SERVICE CONTRACT TERMS
1. SERVICES.
Contractor agrees to perform, for the term specified, the Services and any additional services which may be reasonably requested by Owner or Agent from time to time during the term. All operational logs and records relating to the Services prepared and/or maintained by Contractor or in the custody of Contractor shall not be destroyed without the prior written consent of Owner or Agent. Contractor agrees to furnish at its expense all labor, supplies, uniforms, equipment and materials necessary to properly perform the Services. Contractor shall permit and facilitate inspection of the Services by Owner and its representatives (including, but not limited to, Agent) and public authorities at all times. Failure of Agent or Owner during the term of this Agreement to discover or reject unacceptable Services, or Services not performed in accordance with this Agreement, shall not be deemed an acceptance thereof nor a waiver of Agent’s and Owner’s right to the proper execution of the Services or any part thereof by Contractor. If the Services are discretionary in nature (i.e., snow removal) and if a dispute occurs whether the Services were required and/or appropriate, then generally applicable industry standards for comparable work in the same submarket shall be conclusive regarding whether such item was required and/or appropriate in reference to resolving the dispute.
2. PERMITS, LICENSES.
If any government permit, license or authorization shall be required or necessary for the proper and lawful performance of the Services hereunder or if the failure to secure such license, permit or authorization would, in any way, affect the Property, Agent or Owner, then Contractor, at Contractor’s expense, shall duly procure and thereafter maintain such license, permit or authorization and submit the same to Agent for inspection, if requested. Contractor, at Contractor’s expense, shall at all times, comply with the terms and conditions of each such license, permit and authorization and shall notify Agent immediately should any such license, permit or authorization no longer be in effect or in good standing.
3. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO SHALL AND THEY HEREBY DO WAIVE, WHERE PERMITTED BY LAW, TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY OF THE PARTIES HERETO AGAINST THE OTHER IN ANY MATTERS WHATSOEVER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS AGREEMENT.
4. NON-WAIVER PROVISIONS.
The failure of Agent or Owner to insist in any one or more instances upon the strict performance of any of the covenants, terms, provisions or conditions of this Agreement or to exercise any election herein contained shall not be construed as a waiver or a relinquishment for the future of such covenant, term, provision, condition or election, but the same shall continue and remain and be in full force and effect. No waiver by Agent or Owner of any covenant, term, provision or condition of this Agreement shall be deemed to have been made unless expressed in writing and signed by Agent or Owner, as the case may be.
5. LABOR HARMONY.
Contractor agrees that it will not at any time prior to or during the term of this Agreement, either directly or indirectly, use any subcontractors and/or labor and/or materials which would or will create any difficulty with other contractors and/or subcontractors and/or labor engaged by Contractor, Agent, Owner or others in the construction, repair, improvement, maintenance and/or operation of the Property or any part thereof. Contractor agrees to notify Agent and Owner promptly of any events Contractor believes may result in a work stoppage, slowdown, labor dispute, strike or other labor related disruption. Contractor agrees to work in harmony with all contractors and laborers employed by Agent, Owner or others in connection with the Property. In the event of any work-stoppage or other disruption which involves the participation of Contractor’s personnel whether as a result of a dispute with Contractor or due to third party actions involving informational or organizational picketing or picketing by any labor organization against any other employer, Contractor agrees to take appropriate and prompt action to provide qualified personnel to perform the Services and to minimize any delay in performing the Services by fully cooperating in obtaining injunctions, presentation of facts, furnishing of witnesses and assisting in every reasonable way to eliminate any work-stoppage or other disruption or the effect of any work-stoppage or other disruption, or to follow such other directions as Agent or Owner shall issue. Should Contractor fail to comply with this provision, Agent or Owner shall have the right, upon written notice to Contractor, to terminate this Agreement without any liability to Contractor.
6. ASSIGNMENT BY CONTRACTOR.
Contractor shall not assign this Agreement nor any interest therein without the prior written consent of Agent or Owner, which consent may be withheld at Agent’s or Owner’s sole and absolute discretion. The transfer of a majority interest of the voting stock or general partnership interests in Contractor shall be deemed an assignment of this Agreement by Contractor. Any attempted assignment of this Agreement or any interest therein without the prior written consent of Agent or Owner shall be null and void.
7. SUBCONTRACTING.
Contractor may only sub-contract with the prior written consent of Agent or Owner, which consent may be withheld at Agent’s or Owner’s sole and absolute discretion. Every subcontract must providethat the same is subject to all of the covenants, terms, provisions and conditions of this Agreement and must provide that in the event of termination or cancellation of this Agreement for any reason whatsoever, prior to the expiration of such subcontract, the subcontract will automatically terminate on the same date this Agreement is terminated or canceled.
