EMBEE
TECHNOLOGIES SUBCONTRACTOR AGREEMENT
(revised as of 25 April
2011)
This
Subcontractor Agreement (hereinafter referred to as the “Agreement”) is made by
and between the following parties (hereinafter referred to collectively as “the
parties”):
1. Embee Computer Design Group, Inc., dba Embee Technologies (hereinafter referred to as
“Embee”), a business entity; and
2. The entity or individual described in
the “Scope of Work” as “Subcontractor,” (hereinafter referred to as
“Subcontractor”).
Each
of the parties enters into this Agreement on behalf of themselves, their
representatives, heirs, executors, administrators, trustees, predecessors,
successors, affiliates, subrogors, subrogees, lessees, lessors, grantees, assignees,
assignors, subsidiaries, parent corporations, agents, contractors, servants,
officers, directors, members, shareholders, owners, alter egos, attorneys,
general partners, limited partners, and representatives.
1. Recitals
1.01 WHEREAS, the Parties hereto desire to do
business with each other based on the Scope of Work, the Pricing Structure and
the Construction Drawings, respectively, all of which documents are
incorporated herein by reference, and;
1.02 WHEREAS, the Parties hereto desire to that
the parameters of their business relationship be clearly defined by this
Agreement;
1.03 THEREFORE, the parties have mutually agreed
to the following terms and conditions:
2. Deliverables
Subcontractor
shall deliver to Embee and Embee’s customer the work described in the Scope of
Work, the Pricing Structure and the Construction Drawings, respectively as set
forth therein.
3. Compensation
Embee shall pay
Subcontractor for the deliverables as set forth in the Pricing Structure. Subcontractor expressly waives any and all
late charges or interest charges unless expressly specified in the Pricing
Structure.
4. Security Interest and Defaulted
Terms
Subcontractor
grants Embee a Security Interest in all property of Subcontractor to secure all
work now due or due in the future under this Agreement. Subcontractor irrevocably grants Embee the
right to sign the name of Subcontractor to any documents necessary or desirable
to perfect this Security Interest.
Subcontractor will reimburse Embee on demand for the cost of any filing
fees related to perfecting this interest, as needed. If the price is not paid when due, the unpaid
balance thereof will bear interest at the rate of 18% per annum, or the highest
amount allowed by law, whichever is less, and Embee may declare the sums owing
it from Subcontractor, whether or not arising from this document, immediately
due and payable. Subcontractor agrees to
pay Embee’s attorneys’ fees if Embee engages an attorney to enforce its rights
under this Agreement or to any claim related to or pertaining to this
Agreement. Embee has no duty to perform
under this Agreement if Subcontractor owes any overdue amount to Embee, and
Embee may lock or otherwise disable equipment until all amounts are paid in
full. Equipment may contain locks for
that purpose.
5. Effective Date and Custody of
Originals
This Agreement
shall be effective as of the date of the latest signature on the Scope of Work,
the Pricing Structure and the Construction Drawings, respectively. The originals shall be maintained by Embee.
6. Independent
Contractor Status
Embee
and Subcontractor shall be independent contractors with respect to each
other. Nothing in this Agreement shall
be construed so as to constitute any employment arrangement or any partnership
or joint venture between the parties. Neither Subcontractor nor any of its
agents, consultants, representatives, affiliates or subcontractors shall be
considered as having employment status with Embee or being entitled to
participate in any plans, arrangements, or distributions by Embee pertaining to
or in connection with any pension, stock, bonus, profit-sharing, or similar
benefits that Embee may have for its employees.
Subcontractor acknowledges that Embee has no obligations with respect to
Subcontractor and its agents, representatives and subcontractors which Embee
may otherwise have at law with respect to employees of Embee.
7. Nondisparagement
Neither party to this Agreement
shall disparage the other to any third party in any manner.
8. Binding on Successors and Assigns
This agreement and the promises and
covenants herein shall be binding on, inure to the benefit of, and be
enforceable by any and all predecessors, heirs, beneficiaries, successors,
assigns and transferees of each of the Parties hereto.
9. Captions
The captions used herein are for
identification purposes only and are not a part of this Agreement.
10. Disputes
to be Arbitrated Rather Than Heard by Court or Jury
This section is
a copy of the Agreement to Arbitrate that is printed separately and signed by
Subcontractor. This section is included
here for information and completeness purposes only, and is not intended in any
way to replace or supplant the separately printed and signed Agreement to
Arbitrate.
10.01 Agreement to Arbitrate
Subject to
section 27, below, and in exchange for the benefits of the speedy, economical
and impartial dispute resolution procedure of arbitration, Embee and
Subcontractor forego their right to resolution of disputes in a court of law by
a judge or jury, pursuant to the Federal Arbitration Act and/or
California Code of Civil Procedure §§1281 et seq.
10.02 Disputes Covered by Arbitration
Any controversy
or claim arising out of or in any way related to Subcontractor’s business
relationship with Embee or its termination, and otherwise cognizable in a court
of law, shall be submitted to final and binding arbitration. This obligation includes, but is not limited
to any contractual, common law, tort or statutory claims, and claims against
individual officers, directors, managers, supervisors, employees and agents of
Embee, in their capacity as such, as well as claims against Embee.
10.03 Disputes Not Covered by Arbitration
Only the
following claims are excluded from this Agreement:
10.03.1 claims by Subcontractor which are
subject to special exclusive administrative procedures;
10.03.2 claims based upon any other
Agreement between Subcontractor and Embee, the terms of which contain its own
arbitration procedures; and
10.03.3 claims within the exclusive primary
jurisdiction of the National Labor Relations Board.
