TERMS AND CONDITIONS
IntelliSys Solutions Group Subcontractor Terms and Conditions
Subcontractor acknowledges and represents to IntelliSys that it has carefully examined and reviewed the Prime Contract and is familiar and satisfied with the provisions of the Prime Contract as it may have any effect upon Subcontractor’s rights or performance under this agreement.
Subcontractor shall require and cause its subcontractors, agents and material suppliers to comply with the terms of this agreement and the Prime Contract.
This subcontract (agreement) represents the entire agreement of the parties. All of the terms and conditions set forth herein are an integral part of the subcontract, supersede any contrary provisions, supersede Subcontractor’s quotation form or proposal, and may not be varied or modified in any manner, except by a subsequent writing signed by an authorized representative of Contractor.
In the event of conflicts or inconsistencies between provisions of this agreement and the Prime Contract documents, this agreement shall govern.
Subcontractor’s execution of this Subcontract, shipment of the material or any portion thereof, the commencement of any work, or the performance of any services hereunder shall constitute acceptance by Subcontractor of all conditions contained in this Agreement.
RELATIONSHIP OF PARTIES
The Subcontractor accepts the relationship of trust and confidence established by this agreement and pledges its fullest cooperation with IntelliSys to exercise its skill and judgment in furthering the interests of the team; to furnish efficient business administration and supervision; to furnish at all times an adequate supply of workers and materials; and to perform the subcontracted work in an expeditious and economical manner consistent with the team’s interests.
IntelliSys agrees to furnish and approve, in a timely manner, information required by the Subcontractor to perform the subcontracted work and to make payments to the Subcontractor in accordance with the requirements of this agreement.
Subcontractor shall not assign or sub-subcontract the whole or any part of subcontract work or this agreement without prior written approval of IntelliSys.
Subcontractor shall perform subcontracted work under the general direction of IntelliSys and shall cooperate with Contractor, to fulfill obligations to the Prime Contract. As such, the subcontracted work shall be carried out in strict compliance with the Subcontract agreement.
Subcontractor shall provide subcontract work for the project in accordance with the Progress Schedule to be prepared for potential disruptions, and as it may change from time to time.
Subcontractor shall give timely notices to IntelliSys and to authorities pertaining to subcontracted work, and shall be responsible for all permits, fees, licenses, assessments, inspections, testing and taxes necessary to complete subcontract work.
IntelliSys shall obtain from Prime Contract Owner and provide to subcontractor a copy of tax-exempt certificates, if any, applicable to this Project. Notwithstanding, it is subcontractor’s obligation to determine all local, state, and federal taxes measured by or imposed in connection with the performance of the subcontract work or furnishing of materials hereunder, including but not limited to all sales, consumers, and use taxes imposed by reason of the purchase or use of any kind of personal property in the performance hereof. The Subcontractor shall incorporate into the subcontract amount, and pay, all such applicable taxes.
The Subcontractor shall secure, defend, protect, hold harmless, and indemnify IntelliSys from and against any and all liability, loss, claims, demands, suits, costs, fees and expenses (including actual fees and expenses of attorneys, expert witnesses, and other consultants) relating to any taxes assessed or imposed upon, incurred by or asserted against IntelliSys by any taxing authority with respect to such taxes.
The Subcontractor shall cooperate with and assist IntelliSys in securing qualified refunds of any sales or use tax paid by IntelliSys or subcontractor on goods, products, materials, equipment or systems. Any refund secured shall be paid to IntelliSys to be distributed as needed.
When time and material, hourly rate or overtime work is authorized by IntelliSys in accordance with this agreement, Subcontractor will submit time sheets and material delivery records on a regular basis for acceptance by IntelliSys authorized representative.
If requested, the subcontractor will provide access to all pertinent records required to establish the validity of payment requests. No payment will be due for time and material, hourly rate or overtime work absent strict compliance with this agreement.