8. ADDITIONAL DEFINITIONS.
It is understood that wherever the terms “adequate” or “as required” or “as necessary” or “if necessary” are stated in this Agreement (including any Exhibit attached hereto), these terms shall be construed to mean “as determined by Agent or Owner”.
9. DISCHARGE OF EMPLOYEES.
Contractor, promptly after demand by Agent or Owner, will discharge or transfer from the Property any employee of Contractor to whom Agent or Owner shall or may object for any reason in their sole discretion, provided, however, that if the effectuating of such discharge or transfer is limited by the contract between Contractor and the employee’s union, Contractor agrees to use its best efforts within the limits of such union contract to effectuate such discharge or transfer as promptly as possible.
10. MECHANIC’S LIENS.
Contractor will promptly pay all Contractor’s employees, workers, laborers, subcontractors, suppliers and materialmen, and will deliver such lien waivers if the amount owed is in excess of $2,500.00 as required by Agent or Owner in a form acceptable to Agent or Owner or as otherwise required by law. Payment of Contractor is conditioned upon delivery of all lien waivers and other documents as required by this Agreement, including without limitation, lien waivers from any and all Contractor’s subcontractors, suppliers and materialmen. Agent or Owner, at their sole discretion and not for the benefit of Contractor’s employees, workmen, laborers, subcontractors, suppliers and materialmen, reserve the right to make joint check payments to such entities. Contractor agrees that if any mechanic’s lien is filed against the Property for work done, services claimed to have been rendered or materials claimed to have been furnished in connection with or pursuant to any of the provisions of this Agreement, then Contractor shall cause such mechanic’s lien to be discharged within ten (10) days after filing, at Contractor’s expense, by: i) filing the bond required by law; or ii) providing Agent with a copy of the court order discharging such lien. Contractor will defend, indemnify and hold Agent and Owner harmless against any and all damages, liabilities, costs and expenses (including attorneys’ fees) suffered or incurred by Agent or Owner as a result of Contractor’s failure to comply with this provision. Upon Contractor’s failure to comply herewith, the lien may be bonded or discharged by Agent or Owner at Contractor’s sole expense. Contractor’s liability under this Section 10 shall survive the expiration or termination of this Agreement, but this shall not be construed to mean that Contractor’s liability does not survive as to other provisions of this Agreement.
11. NON-INTERFERENCE.
Contractor shall perform the Services so as not to unreasonably interfere with Agent’s or Owner’s operation of the Property or the business operations of any tenant or other occupant of the Property. Under no circumstances shall Contractor interfere with the electrical, HVAC or any other operating or control systems in any building without express written permission of the Owner or Agent. Contractor will comply with all building rules and regulations of the Owner regarding the Property, Property access, etc., attached hereto as Exhibit “E”. At all times, Contractor will be deemed responsible for informing the Owner and Agent in writing of any and all scheduled excavation to be done on site. All excavation shall be done by hand unless specifically authorized in writing by the Owner or Agent.
12. CONTRACTOR RESPONSIBILITY.
Contractor shall be responsible to Agent and Owner for the acts and omissions of Contractor’s suppliers, agents, employees and subcontractors. All contracts entered into by Contractor with any subcontractors shall require the subcontractors to be responsible for the acts and omissions of their agents and employees and compliance with the provisions of this Agreement to the extent applicable to the subcontractor’s portion of the Services. Personnel supplied by Contractor or any subcontractor will be deemed employees of Contractor or the subcontractor, as the case may be, and will not for any purpose be considered employees or agents of Agent or Owner. Contractor assumes full responsibility for the actions of such personnel while performing Services pursuant to this Agreement, and shall be solely responsible for their supervision, daily direction and control, payment of salary or equivalent (including, withholding of income taxes, stock options, contributions to pension or similar retirement programs, overtime pay, education programs, awards, special recognition events and social security contributions), worker’s compensation, disability benefits, social security taxes, unemployment insurance and the like. Contractor, as an independent contractor, is responsible for compliance with all applicable immigration, municipal, state, and federal laws regarding Contractor’s employees. The Contractor will not discriminate against any qualified employee or applicant for employment because of race, color, religion, gender, sexual orientation, age, national origin, disability, veteran status or any other status protected by federal, state or local law. The Contractor agrees to comply with all applicable state and federal statutes, executive Orders and Regulations relating to non-discrimination in employment. The Contractor agrees to comply with where applicable, the Equal Opportunity Clause of Executive order No. 11246, 41 CFR 60-1.5, The Affirmative Action Clause for Disabled Veterans and Veterans of the Vietnam Era in 38 USC 2012, Federal Procurement Regulations 1-4.410-5(a)(11) and 1-12.1102-2, 3, and 41 CFR 1-12.1306-1, 2, and the Utilization of Women-Owned Business Concerns pursuant to the Presidential Executive Order No. 12138. Contractor must also comply with the employment provisions of the Americans with Disabilities Act and any Immigration laws, rules and/or regulations. Contractor agrees to execute a Contractor Certification Affidavit regarding I-9 compliance of all employees working in the performance of the Services under this Agreement, in a form attached hereto as Exhibit “D”. Contractor warrants that it is and throughout the term of this Agreement will continue to be in full compliance with all Equal Employment Opportunity (E.E.O.) provisions as required by law, regulation or executive order, specifically including but not limited to, the provisions of executive order 11246 of September 24, 1965 as amended. If applicable, Contractor also agrees to execute and to keep in full force and effect throughout the term of this Agreement a Compliance Undertaking Standard Form 100 (Equal Employment Opportunity Employer Information Report E.E.O.-1). Contractor agrees to indemnify, defend and hold Owner and Agent harmless, and reimburse Owner and Agent for any expenses, attorney’s fees or liabilities incurred by Owner or Agent, in connection with Contractor violating any law, rule, or regulation.