10.04 Right to Injunctive Relief
Either party
may, without waiving arbitration rights and duties under this Agreement, seek
preliminary injunctive relief (including temporary restraining orders) or other
provisional relief from a Court upon the same basis and showing as would other
litigants, together with a showing that any potential arbitration award would
be rendered in effectual without such provisional relief. In the case of a dispute involving the
enforcement of §§3-8 of this Agreement, it is hereby stipulated and agreed by
and between the parties hereto that the damages to the non-breaching party
would be so severe, imminent and impossible to accurately calculate that mere
monetary damages would be insufficient, and that said non-breaching party would
be entitled to an immediate injunction against the breaching party without the
need to post a bond, and without the need to prove anything further, said
damages being stipulated hereto.
10.05 Right of Access to Governmental Agencies
While Embee and
Subcontractor agree to arbitrate the merits of all unresolved claims,
Subcontractor still has the right to file complaints or charges with, or
cooperate with, appropriate governmental agencies.
10.06 Statutes of Limitations, Scope of Remedies, and Substantive Law
Statutes of limitations,
scope of remedies, and substantive law (including any requirement for prior
exhaustion of administrative agency relief) shall be the same as would be
applicable were any action to be brought in Court. Any claim or demand for arbitration must be
served upon the responding party within ninety (90) days of the completion of
the filing of all initial pleadings and responses thereto, and must fairly put
the opposing parties on notice as to the factual and legal basis for the
claim(s) as adjudged by California case law interpreting notice pleading
requirements.
10.07 Administration of Arbitration
The arbitration
shall be held in Orange County, California, as close to Embee’s offices as
possible, and administered by JAMS/Endispute in
accordance with the then-existing JAMS/Endispute
Arbitration Rules and Procedures for Commercial Disputes. Copies of such rules are available
online. If for any reason JAMS/Endispute is unwilling or unable to handle the dispute,
then the dispute shall be processed pursuant to California Code of Civil
Procedure §§ 1282-1284.2.
10.08 Selection of Arbitrator
The arbitrator
shall be selected by mutual agreement of the parties, or pursuant to the
appointment procedures of JAMS/Endispute.
10.09 Authority of Arbitrator
The arbitrator
shall have exclusive authority to resolve any dispute relating to the arbitrability of any claim or matter, including any dispute
regarding the applicability, formation or enforcement of this Agreement, to
hear and rule upon pre-hearing disputes, and shall entertain and rule upon
motions for summary adjudication or summary judgment and motions in limine, and in doing so shall apply the California Code
of Civil Procedure applicable to such motions.
10.10 Right to Discovery
Each party shall
have the right to engage in discovery pursuant to the parameters defined in
California Code of Civil Procedure section 94.
10.11 Right to Representation and Confidentiality
Each party may,
but is not required to, be represented by licensed counsel of its choice. The hearing and all filings and other
proceedings shall be treated in a private and confidential manner by the
arbitrator and all parties and representatives, and shall not be disclosed
except as necessary for any related judicial proceedings.
10.12 Arbitration Costs
Subject to
awards of fees and costs to the prevailing party as discussed in section 19, hereinbelow, the Parties shall initially be equally
responsible for all costs of the arbitration services, including the fees and
costs of the arbitrator and court reporter fees.
11. Narrowing
of Overbroad Clauses
If any provision
of this Agreement shall be determined, under applicable law, to be overly broad
in duration, substantive scope, or otherwise, such provision shall be deemed
narrowed to the broadest term permitted by applicable law and shall be enforced
as so narrowed.
12. Subcontractor’s Warrantees and
Representations
In further
consideration of the terms and conditions as set for the herein, the
Subcontractor also agrees, represents and warrants as follows:
12.01 Sole Authority to Execute
The signatory hereto for Subcontractor expressly warrants
and represents that as of the date of this Agreement, they have the sole right
and authority to execute this Agreement on their own behalf and on behalf of
their representatives or those they represent, and that they have not sold,
assigned, transferred, conveyed, or otherwise disposed of any claim or demand
relating to any rights surrendered by virtue of this Agreement.
12.02 Legal Competence
Subcontractor expressly warrants and represents that the
person executing this Agreement on his, her or its behalf is legally competent
to and is authorized to enter into this Agreement and to bind said party to
his, her or its representations, terms, conditions and covenants as set forth
herein.
12.03 Transfer or Assignment
Subcontractor
represents and warrants it they has not sold, assigned or otherwise transferred
any claims or rights settled or released pursuant to this Agreement. Subcontractor further represents and warrants
that it shall not, at any time in the future, attempt to sell, assign or
otherwise transfer any claims or rights settled or released pursuant to this
Agreement. Subcontractor further agrees
that any such sale, assignment or other transfer constitutes a modification of
this Agreement, which modification is void without the written assent of both
Parties.
12.04 Time is of the Essence
Subcontractor
represents and warrants it understands that time is of the essence. Subcontractor agrees that the Scope of Work
shall be completed on time.
Subcontractor acknowledges the critical importance of achieving such
milestones to avoid substantial damage to Embee, including but not limited to,
storage and maintenance costs, acceleration and disruption costs, all of which
costs Subcontractor would be liable for and would indemnify Embee should said
costs be incurred as a result of Subcontractor’s delay.
