsible for any Hazardous materials that it brings to the Project Site including reporting, accounting, licensing, care, transportation, storage, use, treatment, and disposal. In carrying out its obligations under this Section 10, Subcontractor shall comply with the Project Safety Plans and all applicable Laws.
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Cleanup.
Subcontractor acknowledges and agrees that cleanliness is an important factor in creating a safe work environment. Subcontractor shall at all times keep its work areas in a neat, clean, and orderly condition and shall promptly and properly dispose of all debris and rubbish resulting from Subcontractor’s operations.
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Permits and Licenses.
Subcontractor shall promptly apply for and procure, without additional compensation, all certificates, licenses, permits, and similar permissions required by applicable laws except for such permits as may be specifically set forth as Company’s or Owner’s responsibility elsewhere in the Subcontract.
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Submittals.
Subcontractor shall submit to Company all deliverables required by the Subcontract in accordance with the Contract Documents.
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Expediting, Testing, and Inspection.
In addition to tests that may be specified elsewhere in this Subcontract, Company and Owner shall have the right, but not the obligation, to inspect and test Subcontractor’s work at any time, to ensure compliance with the requirements of the Subcontract.
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Subcontractor’s Shipments.
Subcontractor shall be responsible for shipping all Subcontractor-supplied materials and equipment and construction works to the Project Site including any required export licenses and customs clearance.
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Title and Risk of Loss.
Title to all goods, materials, equipment, and software supplied by Subcontractor in the performance of its work shall pass to Company on the earlier of (i) delivery to the Project Site or (ii) Subcontractor’s receipt of payment from Company. Regardless of which Party has title, risk of loss shall remain with Subcontractor until Company assumes care, custody, and control or until Final Acceptance, whichever is earlier.
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Protection of the Work.
Regardless of who may hold title, Subcontractor shall be responsible for protection of the work, including any goods or materials and Equipment furnished to Subcontractor by others, until Company assumes care, custody, and control or until Final Acceptance, whichever is earlier. Until that time, Subcontractor shall take all necessary precautions to protect the work from damage by the elements or by other construction activities.
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Warranty of the Work.
19.1. Subcontractor warrants that (i) the materials and equipment furnished under the Subcontract will be of good quality and new unless otherwise required or permitted by the Subcontract, (ii) the work will be free from defects, (iii) the work will be done in a professional and workmanlike manner in accordance with prudent industry practice, and (iv) the work will conform to the requirements of the Subcontract.
19.2. The Warranty Period is twelve (12) months from completion of the work. Nothing contained in this section is intended nor shall be construed to limit any other obligations which the Subcontractor may have under the terms of the Subcontract.
19.3. At any time prior to the end of the Warranty Period, Subcontractor shall replace, repeat, repair, retest, re- inspect, or otherwise correct any portion of the work that fails to conform to the warranties in Section 19.1. Subcontractor shall perform any such Corrective work at its sole expense and in a reasonable time. In addition, Subcontractor shall be liable for the cost of correcting any work of Owner, Company, or other contractors or subcontractors that is destroyed or damaged by Subcontractor's Corrective work or by removal of Subcontractor’s defective work.
19.4. Company shall have the right to assign Subcontractor’s warranties to Owner or to other third parties.
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Warranty of Title.
Subcontractor warrants that title to the work, including the materials, equipment and software, shall be clear, marketable, and free of any defects, liens, charges, or encumbrances whatsoever.
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Changes.
Company shall have the right to direct Subcontractor to make changes in the work that are within the general scope of the work including additions, deletions, and revisions in the goods, the materials and equipment, the construction works, or the Subcontract Schedule. To the extent that any such change impacts Subcontractor’s cost of or time for performance, the Subcontract Price and Subcontract Schedule shall be equitably adjusted to compensate for such impact. Changes shall be accomplished using Request for Change Proposals, Change Order Requests (“COR”), Change Orders, or a combination thereof.
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Change Orders.
22.1. A Change Order (“CO”) is a formal written instrument stating (i) the change in the work, (ii) the adjustment, if any, in the Subcontract Price, and (iii) the adjustment, if any, in the Subcontract Schedule.
22.2. Upon receipt of a properly documented COR, the Parties shall negotiate in good faith to determine whether Subcontractor is entitled to a Change Order and, if so, the appropriate equitable adjustment, if any.
22.3. If the Parties are unable to agree on the disposition of a COR, Company will either (i) issue a Notice denying Subcontractor’s request or (ii) issue a unilateral Change Order setting forth Company’s final determination regarding the adjustments. If Subcontractor disagrees with Company’s determination, it may pursue the matter under Section 45 (“Disputes”). Pending resolution of the dispute, Subcontractor shall continue to perform its work, including the disputed work, in accordance with the Subcontract and the Company’s Directives.