13. MAINTENANCE OF RECORDS.
Contractor shall maintain written records in accordance with generally accepted accounting procedures showing in detail all costs which it incurs and payments which it receives in the performance of this Agreement, including, without limitation, the amount, purpose and recipient of such payment together with supporting documentation. Such records shall include, but shall not be limited to, payroll records, job cards, attendance cards and job summaries and shall be subject to audit and inspection by Agent, Owner and their respective agents and representatives during the term of this Agreement and for seven (7) years after its expiration or earlier termination, unless a longer period is required by law. Should the audit reveal errors in record keeping, Contractor shall immediately correct same and shall promptly inform Agent and Owner in writing of the action taken to correct such errors. Audits conducted by Agent or Owner, or their designees shall be an expense of Agent or Owner, provided, however, that if any such audit reveals that the aggregate expenses with respect to the Services are at least five percent (5%) less than indicated by the books and records maintained by Contractor, then Contractor shall promptly reimburse Agent and/or Owner for the cost of the audit. The right of Agent and/or Owner to audit the books and records maintained by Contractor shall survive the expiration or termination of this Agreement. Contractor agrees that if work and materials to be furnished by Contractor hereunder are for a building in which an office of the United States of America as a tenant is located, and if this Agreement is for an amount exceeding $2,500, Contractor shall permit the Controller General of the United States or any of his or her duly authorized representatives to have access to, and the right to examine any directly pertinent books, documents, papers and records pertaining to this Agreement until the expiration of three (3) years after final payment of any monies has been made pursuant to the provisions of this Agreement.
14. COMPLIANCE WITH LAWS AND POLICIES.
(a) Contractor shall at all times comply with all applicable federal, state and local laws, codes, ordinances, rules and legal requirements affecting the Services (including, without limitation, laws concerning the use, handling and disposal of hazardous materials, and laws concerning verifying an individual’s legal right to work in the United States), as well as Agent’s and Owner’s directives, guidelines, procedures, rules, regulations and the like which are furnished to Contractor.
(b) This Agreement shall be construed, and the legal relationships between the parties shall be determined, in accordance with the laws of the state in which the Property is located. No rights or remedies available to either party under this Agreement or by operation of law are waived or modified unless expressly waived or modified by that party in writing.
(c) Refrigerant Management. With any service work involving the use, removal, disposition, introduction, recycling or any handling of any refrigerants, including but not limited to, CFC or HCFC refrigerants, Contractor shall comply with all federal, state and local laws, ordinances and regulations. All invoices involving refrigerant equipment must be accompanied by a cumulative, historical equipment refrigerant-use log. Contractor shall be responsible for providing notice to Agent of any equipment leaking at a rate exceeding 15% of its total capacity. Contractor shall indemnify, defend and hold harmless Agent and Owner from any and all claims, damages, clean-up, fines, judgments, penalties, costs, liabilities, or losses, arising during or after the contract term, and arising as a result of any use, storage, generation, or disposal of any refrigerants or as a result of any breach of this Section 14(c).
15. TRADEMARK AND PUBLICITY.
Contractor shall have no right to use either Agent’s or Owner’s trademark or trade name, the Property or any image thereof or to refer to this Agreement or the Services performed hereunder directly or indirectly in connection with any product, promotion, advertisement or publication, or the like, without Agent’s or Owner’s prior written approval, as appropriate, which approval may be withheld for any reason or for no reason.