12.05 Familiarity with Project
Subcontractor
represents and warrants that it is familiar with the project for which this
Agreement and the Scope of Work are drafted, including the present improvements
at the site, and that Subcontractor shall phase the Work to avoid any
interruption to the other operations taking place at the Project site.
12.06 Correction of Incorrect Work
Subcontractor
represents and warrants that it shall correct at its own cost any work which
does not conform, in Embee’s sole judgment, to the Scope of Work.
12.07 Quality of Materials
Subcontractor
represents and warrants that materials and equipment used to accomplish the
Scope of Work will be new unless otherwise specified, and that its work will be
of good quality, free from faults and defects, and in conformance with the
Contract Documents. Work not conforming
to these requirements shall be corrected in accordance with section 12.06,
above.
12.08 Ancillary Costs and Requited Permits
Subcontractor
represents and warrants that it shall pay all sales, consumer, use and similar
taxes which were in effect at the time that this Agreement was executed, and
Subcontractor shall ascertain the need for and secure for Embee building and
other permits and governmental fees, licenses and inspections necessary for the
proper execution and completion of the Work which are either customarily
secured after execution of this Agreement or are legally required at the time
the Subcontractor’s Proposal was first submitted to Embee. Subcontractor shall pay for all permits and
governmental fees, licenses and inspections.
12.09 Compliance With Laws
Subcontractor
shall give all notices and comply with all laws, ordinances, rules, regulations
and lawful orders of public authorities relating to the Scope of Work. Subcontractor shall ensure that its work
complies with all laws, ordinances, rules, and regulations of the United States
Environmental Protection Agency, the United States Occupational Safety and
Health Administration, and any other federal, state or local agency with regard
to the use and disposal of hazardous materials and wastes. Subcontractor shall obtain any required
permits, licenses and inspections required in connection with the installation
of the Project.
12.10 Removal of Waste
Subcontractor
shall keep the premises free from accumulation of waste materials or rubbish
caused by Subcontractor’s operations. At
the completion of the Work, Subcontractor shall remove from and about the
Project its tools, construction equipment, machinery, surplus materials, waste
materials and rubbish.
13. Assumption of Risk
In entering into this Agreement,
each party assumes the risk of any misrepresentation, concealment, or mistake
except for the representations and statements expressly made in this
Agreement. If any party should
subsequently discover that any fact relied upon by him, her or it in entering
into this Agreement is untrue, or that any fact or facts were concealed from
him, her or it, or that his, her or its understanding of the facts or of the
law was incorrect, or that the law presently in effect has changed in a manner
which would otherwise affect such party's rights, such party shall not be
entitled to any relief whatsoever in such connection or otherwise, including,
without limitation on the intended generality of the foregoing, any alleged
right or claim to set aside or rescind this Agreement. This Agreement is intended to be and is final
and binding between the parties, regardless of any claims of fraud,
misrepresentation, promise made without the intention of performing,
concealment of fact, mistake of fact or law, change of law, or of any other
circumstance.
14. Sufficiency, Mutuality and Receipt of
Consideration Acknowledged
The parties hereby stipulate,
acknowledge and agree that the consideration had and received for this
Agreement is sufficient, mutual, and has been received by the parties.
15. Entire Agreement
This Agreement contains the entire
agreement and understanding concerning its subject matters between the parties,
and supersedes and replaces any prior negotiations and any proposed agreement
and agreements, written and oral. Each
of the parties acknowledges that no other party, nor any agent or attorney of
another party, has made any promise, representation or warranty whatsoever,
express or implied, not contained herein, concerning the subject matters
hereof, to induce them to execute this Agreement in reliance upon any such
promise, representation or warranty not contained herein.
16. Jurisdiction
The parties hereby stipulate and
agree that jurisdiction for the resolution of any dispute arising from this
Agreement, subject to the arbitration provisions set forth in §§10, et seq.,
above, is proper in the State of California.
17. Venue
The parties hereby stipulate and
agree that the venue for the resolution of any dispute arising from this
Agreement, subject to the arbitration provisions set forth in §§10, et seq.,
above, is proper in the Superior Court of State of California, County of Orange,
Harbor District.
18. Choice of Law
This Agreement is made and entered
into in the State of California, and shall in all respects be interpreted,
enforced and governed by and under the laws of the State of California. In the event that any statute, judicial
precedent or other laws of the State of California shall require or otherwise
dictate that the laws of another State or jurisdiction be applied in any such
action or proceeding, they shall be superseded by this paragraph and the
remaining laws of the State of California shall nonetheless be applied in such
action or proceeding.
19. Attorneys’ Fees and Costs
The parties hereby stipulate and
agree that in resolving any dispute arising from this Agreement, the party
adjudged to be in breach or at fault shall pay the other party’s attorneys’
fees and all costs related thereto, subject to the arbitration provisions set
forth in §§10, et seq., above. In the
event that both parties are adjudged to be in breach, each party shall bear its
own attorneys’ fees and any costs related thereto.
20. Waiver or Modification
Neither this Agreement, nor any
provision thereof, can be modified or waived in any way, except by an agreement
in writing signed by each of the parties affected thereby, expressly consenting
to such modification or waiver.