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Claims.
A Claim is a written demand by Subcontractor seeking an adjustment in the Subcontract Price or Subcontract Schedule or some other relief under the terms of the Subcontract Documents for events other than a COR. Subcontractor shall provide Notice to Company of any potential Claim within seven (7) days after the event giving rise to the Claim. Within fifteen (15) days thereafter, Subcontractor shall submit a COR for any claimed cost or Subcontract Schedule impacts.
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Waiver.
Subcontractor hereby expressly waives any right to an equitable adjustment in the Subcontract Price or the Subcontract Schedule; (i) for any event that Subcontractor fails to pursue in accordance with this agreement, (ii) for work done by Subcontractor without a Company Directive or Change Order, (iii) for work done before filing a Notice of Claim, or (iv) for claims asserted after Subcontractor submits its final invoice.
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Final Completion and Acceptance.
Final Completion of the work shall be deemed to have occurred when all of the following have been completed: (i) the work, including any punch list items, has been fully completed in accordance with the requirements of the Subcontract; (ii) all inspections and tests have been successfully completed; (iii) all deliverables including any required operation and maintenance manuals, special tools, and operating certificates have been submitted; (iv) all Subcontractor’s, supplies, rubbish, construction works, excess materials and equipment, and temporary facilities have been removed from the Project Site; and (v) all Subcontractor’s Lower Tier Subcontractors and Suppliers have been paid in full as shown by properly executed lien releases.
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Suspension of the Work.
26.1. Company shall have the unilateral right to suspend performance of the work, in whole or in part, by giving Notice to Subcontractor specifying the extent to which the work is suspended and the effective date of such suspension. Subcontractor shall suspend performance of the work to the extent that the Notice so specifies but shall continue to perform any portion of the work not suspended. To the extent that any such suspension affects Subcontractor’s cost of or time for performance, the Subcontract Price and Subcontract Schedule shall be equitably adjusted to compensate for such impact.
26.2. All requests for adjustment in the time or cost for performance under this Section 26 shall be submitted to Company in accordance with the provisions of Section 38 (“Notices”).
26.3. Subcontractor shall not be entitled to an amount greater than the amount received from Owner that is attributable to the work.
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Termination for Convenience.
27.1 Company shall have the unilateral right to terminate this Subcontract, in whole or in part, for its convenience, by giving Notice to Subcontractor specifying the extent to which the Subcontract is terminated and the effective date of such termination. Subcontractor shall discontinue performance of the work to the extent that the Notice so specifies but shall continue to perform any portion of the work not terminated. To the extent that any such termination affects Subcontractor’s cost of or time for performance, the Subcontract Price and Subcontract Schedule shall be equitably adjusted to reflect any such impact.
27.2 Subcontractor, if and to the extent requested to do so by Company, shall promptly assign to Company, or Owner, in form and content satisfactory to Company, Subcontractor’s rights, title and interest to the materials and equipment and construction works purchased for or committed to the terminated work (whether completed or in progress), and work in progress and completed work (whether at Project Site or at other locations), or shall otherwise dispose of same in accordance with the Company's Directives.
27.3 Subject to Subcontractor’s compliance with the provisions of this Section 27 and other applicable sections of the Subcontract, Subcontractor shall recover from Company, as complete, full, and final settlement for such terminated work, a sum equal to its actual direct cost for the terminated work satisfactorily performed as of the effective date of termination, plus an allowance for reasonable overhead and profit on such direct cost of the work performed, provided, however, that such a sum does not exceed a pro rata portion of the Subcontract Price, commensurate with the ratio that the terminated work performed by Subcontractor and accepted by Company as of the effective date of the termination bears to the entire work specified under this Subcontract prior to termination. Any payment to Subcontractor hereunder shall be less any amounts previously paid to Subcontractor. In addition, Subcontractor shall recover from Company its reasonable and direct costs incurred to terminate its subcontracts, including lease and rental agreements, supply agreements, and other commitments. In no event, however, shall the total payment to Subcontractor under this Section exceed the Subcontract Price prior to termination. Subcontractor shall not be entitled to recover indirect, special, incidental, consequential or exemplary damages; including loss of profits or revenue on work not performed.
27.4 All requests for compensation under this Section 27 shall be submitted to Company in accordance with the provisions of Section 38 (“Notices”).
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Termination for Default.