Overtime will not result in an adjustment to the Subcontract Price unless IntelliSys requests specific overtime in writing and agrees in writing to adjust the Subcontract Price for the overtime work specified. Such overtime will be chargeable at actual cost of the premium portion of labor only, plus legally applicable labor taxes and fringes. All other overtime shall be deemed voluntary and is at Subcontractor’s sole expense.
To protect persons and property, the subcontractor shall establish a safety program implementing safety measures, policies and standards conforming to (1) those required or recommended by governmental authorities having jurisdiction and (2) requirements of this agreement and the Prime Contract. Subcontractor will comply with procedures and policies established by Owner or IntelliSys related to safety, security, access, working hours, drug-free workplace, etc., at the project and assumes responsibility for all project safety related to the subcontracted work.
IntelliSys may, in writing signed by its authorized agent and without notice; and without invalidating this subcontract, make changes by substituting for, adding to, deducting from or otherwise changing the Subcontract Work, with the Subcontract Price adjusted accordingly. However, the subcontractor is not obligated to perform any changes absent a prior written directive signed by an IntelliSys authorized agent.
Any extra work performed without written directive from IntelliSys in accordance with this Subcontract will be at Subcontractor’s sole expense, including any extra work attributable solely to IntelliSys acts or omissions. In addition, the subcontractor shall be liable for any and all losses, costs, expenses, damages, and liability of any nature whatsoever associated with or in any way arising out of any such change it makes without written direction from IntelliSys.
All change proposals must strictly comply with the Prime Contract, and the subcontractor is bound by any decisions of Prime Contract Owner relating thereto.
If Subcontractor discovers a condition or situation that it believes constitutes a change to the Subcontract Work, or otherwise requires a change to the Contract Documents, Subcontractor shall provide written notice of the change request to IntelliSys within five (5) calendar days from discovering such changed condition or situation.
PROGRESS AND FINAL PAYMENTS
As a condition of payment, Subcontractor shall provide a schedule of labor charges satisfactory to IntelliSys and the Prime Contract requirements before final payment from Prime Contract Owner for both IntelliSys and Subcontract Work.
Progress payments, less retainage, shall be made to the Subcontractor, for subcontracted work satisfactorily performed, no later than 30 days after receipt by IntelliSys of payment from Prime Contract Owner for work performed. Final payment of the balance due shall be made to the subcontractor no later than 30 days after receipt by IntelliSys of final payment from Prime Contract Owner for all work.
These payments are subject to approval of the Subcontract Work by IntelliSys and the Prime Contract Owner’s representative, to the extent required by the Prime Contract; as well as submittal of all labor rates, technical documentation, software source code, warranties, or other documentation required by this Agreement
Receipt of Prime Contract Owner’s payment for subcontractor’s work shall, to the fullest extent permitted by law, be an express condition to the right of subcontractor to receive payment from IntelliSys. The subcontractor’s right to payment shall not be enlarged by reason of the existence of any labor and material payment bond, mechanic’s lien discharge bond or other security that may exist.
IntelliSys may reject a subcontractor payment application or nullify a previously approved payment application, in whole or in part, as may reasonably be necessary to protect IntelliSys from loss or damage caused by the subcontractor’s failure to (1) timely perform Subcontract Work, (2) properly pay its subcontractors or suppliers, or (3) promptly correct rejected, defective or nonconforming Subcontract Work, (4) third party claims involving the Subcontractor or reasonable evidence demonstrating that third party claims are likely to be filed unless and until the Subcontractor furnishes the Contractor with adequate security in the form of a surety bond, letter of credit or other collateral or commitment which are sufficient to discharge such claims if established.
In the event that any of subcontractor’s material suppliers, laborers, or lower-tier subcontractor, suppliers, or laborers records a lien against the project, and the lien claim is not resolved such that the lien claimant does not voluntarily remove the lien within 30 days of its recording, IntelliSys has the right to demand that the subcontractor obtain and record a lien discharge bond. Subcontractor shall promptly obtain and record a lien discharge bond, at Subcontractor’s expense, if IntelliSys so elects to exercise this right.