16. ETHICAL STANDARDS.
Contractor agrees that it will not make or confer, or offer to make or confer, any payment to or benefit upon any third party (including, without limitation, any government agency or instrumentality thereof) with the intent to influence the conduct of such third person regarding this Agreement or the business affairs of any of the parties to this Agreement or of the third party. Contractor shall not give or offer gifts, discounts, hospitality or entertainment (“Gifts”) to Agent’s or Owner’s employees or members of their families, which are in excess of the common courtesies associated with normal business practice and/or do not have a justifiable business purpose. Under no circumstances shall Contractor offer or give (i) cash, (ii) gift cards, or (iii) Gifts which might be perceived to impair impartial business judgment, particularly in connection with an anticipated or pending tender, business transaction or the like. The combined value of all Gifts from Contractor shall not exceed $1,000 in any one year period. Violation of this provision by anyone employed or retained by Contractor, or by Contractor itself, shall constitute a default under this Agreement by Contractor.
17. ATTORNEYS’ FEES.
In the event of any controversy, claim or litigation between or among Contractor, Owner and Agent arising out of or relating to the Services or this Agreement, the prevailing party shall be entitled to reasonable costs and expenses, including, without limitation, attorneys’ fees and expert witness fees, as fixed by a court of competent jurisdiction, from the non-prevailing party.
18. DEFINITION OF AGENT AND OWNER.
For purposes of this Agreement, any reference to Agent or Owner, except for defining the contracting parties, shall be deemed to include any shareholder, officer, director, principal, partner, beneficiary, subsidiary or Affiliate (hereinafter defined) of any of the foregoing, and their respective heirs, successors and assigns. The term “Affiliate” shall mean, with respect to a specified person, firm or corporation, a person, firm or corporation that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person, firm or corporation specified. For purposes of this definition, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
19. LIMITATION OF OWNER’S LIABILITY.
No general or limited partner in or of Owner, whether direct or indirect, or any direct or indirect partners in such partners or any disclosed or undisclosed officers, shareholders, principals, directors, employees, members, partners, servants or agents of Owner shall be personally liable for the performance of Owner’s obligations under this Agreement. The liability of Owner (including any assignee or successor of Owner) shall be limited to Owner’s interest in the Property. In the event this Agreement is executed by Agent, Contractor acknowledges and agrees that Agent is executing this Agreement “as agent for Owner” in its capacity as managing agent of the Property for Owner and that Agent shall have no liability or obligation to Contractor under this Agreement.
20. INDEPENDENT CONTRACTOR.
Agent, as managing agent for, and on behalf of, Owner, or Owner hereby engages Contractor to perform, as an independent contractor, the Services set forth in this Agreement. Nothing contained herein shall be deemed or construed to create any association, partnership, joint venture or relationship of principal and agent or master and servant or employer and employee between the parties hereto or any affiliates or subsidiaries thereof, or to provide either party with the right, power or authority whether expressed or implied, to create any duty or obligation on behalf of the other party.
21. TERMINATION.
(a) Agent and Owner shall each have the right, in their sole and absolute discretion and without payment of any penalty, to terminate this Agreement in whole or in part at any time during the term hereof upon thirty (30) days prior written notice to Contractor.
(b) If Contractor shall default in the performance of any of its obligations under this Agreement (including without limitation violation of any anti-corruption law), then, Agent and Owner shall each have the right, without payment of any penalty, to terminate this Agreement in whole or in part immediately upon written notice to Contractor. Furthermore, this Agreement and Agent’s obligation to pay any compensation to Contractor hereunder shall terminate immediately with respect to all transactions if the continuation of this Agreement would violate Applicable Anti-Corruption Laws (as such term is defined in Section 35 below).
(c) If a receiver, liquidator or trustee for Contractor shall be appointed by court order; or a petition shall be filed against Contractor under any bankruptcy, reorganization or insolvency law; or Contractor shall file a petition in voluntary bankruptcy or shall request reorganization under any provision of voluntary bankruptcy, reorganization or insolvency laws; or if Contractor shall make an assignment for the benefit of creditors, then this entire Agreement shall immediately terminate upon the happening of any such event.
22. INDEMNIFICATION.
Contractor shall, to the fullest extent permitted by law, indemnify and hold harmless Agent and Owner and their respective subsidiaries, affiliates, shareholders, directors, officers, partners and employees from and against any and all liability, claims and demands on account of damage to any property or injury to persons including death resulting therefrom, losses, damages, expenses (including attorneys’ fees and investigation costs), payments, recoveries and judgments in connection therewith, to the extent arising out of or caused in any manner by (i) the acts or omissions of Contractor, its employees, agents or subcontractors, or (ii) the performance or failure to perform any Services under this Agreement, or (iii) the breach of any representation or warranty or covenant or condition set forth herein by Contractor, or Contractor’s employees, agents or subcontractors, or (iv) the use of any Owner’s or Agent’s tools or equipment by Contractor, its employees, agents or subcontractors. Contractor shall, at its own expense, defend any and all actions brought against Agent or Owner based upon any of the foregoing and shall pay all attorneys’ fees and all other expenses, and promptly discharge any judgments, settlements or compromises arising therefrom. Contractor’s liability under this Section 22 shall survive the expiration or termination of this Agreement, but this shall not be construed to mean that Contractor’s liability does not survive as to other provisions of this Agreement.