21. Notices
21.01 General Provisions
All notices must
be in writing to be effective. Notices
may be personally delivered, or sent by facsimile, registered, certified or
overnight mail, return receipt requested, to the address or facsimile number of
the receiving party as set forth in this document or to such other address or
facsimile number as the sending party shall have actually received for such
purpose prior to dispatch of the notice in question. Notices sent in conformity with this
paragraph shall be considered effective three days after dispatch. Facsimile notices will be effective on
dispatch on the condition that facsimile notices are confirmed by mail. Hand delivered notices are effective on
delivery.
21.02 Contact Information
Either party may
from time to time change its address by giving the other party notice of the
change in accordance with this section.
Any notice or other communication required or permitted to be given
hereunder shall be delivered as provided above to the following:
If
to Embee:
Embee
Technologies
Attention: Luke
Slymen, President
16592 Millikan
Avenue
Irvine,
California 92606
Telephone: (949) 266-1700
Facsimile: (949) 435-1595
Copy
to Counsel:
John A.
Safyurtlu, Esq.
General Counsel,
PC
620 Newport
Center Drive, 11th Floor
Newport Beach,
California 92660
Telephone: (949) 892-1080
Facsimile: (949) 892-1081
If
to Subcontractor:
As
set forth on the Scope of Work
22. Severability
The parties and signatories, and
each of them, agree and acknowledge that if any portion of this Agreement is
declared invalid or unenforceable by a final judgment of any Court of competent
jurisdiction, such determination shall not affect the balance of this
Agreement, which shall remain in full force and effect, as such invalid portion
shall be deemed severable.
23. Counterparts
This Agreement may be signed in one
or more counterparts, which shall each constitute an original of this
Agreement. It will be deemed effective
when each party to this Agreement have in their possession counterparts which
together bear the dated signatures of each party.
24. Due Diligence
Each party to this Agreement
represents and warrants to all other parties to this Agreement that he, she or
it has investigated the facts pertaining to the dismissal set forth herein, and
of all matters pertaining thereto, as he, she or it deems necessary.
25. Cooperation in Drafting
Each party has cooperated in the
drafting and preparation of this Agreement.
Hence, in any construction of this Agreement, it shall not be construed
against any party.
26. No
Waiver
No delay or
failure on the part of any party hereto in exercising any right, power or
privilege under this Agreement or under any other documents or instruments
given in connection with or pursuant to this Agreement shall impair any such
right, power or privilege or be construed as a waiver of any event of default
hereunder or any acquiescence therein.
No waiver shall be valid against any party hereto unless made in writing
and signed by that party, and then only to the extent expressly specified
therein.
27. Mandatory
Mediation
This section is
a copy of the Agreement to Arbitrate that is printed separately and signed by
Subcontractor. This section is included
here for information and completeness purposes only, and is not intended in any
way to replace or supplant the separately printed and signed Agreement to
Arbitrate. Before invoking the dispute
resolution mechanism set forth below in §§10, et seq., above, a party shall serve on the other party to the Agreement
(a) written notice of the claim, specifying the exact amount claimed and the
provision of the Agreement or other authority for the claim; and (b) a copy of
all supporting documents. Within thirty (30) business days after service, the
responding party shall serve on the serving party (a) a written response,
setting out its position and specifying the contract or other provisions relied
on; and (b) a copy of all supporting documents. Within fifteen business days
after service of the response, the parties shall meet in Embee’s Counsel’s
offices in Newport Beach, California, to discuss resolution of the claim. The written claim notice and response and the
documents produced, but not the subsequent discussion, shall be admissible in
any subsequent proceeding. The parties shall, in good faith, use their best
efforts to resolve any issues which gave rise to the meeting at the meeting,
with the goal of successfully completing this Agreement as originally
contemplated. After the meeting, should
a resolution not be achieved, either party may invoke the dispute resolution
procedure set forth in §§10, et seq.,
above.
28. Term and Termination
This Agreement
will become effective on the date last shown on signatory page of the Scope of
Work, the Pricing Structure and the Construction Drawings, collectively, and
will continue in effect through the completion of the work set forth
therein. Embee, may, at its sole option
terminate this Agreement (including the Scope of Work, the Pricing Structure
and the Construction Drawings), or cease performance of any duty required by
this Agreement (or the Scope of Work, the Pricing Structure and the
Construction Drawings), at any time, without any notice or right to cure, for
cause or without cause. In the event of
any termination of this Agreement, §§3-8, 10, 13, 15-19, 21, 24-27, 29-36, and
38-42 hereof shall survive and continue in effect.
29. Warranties
29.02 Subcontractor warrants to Embee that the
results of its work shall be merchantable and fit for any particular use or
purpose as deemed needed by Embee.
30. Limitations
30.01 Any claim for of any kind by Subcontractor as
to Embee will be limited to the compensation listed on the Pricing
Structure. Subcontractor releases Embee
from all claims now existing or hereafter related to this agreement and/or the
performance thereof, including, but not limited to, those claims arising from
implied warranty, tort, strict liability, breach of statutory duty, and direct
and vicarious negligence and for any other cause.
30.02 Embee is not liable for lost profits,
punitive damages, multiplied actual damages, incidental or consequential
damages, under any theory of law, including but not limited to breach of
contract, breach of implied warranty, tort, strict liability, breach of
statutory duty, and direct and vicarious negligence. All such damages are hereby released and
waived. Under all circumstances, Embee’s
liability to Subcontractor, either directly or by way of indemnification under
any theory, shall be limited to the sum paid by Subcontractor to Embee pursuant
to this Agreement.
30.03 Embee and its employees shall not be liable
for any damage or expenses resulting from actions or omissions of Embee or its
employees, undertaken in good faith, in reliance upon Subcontractor’s
instructions or directions.