Subcontractor’s receipt of final payment from IntelliSys shall constitute a waiver of all claims by Subcontractor relating to Subcontract Work but shall in no way relieve Subcontractor of liability for warranties, or for nonconforming or defective work discovered after final payment.
If, at Subcontractor’s request or at IntelliSys judgment, IntelliSys is required to deviate from its normal progress payment procedures due to the subcontractor’s inability to meet its obligation under the Subcontract, any additional cost or expense thereby incurred may be back charged against any sum due or to become due to Subcontractor, including an administrative fee equal to two percent (2%) of each affected payment.
Before commencing the Subcontract Work, and as a condition precedent of payment, the Subcontractor shall purchase and maintain all insurance required by IntelliSys and the Prime Contract.
Subcontractor shall name as additional insureds on its insurance policies for all purposes, including completed operations coverage, for the period required by the Contract Documents: IntelliSys; Prime Contract Owner; any party identified as an indemnified party in the Contract Documents; and anyone the Contractor is required to name as an additional insured in the Contract Documents.
When required by the Subcontract, Subcontractor shall furnish to IntelliSys, surety bonds in a form acceptable to the Prime Contract Owner, and through a surety mutually agreeable to IntelliSys and the Subcontractor, to secure faithful performance of Subcontract Work and to satisfy Subcontractor payment obligations related to Subcontract Work.
To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless IntelliSys, other subcontractors, the Prime Contract Owner and their agents, consultants and employees (the Indemnities) from all claims for bodily injury and property damage that may arise from the performance of the Subcontract Work, including reasonable attorneys’ fees, costs and expenses, that arise from the performance of the Work, but only to the extent caused by the acts or omissions of the Subcontractor, the Subcontractor’s sub-subcontractors or anyone employed directly or indirectly by any of them or by anyone for whose acts any of them may be liable.
Except to the extent a loss is covered by applicable insurance, risk of loss and/or damage to the Subcontract Work shall be upon the Subcontractor until Subcontract Work completion.
Should Subcontractor at any time (i) fail to supply a sufficient number of skilled workmen or a sufficient quantity of materials of proper quality; (ii) fail to commence and/or to prosecute the Subcontract Work with promptness and diligence; (iii) fail to meet specified quality; (iv) breach or fail to perform any provision of the subcontract and failure to cure within 10 days following notice from contactor; (v) become insolvent, file a petition in bankruptcy, (vi) refuse or be unable to provide Contractor with reasonable assurances that Subcontractor has financial wherewithal to complete the Subcontract Work, IntelliSys shall issue written notice confirming the intended termination of the contract and allow the subcontractor to respond with cure or confirm acceptance
IntelliSys may, at its option, in addition to other available legal and equitable remedies, terminate the Subcontract, and shall then have the right to take possession, for the purpose of completing the Subcontract Work, of all the materials, tools, and equipment Subcontractor has on the Project, and to finish the Subcontract Work.
In the event of an emergency affecting the safety of persons or property, IntelliSys may proceed as above without notice, but give Subcontractor notice promptly after-the-fact as a precondition of cost recovery.
In the event of such a termination, Subcontractor agrees to assign to IntelliSys any purchase order or subcontract that IntelliSys deems necessary to complete the Subcontract Work. IntelliSys will credit the subcontractor’s account with the value of the materials and suppliers so used but there will be no credit for rent on equipment.
In the event IntelliSys performs or completes Subcontract Work through issues listed above, all costs incurred by IntelliSys, including reasonable overhead, profit and attorneys’ fees, costs and expenses (“completion costs”), shall be deducted from any monies due or to become due Subcontractor. Subcontractor shall be liable for payment of any amount by which such expense may exceed the unpaid balance of the Subcontract Amount.
If the completion costs are less than the monies due to the subcontractor as of the date of the termination, then Subcontractor shall receive as its entire and sole compensation the balance after deducting the completion costs.