23. COMPENSATION.
(a) In consideration for all of the Services to be rendered by Contractor hereunder, Agent, on behalf of Owner, agrees to pay to Contractor, subject to the provisions of this Agreement, the compensation set forth on the cover page hereof or, if applicable, Exhibit “B”.
(b) Under no circumstances will Contractor receive compensation in cash.
(c) Agent shall have no obligation to reimburse costs and expenses (if any) incurred by Contractor in connection with any Services provided hereunder, unless such costs and expenses are supported by receipts, etc., and such costs and expenses are permissible pursuant to Applicable Anti-Corruption Laws.
(d) Contractor agrees that Agent is acting only as an agent of Owner, and Contractor will look solely to Owner for any and all obligations or payments due or which may become due to Contractor under this Agreement. If at any time Agent is legally held to be an independent contractor of, rather than an agent for, Owner, Contractor agrees that it will not be paid until and unless Owner furnishes funds specifically designated for payment of the obligations due or to become due to Contractor.
(e) It is hereby agreed that payment to Contractor shall be conditioned upon approval of work by all inspecting authorities and submission by Contractor to Agent of satisfactory invoice documentation required by Owner (“Invoice Package”). A complete Invoice Package shall consist of the following: (i) contractor work tickets fully describing the work performed (if applicable); (ii) Agent supplied work ticket with all information completed (if applicable); (iii) copy of Agent’s Purchase Order and/or Work Order (if applicable) or this fully executed Agreement and amendments, if any; (iv) an appropriate contractor lien waiver and lien waivers from all Contractors and subcontractors and materialmen (if applicable); (v) Safety Data Sheets (“SDS”) for all regulated materials and substances left on site (if applicable); and (vi) a completed W-9 for federal tax purposes.
(f) If required by Agent, Contractor will utilize Agent’s electronic invoicing process (“EIP”). Once instructed to use EIP, Contractor shall not submit its invoices in any other format, including a paper invoice. If Contractor submits an invoice in another format, said invoice will be rejected and payment will consequently be delayed. Contractor will ensure that all information contained in any invoice it submits is accurate. If any information is inaccurate, Contractor’s invoice may be rejected and payment delayed.
24. LIMITATION ON AGENT’S OBLIGATIONS.
Notwithstanding anything to the contrary contained herein, Contractor acknowledges and agrees that Agent’s obligation to make payment to Contractor of any compensation hereunder shall be conditional upon Owner providing Agent with funds sufficient to pay such compensation to Contractor. In the event Owner shall fail or refuse for any reason whatsoever to provide Agent with funds sufficient to pay the compensation due to Contractor hereunder, then Agent will not be able to make any payment of such compensation to Contractor.
25. SERVICES GUARANTEE.
Contractor agrees to perform all Services in a good, timely and workerlike manner acceptable to Agent and Owner. Contractor unconditionally guarantees all materials, equipment and labor provided under this Agreement for one (1) year after date of final payment to Contractor hereunder or the date of final acceptance of the Services, whichever date is later and shall repair or replace within said period, at its sole cost and expense, any labor, materials or equipment provided or furnished under this Agreement that is damaged, defective or not satisfactory. Contractor shall make or commence to make, within three (3) days of its receipt of written notice from Agent or Owner during the guaranty period, any and all repairs or replacements, without cost to and to the satisfaction of Agent or Owner. If Agent or Owner determine that an emergency exists which requires more immediate action than Contractor is able to provide, Agent or Owner may, without sending any notice to Contractor, perform or cause to be performed such repairs or replacements that Contractor is required to make pursuant to this provision, in which event Contractor shall compensate Owner for the cost thereof not later than ten (10) business days after receipt of written demand therefor. Any repairs or replacements that Contractor is required to make pursuant to this provision shall be prosecuted to completion by Contractor even if such repairs or replacements may not be completed until after the expiration of the guaranty period. The obligations of Contractor to make repairs or replacements under this provision shall not be satisfied, unless the Owner so elects, by the payment of money to the Owner. If Agent or Owner determine in their sole and absolute discretion that any labor furnished or materials or equipment installed under this Agreement are inherently defective, thus being incapable of repair, then Contractor shall, upon notification by Agent or Owner of such a determination, provide a replacement for said labor, materials or equipment. In the event that Contractor fails to comply with this provision, the Owner may, in addition to exercising all other legal and equitable remedies it may have, (1) deduct from any payment due or thereafter to become due to Contractor under this Agreement, the amount of damage, cost or expense caused by said failure by the Contractor, and (2) perform or cause to be performed any needed repairs and replacements, in which event Contractor shall compensate the Owner for the cost thereof. The foregoing Guarantee is in addition and supplementary to any other guarantee which may be provided by Contractor. Warranties and guarantees issued by manufacturers of materials or equipment furnished by Contractor under this Agreement shall not in any way serve to limit the obligations of Contractor under this provision. Notwithstanding the foregoing sentence, any such warranties or guarantees shall inure to the benefit of Agent and Owner, their successors and assigns, and Contractor shall, to the extent possible, assign such warranties and guarantees to Owner.