30.04 Under no circumstances shall any of Embee’s
employees be personally liable for any claim arising out of or related to this
Agreement, the equipment provided for herein, or the services rendered herefrom.
30.05 None of the limitations set forth herein
apply to Subcontractor, whose liability to Embee and/or Embee’s customers is
unlimited, either directly or by way of indemnity.
30.06 All limitations set forth in this section are
expressly limited as set forth in paragraph 11, above.
32. Excusable Delays
Embee shall not
be considered to be in default hereof or liable for any delay, failure in
performance, or interruption of service resulting directly or indirectly from
acts of God, civil or military authority, civil disturbance, declared or
undeclared war, acts of terrorism, strikes, labor unrest, fires, catastrophes,
delays in transportation, inability to obtain labor, materials, failures of
suppliers, or any event beyond its reasonable control.
33. Liability and Indemnity
Subcontractor
agrees to indemnify and hold Embee harmless for any liability incurred by Embee
as a result of any cause of action, breach of contract, negligence or other
tort of Subcontractor, arising from, related or pertaining to, the performance
or attempted performance by Subcontractor of the terms and provisions of this
document. Subcontractor agrees to pay
for all reasonable attorneys’ fees and cost of suit incurred by Embee in
defending any suits arising from, related or pertaining to, the performance by
Embee of the provisions of this document.
Subcontractor hereby further affirms that it shall be fully responsible
for the acts, errors and omissions of its affiliates or subcontractors and
shall fully indemnify, defend and save harmless Embee, its agents, employees
and assigns from any and all claims, which arise in whole or in part, on
account of services rendered by Subcontractor’s affiliates or
subcontractors. This indemnity provision
expressly includes, without limitation, any claim related to the prevailing
wage, as more further discussed below in section 56.
34. Incorporation of Other Documents
This
Agreement is entered into in conjunction with, and is intended to incorporate,
as though fully set forth herein, the following Documents, which are signed by
both parties:
34.01 Scope
of Work
34.02 Pricing
Structure
34.03 Construction
Drawings
34.04 Agreement
to Arbitrate
34.05 Any
Master Agreement referred to in the Scope of Work
35. Refunds
If at any time,
Embee demands a refund on behalf of a Customer, said refund will be given in
full within five (5) days of said request.
If Subcontractor then feels that it should nevertheless be paid for any
work performed pursuant to this Agreement, then Subcontractor’s sole remedy is
to address that directly with Embee’s customer, and not with Embee.
36. Embee’s Right to Control Liens
Subcontractor
hereby delegates to Embee full and complete control over any liens regarding
the work to be performed under this Agreement, including the placement of said
liens or their removal. Embee has full
authority to sign on Subcontractor’s behalf any documents to effectuate this
section, and has full authority to conduct any negotiations or reach any
decisions regarding said liens without further consulting Subcontractor.
37. Ownership And Use Of Documents
All drawings,
specifications and other documents shall become and remain the property of Embee,
whether or not the work set forth in this Agreement is commenced. Subcontractor agrees that in the event of a
termination of this Agreement, Subcontractor shall turn over, within
forty-eight (48) hours of the receipt of written notice of such termination,
all drawings and specifications to Embee, and Embee may use said drawings and
specifications for the completion of or additions to the work set forth in this
Agreement, or for any other purpose.
38. Subcontractor’s Status, Services And
Responsibilities
Subcontractor
accepts the relationship of trust and confidence established between it and
Embee by this Agreement, and Subcontractor covenants with Embee to furnish its
best skill and judgment in furthering the interests of Embee. Subcontractor agrees to furnish at all times
an adequate supply of personnel and to perform its work in the best and most
sound way and in the most expeditious and economical manner consistent with the
interests of Embee, it being specifically understood that Subcontractor shall
perform all services required to be performed hereunder in accordance with
generally accepted engineering, design and construction standards and practices
for projects of similar design and complexity.
Subcontractor acknowledges that Embee is retaining, and entering into
this Agreement, with Subcontractor because of Subcontractor’s considerable and
recognized expertise in the cable installation.
39. Ancillary Items Needed to Complete
Work
Unless otherwise
provided in this Agreement, Subcontractor shall provide or cause to be provided
and shall pay for installation, design services, labor, materials, equipment,
tools, construction equipment and machinery, water, heat, utilities,
transportation, office space, and other facilities and services necessary for
proper execution and completion of the Scope of Work, whether temporary or
permanent and whether or not incorporated or to be incorporated in the Scope of
Work. Subcontractor shall file all
documents required to obtain necessary approvals of governmental authorities
having jurisdiction over this project.
40. Reasonable Variations in
Specifications
Subcontractor
realizes that a reasonable number and variety of revisions to the Construction
Drawings, in Embee’s sole judgment, may occur during the completion of the
Scope of Work and acknowledges that provision has been made for these revisions
in Subcontractor’s compensation as set forth on the Pricing Structure.
41. Change Orders
Subcontractor
shall prepare change orders for Embee’s approval and execution. Subcontractor shall not be paid for any
change orders not signed by Embee.