The Parties agree that the terms of this Article shall be binding if IntelliSys in good faith has determined that the Subcontractor’s performance is inadequate and that the Prime Contract Owner or IntelliSys or other subcontractor may be damaged, or IntelliSys may be unable to perform its contractual obligations unless they proceed under this article. The Parties agree that such determinations are difficult to make and must be made under pressing circumstances and agree to be bound in accordance with this article in light of the circumstances confronting IntelliSys at the time such a decision is made.
IntelliSys may, at its option, terminate for convenience the Subcontract Work in whole or in part by written notice to Subcontractor. Such notice shall specify the extent to which the performance of work is terminated and the effective date of such termination. Upon receipt of such notice, Subcontractor shall; (a) immediately discontinue the Subcontract Work on the date and to the extent specified in the notice and enter into no further sub-subcontracts or purchase orders, other than as may be required for completion of such portion of the Subcontract Work that is not terminated; (b) promptly obtain cancellation upon terms satisfactory to Contractor on all purchase orders, sub-subcontracts, rentals, or any other agreements existing for the performance of the terminated work. Upon any such termination, IntelliSys shall have no liability for any damages, including loss of anticipated profits.
As its sole right and remedy, Subcontractor shall be paid the following: (a) all amounts due and not previously paid to Subcontractor for Subcontract Work completed in accordance with the Subcontract prior to such notice of termination, and for work thereafter completed as specified in such notice; (b) reasonable administrative costs of settling and paying claims arising out of the termination of Subcontract Work under sub-subcontracts or purchase orders; and (c) reasonable costs incurred in demobilization and the disposition of residual material, plant and equipment.
Subcontractor shall submit within 30 days after receipt of notice of termination, a proposal for an adjustment in compensation, including all incurred costs described in paragraph above. IntelliSys shall review, analyze, and verify such proposal, and, if not satisfied, negotiate an equitable adjustment, and the Subcontract shall be amended in writing accordingly.
DISPUTES AND DAMAGES
Unless otherwise agreed in writing, the Subcontractor shall continue Subcontract Work and maintain the Progress Schedule during any dispute resolution proceedings. If the Subcontractor continues to perform, IntelliSys shall continue to make payments in accordance with this agreement.
If a dispute arises out of or relates to this Agreement, the Parties shall endeavor to settle the dispute through direct discussion. Disputes between the Subcontractor and IntelliSys not resolved by direct discussion shall be submitted to mediation and the Parties shall select the mediator within fifteen (15) Days of the request for mediation. Engaging in mediation is a condition precedent to any form of binding dispute resolution.
If the matter is unresolved after submission of the matter to mediation, the dispute shall be resolved by litigation in the State of Delaware where IntelliSys Solutions Group is incorporated. Delaware law shall govern the interpretation of this Subcontract.
The costs of any binding dispute resolution procedure, including attorney and/or professional fees, shall be borne by the non-prevailing Party, as determined by the adjudicator of the dispute.
COMPLIANCE WITH LAW
Subcontractor shall, in the conduct of the Subcontract Work, comply with all applicable Executive Orders and Federal, state and local laws, ordinances, rules, and regulations, including those provisions related to zoning, and building codes and those provisions governing Equal Employment Opportunity and shall treat all persons without regard to sex, race, creed, color or national origin.
Subcontractor shall provide IntelliSys, upon written request, copies of supporting documentation to substantiate the representations in this agreement, including but not limited to Certificate of Good Standing from the Secretary of State and Licenses from the jurisdiction where the Subcontract Work shall be performed.
Subcontractor may obtain confidential or proprietary information related to IntelliSys, Prime Contract Owner or the Project in the course of Subcontractor’s performance under this agreement and Subcontractor’s completion of the Subcontract Work. Subcontractor: agrees not to use such information for any purpose other than completion of the Subcontract Work; agrees to hold all such information in confidence and not disclose the same to any third party except to persons who need to know such information in connection with the completion of the Subcontract Work. Subcontractor shall be responsible for any breach of these provisions by its employees, agents and disclosees, and Subcontractor agrees that IntelliSys may obtain injunctive relief to enforce the restrictions.