26. ACTS BEYOND REASONABLE CONTROL.
No party shall be considered in default of any of its obligations under this Agreement to the extent that performance thereof is delayed or rendered impossible by acts of God, war, civil commotion, governmental action, fire, storm, flood, explosion, strikes, walkouts, or other industrial disturbances, or any other causes of any nature which is beyond its reasonable control.
27. PATENT/COPYRIGHT.
Contractor shall indemnify, hold harmless and defend, at its sole cost and expense, Agent and/or Owner from any loss, damage, expense (including attorneys’ fees and costs), payment, recovery and judgment arising out of any claim or threatened claim, alleging that any Services furnished hereunder infringe upon or violate a patent, copyright, trademark, trade secret or other proprietary right of any third party. Owner, at its sole cost and expense, shall have the right to be represented in any such action or proceeding by independent counsel of Owner’s own choice. Contractor’s liability under this Section 27 shall survive the expiration or termination of this Agreement, but this shall not be construed to mean that Contractor’s liability does not survive as to other provisions of this Agreement.
28. DIVISIBILITY.
In the event any provision of this Agreement is held to be illegal or unlawful, then the same shall be struck here from and all other provisions shall remain valid and in full effect.
29. ASSIGNMENT BY AGENT OR OWNER.
Agent and Owner shall each have the right in their sole and absolute discretion to assign their rights and obligations under this Agreement to any other party. If the Property is at any time sold or otherwise conveyed to a new owner, or if Agent ceases to be the representative of Owner, Contractor agrees that this Agreement shall be deemed automatically assigned to the new owner or the new representative of Owner (as the facts may dictate) and Contractor agrees that it will be paid only from funds furnished by Owner or the new owner for obligations then due or which thereafter become due to Contractor under the Agreement. Notwithstanding the foregoing, Owner may elect by giving prior written notice to Contractor, to terminate this Agreement effective as of the date that such sale is completed or effective as of the date that Agent ceases to be the representative of Owner, in which event this Agreement shall, except as otherwise provided herein, be of no further force or effect. In addition to the foregoing it is understood and agreed that if this Agreement is assigned to Owner or a purchaser of the Property, then from and after the date of such assignment Agent shall be released and discharged from any and all liability under this Agreement arising after the date of such assignment, and Owner (in the event of an assignment to it) or the purchaser of the Property (in the event of an assignment to it) shall be responsible for any and all such liability under this Agreement arising after the date of such assignment, and Contractor will not assert any prior default of Agent under this Agreement as a defense to the performance by Contractor of its obligations under this Agreement.
30. CONTROLLING PROVISIONS.
In the event of any conflict or any inconsistency between the terms of any of the paragraphs of the Service Contract, Service Contract Terms, and/or the terms of any Exhibit annexed hereto, the inconsistency shall be resolved by giving precedence in the following order: (i) the Service Contract, (ii) the Service Contract Terms, and (iii) the Exhibits annexed hereto.
31. NO THIRD PARTIES BENEFITED.
Nothing contained in this Agreement, either expressed or implied, is intended or should be construed to confer upon or give any person or entity, other than Agent, Owner or Contractor, or, subject to the terms of this Agreement, their successors and assigns, any rights or remedies under or by reason of this Agreement.
32. NOTICES.
All notices and correspondence required to be given to Agent or Owner or Contractor hereunder shall be addressed as set forth on the cover page to the attention of the person indicated, if any. Any party may designate a different address for the service of notices by notice given in accordance with this Section 32. Any and all notices required, or which either party herein may desire to give to the other, shall be made in writing and shall be given by certified or registered mail, postage prepaid, return receipt requested, or by recognized overnight courier, such as Federal Express, and shall be deemed to be given on the third business day following the date of posting in a United States Post Office or branch post office or one business day after delivery to the overnight courier. Notwithstanding the foregoing, Agent or Owner may provide a notice of termination via email at Contractor’s email address set forth on the cover page, as it may be updated.