42. Payments Withheld
Embee may
decline to make payment and may withhold payment, in whole or in part, to the
extent necessary reasonably to protect Embee from loss because of:
a.
defective
work not remedied;
b.
third-party
claims filed or reasonable evidence indicating probable filing of such claims;
c.
failure
of Subcontractor to make payments properly to its own subcontractors or for
labor, materials or equipment;
d.
reasonable
evidence that the Scope of Work cannot be completed for the unpaid balance of
amounts due under the Payment Structure;
e.
damage
to Embee or another Subcontractor;
f.
reasonable
evidence that the Scope of Work shall not be completed within the agreed-to
time;
g.
persistent
failure to carry out the work in accordance with this Agreement; or
h.
failure
of Subcontractor to provide any documents required by this Agreement.
When the above
grounds in are removed, payment shall be made for amounts withheld because of
them.
43. Final Payment
Neither the
Final Payment as set forth in the Payment Structure nor amounts retained, if
any, shall become due until Subcontractor submits to Embee (1) an affidavit
that payrolls, bills for materials and equipment, and other indebtedness
connected with the Scope of Work have been paid or otherwise satisfied, (2)
consent of surety, if any, to Final Payment, (3) a certificate that insurance
required by this Agreement is in force following completion of the Scope of
Work, (4) if required by Embee, other data establishing payment or satisfaction
of obligations, such as receipts, releases and waivers of liens arising out of
this Agreement, to the extent and in such form as may be designated by Embee,
and (5) such government approvals as may be necessary or reasonably required by
Embee. If a subcontractor refuses to
furnish a release or waiver required by Embee, Subcontractor may furnish a bond
satisfactory to Embee to indemnify Embee against such lien. If such lien remains unsatisfied after
payments are made, Subcontractor shall reimburse Embee for moneys the latter
may be compelled to pay in discharging such lien, including all costs and
reasonable attorneys’ fees. Acceptance
of Final Payment shall constitute a waiver of all claims by Subcontractor.
44. Retainage
Embee may retain
ten percent (10%) from each progress payment due Subcontractor.
44. Supervision and Safety
Subcontractor
shall be responsible for initiating, maintaining and providing supervision of
safety precautions and programs in connection with the Scope of Work. Subcontractor shall take reasonable
precautions for the safety and security of, and shall provide reasonable
protection to prevent damage, injury or loss to: (1) employees performing the Scope of Work
and other persons who may be affected thereby; (2) the materials and equipment
incorporated therein; and (3) other property at or adjacent to the site.
45. Subcontractor’s Insurance
Subcontractor
shall purchase and maintain in a company or companies authorized to do business
in the state in which the Project is located, the following insurance:
a. Commercial General Liability Insurance
having limits of not less than $1,000,000 per occurrence on an occurrence basis
covering claims of bodily injury, personal injury and property damage arising
out of Subcontractor’s operations for the Scope of Work, which insurance shall
name Embee and/or any other party named by Embee, if any, as additional insureds.
b. Workers Compensation Insurance as
required by the Workers Compensation laws of the state of California.
c. Employer’s Liability Insurance with
minimum liability limits of $1,000,000 per occurrence.
d. Commercial Automobile Liability
Insurance with minimum limits of $1,000,000 per occurrence.
e. Products Liability Coverage covering
the completed Project or Work or installation or products furnished by
Subcontractor.
f. Professional Liability Insurance with
a single limit not less than $1,000,000 for all persons and all occurrences in
the aggregate amount, and Subcontractor shall provide Embee with any notice of
any claim against Subcontractor which may affect the professional liability
coverage during the term of this Agreement and for three (3) years following
the date of Substantial Completion.
g. Design Professional Errors and
Omissions Insurance with a single limit not less than $1,000,000.00, covering
all construction activity for the Scope of Work.
46. Certificates Of Insurance; Form Of
Insurance
Certificates of
Insurance acceptable to Embee shall be delivered to Embee prior to commencement
of the Scope of Work. These
certificates, as well as insurance policies required by this Agreement, shall
contain a provision that coverage will not be cancelled, reduced, modified or
allowed to expire until at least thirty (30) days’ prior written notice has
been given to Embee as well as a provision that such policies shall not have a
deductible amount in excess of $5,000 in the aggregate. Such certificates shall also indicate that
the foregoing insurance policies have been endorsed to name Embee and any other
parties named by Embee as an additional insureds. Subcontractor shall deliver true copies of
the policies themselves promptly upon request by Embee. All insurance maintained by Subcontractor
shall provide that Subcontractor’s insurance shall be primary without right of
contribution from any other insurance carried by or on behalf of Embee. The limits of liability insurance required by
this Agreement shall in no way limit the Subcontractor’s liability under this
Agreement or the applicable law. All
insurance maintained by Subcontractor shall include a broad form endorsement
and shall be in form and content and with companies reasonably acceptable to
Embee.
47. Waiver Of Subrogation.
Subcontractor
hereby waives any and every claim for recovery from the other for any and all
loss or damage to the Project or Property or to the contents thereof, whether
such loss or damage is due to the negligence of Embee or Subcontractor or their
respective agents or employees or as to any other third party, to the extent
that the amount of such loss or damage is covered under its policies of
insurance (or would have been covered had Subcontractor carried the insurance
required to be carried by it); provided, however, that the foregoing waiver
shall not be operative in any case where the effect thereof is to invalidate
any insurance coverage of the waiving party. Subcontractor, as appropriate,
shall require from its subcontractors by appropriate agreements, written where
legally required for validity, similar waivers each in favor of the other
parties enumerated in this Agreement.
48. Regulatory Changes
Subcontractor
shall not be compensated for changes in the Scope of Work necessitated by the
enactment or revision of codes, laws or regulations subsequent to the date of
this Agreement, said risk being expressly assumed by Subcontractor.