28.1 If Subcontractor is in breach of its obligations under this Subcontract and Subcontractor fails to correct any such condition within seven (7) days after receipt of Notice from Company, Company may, without any further Notice or prejudice to any other right or remedy, terminate the Subcontract for default.
28.2 In the event of a termination for default, Subcontractor shall be liable to Company for all Losses incurred by Company arising from the default including all costs to complete the terminated work. Upon termination under this Section, Company may withhold any further payments to Subcontractor unless and until all of the work, including the terminated work, has been completed and Accepted by Company. Company shall thereafter determine the Losses incurred by Company as a result of the termination. If the Losses are less than the unpaid balance of the Subcontract Price, Company shall pay the difference to Subcontractor. If the Losses exceed the unpaid balance of the Subcontract Price, Subcontractor shall promptly, after receipt of Company’s invoice, pay to Company the amount of such excess. Subcontractor shall continue to be fully liable to Company for all other damages to Company. If the Subcontract is terminated under this Section and it is later determined or adjudged that there was no default, such termination shall be considered to be a termination for convenience and not a breach of contract, and the provisions of Section 26 (Termination for Convenience) shall apply.
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Insurance.
Subcontractor shall maintain the insurance coverage described in the Contract Documents.
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Indemnity.
30.1 TO THE EXTENT ARISING OUT OF OR RELATED TO ITS PERFORMANCE OF THE WORK, SUBCONTRACTOR AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND COMPANY, OWNER, AND LENDERS (THE “INDEMNIFIED PARTIES”) FROM AND AGAINST ANY LOSSES ARISING:
- ON ACCOUNT OF INJURY, ILLNESS, OR DEATH OF ANY PERSONS INCLUDING THE EMPLOYEES OF THE INDEMNIFIED PARTIES, SUBCONTRACTOR, ITS LOWER TIER SUBCONTRACTORS, SUPPLIERS, AND OTHER THIRD PARTIES,
- INJURY TO OR DESTRUCTION OF TANGIBLE PROPERTY,
- FROM FAILURE OF SUBCONTRACTOR TO COMPLY WITH ANY LAWS,
- FROM CLAIMS BY ANY COLLECTIVE BARGAINING GROUP OR INDIVIDUAL EMPLOYEE THAT SUBCONTRACTOR HAS FAILED TO PAY WAGES, BENEFITS, WITHHOLDINGS, DUES, OR ASSESSMENTS,
- FROM FAILURE TO PAY EMPLOYEES, LOWER TIER SUBCONTRACTORS OR SUPPLIERS,
- ANY FRAUDULENT OR NEGLIGENT USE OF SUBCONTRACTOR’S INFORMATION SYSTEMS BY A THIRD PARTY, INCLUDING, BUT NOT LIMITED TO E-MAIL OR
- FROM THIRD-PARTY CLAIMS (including from owner) THAT THE WORK IS DEFECTIVE OR DOES NOT COMPLY WITH THE CONTRACT DOCUMENTS.
30.2 SUBCONTRACTOR AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE INDEMNIFIED PARTIES FROM AND AGAINST ANY LOSSES TO THE EXTENT ARISING OUT OF OR RESULTING FROM ANY THIRD-PARTY CLAIM OR THREAT THEREOF THAT THE WORK (AND THE EXERCISE OF THE RIGHTS GRANTED HEREIN WITH RESPECT THERETO) INFRINGES, MISAPPROPRIATES OR VIOLATES ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET, PUBLICITY, PRIVACY OR OTHER RIGHTS OF ANY THIRD PARTY. IN CASE THE WORK OR ANY PORTION THEREOF BECOMES (OR SUBCONTRACTOR BELIEVES IS LIKELY TO BECOME) THE SUBJECT OF AN INFRINGEMENT CLAIM, SUBCONTRACTOR SHALL AT ITS EXPENSE AND OPTION (I) PROCURE FOR COMPANY OR OWNER THE RIGHT TO CONTINUE TO USE THE WORK, (II) REPLACE THE SAME WITH A NON-INFRINGING PRODUCT OR PART, OR (III) MODIFY THE SAME SO IT BECOMES NON-INFRINGING.
30.3 THE PROVISIONS OF THIS SECTION SHALL SURVIVE FINAL ACCEPTANCE AND THE TERMINATION OF THIS SUBCONTRACT.
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Waiver of Consequential Damages.