33. INSURANCE.
Contractor shall, throughout the duration of this Agreement, at its cost and expense, carry and from time to time renew, the insurance set forth on Exhibit “C” annexed hereto and made a part hereof. Contractor agrees that the provisions set forth in this Section 33 and in Exhibit “C” shall be imposed upon, assumed and performed by each of its subcontractors, if any. Certificates in customary form, evidencing that premiums for the foregoing insurance have been paid, shall be delivered by Contractor to Agent simultaneously with Contractor’s execution of this Agreement and prior to Contractor performing any Services hereunder.
34. CONFIDENTIALITY OF OWNER’S RECORDS.
(a) Contractor acknowledges that all information disclosed by Owner or Agent to Contractor for purposes of performing the Services, or which come to the attention of Contractor during the course of performing such Services, constitutes a valuable asset of and is proprietary to Owner and/or Agent. Contractor also acknowledges that Owner, as a party in the business community, may have fiduciary responsibilities to its tenants or customers to keep their records confidential and proprietary. Contractor shall not disclose said information or knowingly permit its employees, officers or agents to disclose said information, to any non-employee of Contractor or to any employee of Contractor not having a specific need-to-know in performing the Services authorized by Agent and Owner. Additionally, Contractor agrees that all designs, plans, reports, specifications, drawings, inventions, processes and other information or items produced by Contractor for purposes of performing the Services, will be assigned to Owner as the sole and exclusive property of Owner and Owner’s assigns, nominees and successors.
(b) Contractor further agrees to instruct its employees, officers and agents not to sell, lease, assign, transfer or reveal to any organization, company or individual any of said information whether oral or written, without the prior written consent of Agent, and agrees to take all reasonable steps necessary to ensure fulfillment of this obligation.
(c) In the event that a subpoena or other legal process is served upon Contractor that in any way concerns information disclosed by Owner or Agent to Contractor, Contractor agrees to notify Agent immediately upon receipt of such subpoena or other legal process and will cooperate with Agent and/or Owner, at Owner’s or Agent’s expense, in any lawful effort by Owner and/or Agent to contest the legal validity of such subpoena or other legal process. This Section 34 shall survive the termination of this Agreement.
35. CONTRACTOR REPRESENTATION AND WARRANTIES.
(a) Contractor is aware of and familiar with the provisions of the U.S. Foreign Corrupt Practices Act, as amended, and its purposes, and any other anti-corruption law applicable in a jurisdiction in which Contractor or any party hereto may have conducted or will conduct business (herein “Applicable Anti-Corruption Laws”), and has not, directly or indirectly, violated any Applicable Anti-Corruption Law. Without limitation of the generality of the foregoing, neither Contractor nor any of his/her/its directors, officers, agents, employees or third parties acting on behalf of Contractor:
(i) has made or will make, directly or indirectly, any payment, loan or gift (or any offer, promise or authorization of any such payment, loan or gift), of any money or anything of value to or for the use of any Government Official under circumstances in which any of them knows or has reason to know that all or any portion of such money or thing of value has been or will be offered, given or promised, directly or indirectly, to any Government Official, for the purpose of inducing the Government official to do any act or make any decision in her/her official capacity (including a decision to fail to perform his/her/its official function) or use his/her/its influence with a government or instrumentality thereof in order to affect any act or decision of such government or instrumentality or to assist Agent in obtaining or retaining business;
(ii) has made or will make, directly or indirectly, any payment, loan or gift (or any offer, promise or authorization of any such payment, loan or gift), of money or anything of value to or for the use of any employee, agent, or representative of another company, or to any other person, under circumstances in which any of them knows or has reason to know that all or any portion of such money or thing of value has been or will be offered, given or promised, directly or indirectly, for the purpose of inducing or rewarding the Improper Performance of any public function or business activity; or
(iii) has received or will agree to receive, directly or indirectly, any payment, loan or gift (or any offer or promise of any such payment, loan or gift), of any money or anything of value as an inducement or reward for the Improper Performance of any public function or business activity;
(b) For purposes of this Agreement, a “Government Official” is (a) an officer, employee or any person acting in an official capacity for or on behalf of a government, including its departments, agencies, instrumentalities, quasi- or partially-government owned or controlled entities; (b) an officer or employee of an international organization (e.g. World Bank, United Nations); (c) an officer or employee of a political party or any party official, or a candidate for political office; (d) a member of the royal or ruling family of a country; or (e) any individual who is a principal or senior manager of, or who has an immediate family or close personal relationship or business ties with, any of the foregoing individuals or entities.
(c) For purposes of this Agreement, “Improper Performance” means the performance or non-performance by a person of an act, or the making of a decision, in breach of an expectation or duty of good faith, impartiality, and/or trust, including for the purpose of securing an improper business advantage for Contractor.