49. Controlling Document
To the extent
that Subcontractor has submitted a bid or proposal or other similar document to
Embee, which Embee may have accepted or used with regard to the Scope of Work,
Pricing Structure, or otherwise, said acceptance is contingent upon the terms
and conditions herein controlling. To
the extent that there is any conflict between this document and any bid,
proposal, or other similar document tendered by Subcontractor, this Agreement
shall control. Subcontractor’s
commencement of any work under the Scope of Work expressly assents to this
term.
50. Confidential
Information
50.01 Definition
The parties
hereto understand and agree that, during the course of this Agreement, they
have received and/or will continue to receive information or material of other
parties hereto, which is deemed by the originating party in its sole discretion
to be confidential, including proprietary information and/or information and/or
information of a “trade secret” nature.
All of such information and material will be referred to herein as the
“Confidential Information.” Such Confidential
Information can exist in any form, including oral or written statements,
information remembered, information stored electronically and information
embodied in objects or processes. Such
Confidential Information includes any information or material which has not
been made available generally to the public and was or is: (i) generated or
collected by or utilized in the operations of any party hereto and which
relates to the actual or anticipated business or research and development of
said party; or (ii) suggested by or resulting from any task assigned or work
performed by either any party hereto during the term of this Agreement or with
which any party hereto becomes or became familiar during the term of this
Agreement. Further, in order to qualify
as “Confidential Information,” the information at issue must be clearly marked
and identified as being of a confidential or proprietary nature:
50.01.1
Information
about either party’s programs, plans and strategies, including their business,
development, technological, capital investment, marketing, advertising, sales
and financial programs, plans and strategies;
50.01.2
Information
about existing, planned, proposed or developing methods, programs, resources,
products or services, including design, development, engineering, technology,
features, suppliers, systems, combinations, applications, packaging, fees,
rates, prices, charges, or internal costs as to either party;
50.01.3
Customer
or prospect lists, customer requirements or preferences or other customer data
developed or collected by either party hereto;
50.01.4
Information
about contract negotiations or contractual agreements with Embee’s, investors,
lenders, producers, suppliers or Customers, including bids, proposals,
packages, strategies, plans, costs, prices, profit margins, financing or terms;
50.01.5
Financial,
account, trading or cost information and projections concerning either party
hereto which they have agreed or determined to keep confidential;
50.01.6
Information
obtained from producers, customers, suppliers or others which either party
hereto has agreed or determined to keep confidential;
50.01.7
Information
about either party’s transactions, including proposed transactions such as
projects, purchases, mergers, joint ventures, partnerships, acquisitions or
disposition of properties, equipment, assets or stock;
50.01.8
Information
about other companies, particularly where the value of the securities of other
companies is likely to be influenced by actions of either party hereto;
50.01.9
Information
relating to personnel, management changes, human resources and payroll matters,
including salary/compensation data.
50.02 Non-Dissemination
No party to this
Agreement shall, without the originating Party’s prior written permission,
disclose to anyone any such Confidential Information, either during or at any
time after the term of this Agreement.
All parties hereto shall also guard against inadvertent disclosures, as
by discussing such matters where they may be overheard by others, or by
mentioning them in casual conversations with others.
50.03 Anti-Solicitation
Because of the
inseparability of the Confidential Information from this Agreement,
Subcontractor understands and agrees that, consistent with the limitations of
state law, for a period of at least one year following the termination (for any
reason) of this Agreement Subcontractor shall not (whether acting alone or in
concert with others) solicit Embee’s customers to direct any business or
prospective business or income from Embee or to stop or alter the manner in
which such customers are doing business with Embee. After the one-year period, the parties hereto
shall remain bound by the other limitations of this Agreement, including those
related to disclosure and use of Confidential Information.
50.04 Maintenance of Trade Secrets
The parties
hereto understand and agree that they have a duty to respect the proprietary
information and trade secrets of others.
No party hereto shall disclose or cause to be disclosed to any other
party hereto any trade secrets or other information which that party knows to
be confidential and proprietary to others.
51. Inventions
and Intellectual Property
51.01 Definition
For purposes of
this Agreement, inventions and intellectual property (hereinafter collectively
referred to as “Developments”), shall include any idea, invention, or design of
a useful article (whether the design is ornamental or otherwise), computer
program and related documentation, and other work of authorship made or
conceived during the term of this Agreement solely or jointly by Subcontractor,
or created wholly or in part by Subcontractor, whether or not such Developments
are patentable, copyrightable or susceptible to other forms of protection, and
provided the Developments are: (i)
are related to the actual or anticipated business or research or development of
Embee; or (ii) are suggested by or
result from any task performed for or on behalf of Embee. In the case of any “other work of
authorship,” such assignment shall be limited to those works of authorship
which meet both conditions (i) and (ii) above. All Developments shall be considered a “work
for hire.”
51.02 Assignment
Subcontractor
hereby assigns and agrees to assign effective upon the making or conception to
Embee Subcontractor’s entire right, title and interest in any Developments as
defined hereinabove.
51.03 Representation as to Pre-existing Developments
Subcontractor
understands that Subcontractor is affirmatively representing Subcontractor has
no such Developments unless Subcontractor has listed them separately and
attached that list to the Scope of Work, which attachment is signed by Embee.