EXCEPT FOR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, FOR SUBCONTRACTOR’S INDEMNIFICATION OBLIGATIONS, OR FOR A BREACH OF CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES TO GOODS OR FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF PROFITS OR LOSS OF GOODWILL) REGARDLESS OF (I) WHETHER EITHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (II) THE LEGAL THEORY UPON WHICH SUCH CLAIM IS BASED, INCLUDING, BUT NOT LIMITED TO, THEORIES BASED ON WARRANTY, CONTRACT, NEGLIGENCE, PRODUCTS LIABILITY OR RELIANCE. Any express remedy herein, including any Liquidated Damages, shall not be deemed consequential damages within the meaning of this Section 31.
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Limitation of Liability.
Except for a party’s gross negligence or willful misconduct, for Subcontractor’s indemnification obligations, or for a breach of confidentiality obligations, a party’s liability to the other party shall not exceed the Subcontract Price. The foregoing limitation upon Subcontractor’s liability shall apply under any theory of recovery, including contract, warranty, tort (including negligence whether actual, imputed, or presumed by operation of law), or strict liability.
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Force Majeure.
Neither party shall be liable for any delay or default caused by an “excusable delay.” “Excusable delay” is any delay that results without fault or negligence on the part of either party and which is due to causes beyond either party’s control which may include but is not limited to: acts of God or public enemy, terrorism, any preference, priority or allocation order issued by the government or any other act of government, fines, floods, strikes, terrorist actions, embargoes, unusually severe weather, market failures and delays of vendors, subcontractors or Company due to such causes. If any such Excusable Delay continues beyond sixty (60) calendar days so that the purpose of this Agreement is frustrated, or if the Excusable Delay cannot reasonably be remedied within sixty (60) days, the non-delaying party may at its option terminate this Agreement without further liability by each party to the other except for work already done and not paid for.
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Avoidance of Liens.
Third party Liens - Subcontractor shall promptly pay for all things including Services, labor, construction works, materials and equipment, and goods used or furnished by Subcontractor in the performance of the work and shall, at its sole expense, keep the Project free and clear of any Liens. If Subcontractor fails to release and discharge any such lien against the Project within seven (7) days after receipt of Notice from Company or Owner to remove such lien, Company or Owner may, at its option, pay, discharge, or release the lien or otherwise deal with the lien claimant. In the event that Company or Owner elects to pay any such lien claim, the amount of such payment shall be considered reasonable. Subcontractor shall be liable to Company or Owner, as applicable, for any Losses incurred by Company or Owner in resolving lien claims including reasonable attorney fees and court costs. Company shall be entitled to deduct such costs from payments otherwise due to Subcontractor.
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Liens by Subcontractor – Unless otherwise required by statute, the Parties agree that Company may discharge any Lien filed by Subcontractor by posting a surety bond with a penal sum equal to 100% of the lien claim amount.
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Proprietary Information.
36.1 Unless required by applicable Laws, neither Party shall disclose to third parties, other than to Owner, information obtained from the other Party in the performance of this Subcontract which has been designated by that Party as confidential or proprietary information (“Confidential or Proprietary Information”).
36.2 This obligation shall not apply to any information (a) in the public domain, (b) already in the Party’s possession free of any confidentiality agreement and not obtained from the other Party, (c) provided to a Party from a third party free of any confidentiality obligation and not obtained from the other Party, or (d) independently developed. Nothing in this Section shall limit or preclude either Party from use of Confidential or Proprietary Information in its possession prior to the execution of this Subcontract in accordance with the terms of any agreements governing such use.
36.3 Either Party shall have the right, without the other Party’s approval, to disclose Confidential or Proprietary Information to the limited extent required to comply with any request or order of a governmental agency or court. If a Party intends to disclose Confidential or Proprietary Information to any governmental agency or court, that Party shall, to the extent it does not violate or fail to comply with any such request or order, advise the other Party prior to disclosure and cooperate in any effort by the other Party to minimize the amount of Confidential or Proprietary Information disclosed, secure confidential treatment of such Confidential or Proprietary Information, or seek permission from such governmental agency or court to revise the Confidential or Proprietary Information in a manner consistent with both Party’s interests and in a manner which meets the requirements of the governmental authority or court.
36.4 The Prime Contract, the Subcontract, and any other information issued to or made available to Subcontractor by or through Company or Owner in connection with the work Are Proprietary Information whether or not so marked by Company or Owner. All such Proprietary Information furnished by Company or Owner to Subcontractor shall remain Company’s or Owner's property. Upon completion of the work, Subcontractor shall, as requested by Company, either destroy or return such documents including any copies thereof except that Subcontractor may retain one copy for its records.
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Assignment.
Subcontractor shall not sell, assign, or transfer any of its rights or obligations under this Subcontract, in whole or in part, by operation of Law, or otherwise, without the prior written consent of the Company.