(d) Contractor will, and will cause his/her/its directors, officers, agents, employees or third parties acting on behalf of Contractor to act in full compliance with Agent’s Global Anti-Corruption Policy, to the extent permissible under local law and to the extent Agent’s Global Anti-Corruption Policy applies to Contractor. A copy of Agent’s Global Anti-Corruption Policy shall be furnished to Contractor upon Contractor’s written request therefor.
(e) Neither Contractor nor any of his/her/its directors, officers, agents, employees or third parties acting on behalf of Contractor has a family relationship with any Government Official in the jurisdictions in which it or they will conduct business pursuant to this Agreement, except as disclosed to, and agreed to in writing, by Agent. Contractor will advise Agent promptly to the extent any such family relationship arises during the term of this Agreement, and Contractor and each of his/her/its directors, officers, agents, employees or third parties acting on behalf of Contractor will provide adequate assurances, whether in the form of a certification, a formal recusal by the relevant family member or otherwise, to satisfy Agent that no violation of Applicable Anti-Corruption Laws will arise as a result of such family relationship. Should in any instance Agent determine, reasonably and in good faith, that Contractor or any of his/her/its directors, officers, agents, employees or third parties acting on behalf of Contractor has failed to provide adequate assurances that a particular family relationship will not violate the Applicable Anti-Corruption Laws, Agent reserves the right to terminate this Agreement immediately in accordance with this Section.
(f) Contractor will use all reasonable efforts to assist and cooperate with Agent in relation to any police, judicial or regulatory investigation in relation to any suspected bribery or corruption.
(g) Contractor will, and will cause his/her/its directors, officers, agents, employees or third parties acting on behalf of Contractor to act in full compliance with Agent’s Global Vendor/Supplier Integrity Policy, to the extent permissible under local law and to the extent Agent’s Global Vendor/Supplier Integrity Policy applies to Contractor. A copy of Agent’s Global Vendor/Supplier Integrity Policy shall be furnished to Contractor upon Contractor’s written request therefor.
36. NOTIFICATION/CERTIFICATION REQUIREMENTS.
Upon request, Contractor agrees that it will, and at least annually, certify the continuing accuracy of the Representations and Warranties provisions of this Agreement. Contractor further agrees that should it learn of information regarding any possible violation of applicable laws and regulations in connection with Agreement, Contractor will immediately advise Agent of such knowledge or suspicion.
37. ANTI-MONEY LAUNDERING/ECONOMIC SANCTIONS.
Contractor has not, directly or indirectly, entered into any transaction that violates any applicable anti-money laundering law or policy, and there has been no action by any person, or any internal investigation, relating thereto. Contractor is aware of and familiar with all U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) and applicable international laws and regulations pertaining to the detection and, prevention, and reporting of potential money laundering and terrorist financing activities. Contractor has not conducted business with individuals, entities, organizations or countries that are targets of U.S. sanctions laws and regulations or other applicable international economic sanctions laws and regulations. Contractor has not, directly or indirectly, made funds available to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person, or in any country or territory, that, at the time of such funding, is subject to any U.S. sanctions administered by OFAC. Neither Contractor nor any of its directors, officers, agents, employees or third parties acting on behalf of Contractor:
i. is listed on the Specially Designated Nationals (“SDN”) list maintained by OFAC or any other similar list maintained by the United States Department of State, Department of Commerce or any other government authority or pursuant to any Executive Order of the President;
ii. have been determined to be subject to the prohibitions contained in Presidential Executive Order No. 13224;
iii. has been previously indicted for or convicted of any Patriot Act Offense.
38. MISCELLANEOUS.
(a) Authority. Each individual signing this Agreement on behalf of a legal entity represents that he or she holds the office and/or position in such legal entity respectively indicated hereinafter for him or her, and has full right and power and has been duly and legally authorized to act on behalf of such legal entity in executing and entering into this Agreement.
(b) Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original of this Agreement but all of which, taken together, shall constitute one and the same Agreement. Signatures transmitted by e-mail (via PDF format) shall be acceptable for purposes of execution of this Agreement.
(c) Federal Contracts. In the event a tenant in the Property is a federal entity, Contractor shall comply with any employment eligibility verification requirements, attached hereto as Exhibit “F”.
39. ENTIRE AGREEMENT.
This Agreement and any Exhibits annexed hereto shall constitute the entire understanding between the parties with respect to the subject matter hereof and all prior representations or agreements, whether written or oral, are merged herein. This Agreement shall not be varied by an oral agreement or representation or by anything other than an instrument in writing of a subsequent date hereto, executed by both parties by their duly authorized representatives.