51.04 Prompt Disclosure and Further Documents
In connection
with any of the Developments assigned by the preceding paragraphs, (i) Subcontractor shall promptly disclose
them to Embee’s management; and (ii)
Subcontractor shall, on Embee’s request, promptly execute a specific assignment
of title to Embee or its designee and do anything else reasonably necessary to
enable Embee or its designee to secure a patent, copyright or other form of
protection therefor in the United States and in other countries.
51.05 Disclosure as to Pre-existing Developments
Subcontractor
has listed separately and attached to the Scope of Work, which attachment is
signed by Embee, all Developments in which Subcontractor has any right, title
or interest, and which were previously made or conceived solely or jointly by
Subcontractor, or written wholly or in part by Subcontractor, whether or not
previously identified to Embee. Subcontractor understands that he/she/it is
affirmatively representing that Subcontractor has no such Developments unless
he/she/it has listed separately and attached to the Scope of Work, which
attachment is signed by Embee. Note: Subcontractor also understands
that it is in Subcontractor’s interest to establish that any of the above were
made, conceived or written before this Agreement. Subcontractor also understands that he/she/it
should not disclose any pre-existing Developments in detail, but should rather
identify them only by the titles and dates of documents describing them. If Subcontractor wishes to interest Embee in
any of them, Subcontractor knows he/she/it should contact the President of
Embee, who will provide Subcontractor with instructions for submitting the
pre-existing Developments to Embee.
52. Hiring of Embee’s Employees
Subcontractor
acknowledges that Embee provides a valuable service by identifying and
assigning personnel for this Agreement. Subcontractor further acknowledges that
Subcontractor would receive substantial additional value, and Embee would be
deprived of the benefits of its work force, if Subcontractor were to directly hire
Embee’s employees. Therefore, without
the prior written consent of Embee, Subcontractor shall not, directly or
indirectly, solicit, recruit or hire any employee(s) of Embee until one (1)
year after the completion of the installation of the last equipment or
performance of the last service listed on the Scope of Work. In the event of a
breach of this section, Embee, in addition to all its other rights and remedies
under this Agreement and at law and equity, shall be entitled to, and
Subcontractor shall pay to Embee, without defense or counterclaim, two (2)
times the annual salary of the employee(s) wrongfully hired.
53. Title
The original and
all copies of any computer program, modification, correction, or enhancement to
any computer program, documentation relating thereto, and all inventions,
systems, processes, improvements and patentable ideas, which were or are later
conceived by Embee alone or with others in whole or in part are the sole
property of Embee. All work performed by
Embee now or hereafter under this document or otherwise will not be considered
a work for hire, and Embee will own all copyrights.
54. Liquidated
Damages and Injunctive Relief
54.01 Subcontractor agrees that violation of any of
the terms of this Agreement will damage Embee in such a manner and to such a
degree that (a) the amount of damages may be difficult, if not impossible, to
ascertain and (b) monetary damages at law may be insufficient to adequately
compensate Embee for the harm done by a breach.
54.02 In the event of a breach of this Agreement by
Subcontractor, Embee is entitled to require, at its’ sole discretion and
election, liquidated damages from Subcontractor in the amount of three (3)
times the total agreed-to price. This
provision is not intended by either party to be punitive in nature, but is
rather merely an effort by the parties to fix damages at some readily
ascertainable amount. Furthermore, the
election by Embee of these liquidated damages shall not act as a bar to
proceeding forward with any other claim for damages, nor shall this election
(or an award resulting therefrom) be used or interpreted as a waiver or setoff
of any other measure of damages which Embee, in its’ sole and exclusive
discretion, may chose to pursue.
54.03 In the event of a breach of this Agreement by
Subcontractor, Embee is further entitled to any form of injunctive relief it
may seek, including, but not limited to, temporary restraining orders and/or
preliminary injunctions. In seeking such
injunctive relief, Embee is not required to produce any evidence of actual or
potential damage or harm, as such damages are stipulated to herein by
Subcontractor. Similarly, in seeking
such injunctive relief, Embee is not required to produce any evidence of actual
or potential breach beyond a claim for said breach unto itself. Finally, in seeking such injunctive relief,
Embee shall not be required to post a bond of any amount for any reason.
55. Incorporation of Master Agreement
The work which
Subcontractor is to perform and which is the subject of this Agreement is, in
turn, part of a larger project. Embee is
either a contractor or subcontractor itself for this larger project. This larger project is further defined in the
Scope of Work and any Exhibits referred to therein, which Exhibits are
expressly made a part of this Agreement.
This Agreement is expressly limited and conditioned upon Subcontractor
accepting any and all terms contained in any such Master Agreement, as though
Subcontractor were filling Embee’s role.
Any term or condition of any such Master Agreement which in any way
applies to Embee shall apply to Subcontractor.
56. Prevailing Wage
Subcontractor
shall have the sole and exclusive responsibility to determine if the work
governed by this Agreement falls under any prevailing wage requirements as to
any of its employees, or the employees of any of its affiliates or
subcontractors, and, if so, what those requirements are, including, but not
limited to, the correct classification, rate of pay, apprenticeship issues and
records to be kept. If any work related
to herein is determined to be subject to any prevailing wage, Subcontractor
shall provide Embee with certified payroll documents within one week of the
work performed, as well as any other documents requested by Embee within one
week of said request. Subcontractor
hereby expressly indemnifies Embee for any and all claims in any way associated
with prevailing wage issues arising from this Agreement as related to any of
Subcontractor’s employees, or the employees of any of its affiliates or
subcontractors.