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Notices.
Any Notice required by this Subcontract shall be in writing, signed by the Representative of the Party issuing the Notice, and delivered to the Authorized Representative of the other Party at the address given on the signature page of the Subcontract. A Notice shall be effective upon receipt or on the Notice's effective date, whichever is later. Notice shall not be made by telephone, telegraph, facsimile, or electronic mail.
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Severability.
Any invalid or unenforceable provision of this Subcontract shall be deemed severed from the Subcontract, and the balance of the Subcontract shall be reformed in such a manner as to effect, to the maximum extent possible, the original intent of the Parties.
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Modifications and Amendments.
No modification, amendment, rescission, waiver, or other change of or to this Subcontract shall be of any force or effect unless such modification, amendment, rescission, waiver, or other change is set forth in a fully executed Change Order.
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Publicity.
Subcontractor shall not issue news releases or publicize or issue advertising pertaining to the work or to this Subcontract without first obtaining the written approval of Company.
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English Language.
All document deliverables provided by Subcontractor shall be in the English language. Subcontractor shall bear all costs of translation and assumes all risk of such translation.
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Non-Waiver.
Any Party’s waiver of any breach or failure to enforce any of the terms, covenants, conditions, or provisions of this Subcontract at any time shall in no way affect, limit, modify, waive, or be deemed to affect, limit, modify, or waive that Party’s right thereafter to enforce or compel strict compliance with each term, covenant, condition, or provision of this Subcontract, any course of dealing or custom of the trade notwithstanding.
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Survival.
In order that the Parties may fully exercise their rights and perform their obligations hereunder arising from the performance of the work, any provisions of this Subcontract that are required to ensure exercise of such rights or performance shall survive the expiration or termination of this Subcontract regardless of the cause for such termination and regardless of whether or not such termination applies to all or only part of this Subcontract.
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Laws and Regulations
Subcontractor shall comply strictly with all Laws applicable to Subcontractor's work. Subcontractor shall not, under any circumstances, apply for any exception or variance from applicable Laws without Company's prior written approval. This Subcontract shall be interpreted and applied in accordance with the laws of the state where the Project Site is located without regard to that state’s choice or conflict of law rules or statutes.
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Dispute Resolution.
46.1 The Parties shall attempt to promptly resolve any claims, disputes, and other controversies (collectively, “Disputes”) arising out of or relating to the Purchase Order by negotiation between executives who have authority to settle the Dispute and who are at a higher level of management than the persons with direct responsibility for administration of the Purchase Order.
46.2 If the Dispute has not been resolved by negotiation as provided above and involves an amount in controversy greater than $50,000.00, then the Parties shall make a good faith effort to resolve and settle the dispute by mediation conducted by a neutral mediator in Indianapolis, IN. The mediator shall be selected by agreement of both Parties within five (5) business days after notice of a Dispute as provided herein. The costs of the mediator shall be shared equally by both Parties. If the amount in controversy is less than $50,000.00, or if the Dispute requires equitable or injunctive relief, then the Parties may elect to resolve the dispute by foregoing mediation and immediately proceeding with litigation in accordance with Section 46.3.
46.3 If the Parties are unable to resolve the Dispute through the aforementioned procedures, then federal and state courts located within Indiana will have exclusive jurisdiction to adjudicate any Dispute.
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Subcontractor Security Obligations
47.1 Subcontractor represents it complies with applicable data privacy laws and implements and maintains a comprehensive written information security program that includes reasonable technical and organizational security measures, procedures, and practices, that are designed to protect Company’s information and data against anticipated threats or hazards to its security, confidentiality, availability, or integrity. If Subcontractor uses third parties or suppliers in the course of performing the Subcontract, Subcontractor will ensure their compliance with the preceding sentence. Subcontractor will assist Company in meeting Company’s obligations under the applicable consumer privacy laws in relation to the security of processing personal information, including responding to a security assessment upon execution of this Agreement and no more than once annually.
47.2 Subcontractor will notify Company immediately (and in any event within 72 hours) whenever Subcontractor learns that there has been any accidental or unauthorized access, acquisition, use, modification, disclosure, loss, destruction of, or damage to Company’s information and data (each, a “Security Breach”) by e-mailing BastianITSecurity@bastiansolutions.com.
At Company’s request, Subcontractor will, at its own expense, provide reasonable assistance and cooperation as requested by Company, including investigating and remediating any Security Breach and mitigating any potential damage, include paying of fines and ongoing monitoring for the impacted systems.