General Terms and Conditions for Subcontractors
Dynamic Ratings, Inc. · Project Engineering · Document DR06-01-06-U · Revision B, November 22, 2022
These General Terms and Conditions apply to subcontractors providing Equipment and performing Work for Dynamic Ratings, Inc.
Contents
- Definitions
- Subcontractor’s Obligations
- Term and Effective Date
- Relationship of the Parties
- Assignment and Subcontracting
- On-Site Activities (Applicable when Subcontractor is on Site)
- Equipment
- Inspection and Acceptance
- Schedule
- Shipment and Delivery
- Title and Risk of Loss
- Terms of Payment
- Changes in Work
- Backcharges
- Taxes
- Insurance
- Indemnification
- Limitation of Liability
- Liens
- Intellectual Property
- Drawings and Data
- Confidentiality
- Default
- Damages for Delay
- Force Majeure
- Suspension
- Termination
- Materials and Workmanship Warranty
- Reporting of Complaints
- Retention and Examination of Information, Books and Records
- Compliance with Laws
- Permits and Licenses
- Notices
- Severability
- Waiver
- Non-Disclosure
- Headings
- Affiliated Companies
- Applicable Laws and Jurisdiction
- Entire Agreement
- Binding Effect; No Third-Party Beneficiaries
- Execution; Counterparts; Electronic Signatures
- Survival
- End of Document
1. Definitions
Subject to additional definitions contained in subsequent Articles, capitalized terms used in these General Terms and Conditions for Equipment have the meanings set forth below:
| Term | Definition |
|---|---|
| Business Day | Any calendar day, other than a Saturday or Sunday or a calendar day on which U.S. commercial banking institutions are authorized or required by law to close. |
| Change Order | A written order as defined and issued in accordance with Article 13). |
| Contract | The Contract Letter signed by the parties and all documents referenced in the Contract Letter. |
| Contract Price | The price to be paid to the Subcontractor for the performance of Work as set forth in the Contracting Instrument. |
| Contracting Instrument | The contractual document that identifies the parties, the nature of the Work, the Contract Price, documents to be included as part of a Contract, and other matters relating to a Contract. The Contracting Instrument may be in the form of a contract letter, blanket purchase order, purchase order or other similar documents. |
| Direct Cost | The actual costs and charges incurred, and payments made by Subcontractor, its Subcontractors for Site Equipment, materials, services and labor (including payroll burden and expenses) which are directly attributable to the performance of Subcontractor’s Work hereunder. Direct Cost includes Subcontractor’s home office or Site labor to the extent Subcontractor’s home office or Site labor is directly assignable to the Work which must be demonstrable under the circumstances. Direct Cost shall not include corporate, general and administrative costs including home office functions, sales, marketing, accounting, human resources, information technology, payroll, profit, research, development, quality assurance and control, purchasing, safety, management, administration, warranties, insurances, off-Site or other unabsorbed costs. |
| Equipment | All goods, materials and accessories to be purchased under the Contract, including all documentation required by the Contract. |
| Final Acceptance | Dynamic Ratings determination that the Work has been completed in accordance with the Contract requirements. |
| Initial Acceptance | Dynamic Ratings determination prior to final inspection and testing that the Work conforms to the Contract requirements for purposes of receipt. |
| Subcontractor | The entity providing Equipment and performing Work under the Contract. In performing Work under the Contract, Subcontractor shall be an independent contractor. |
| Site | The property owned by Dynamic Ratings customer or such other premises (including adjacent bodies of water and property owned or controlled by a third-party) upon which the Work is to be performed. |
| Third-Tier Subcontractor | Vendors, suppliers, consultants, and subcontractors of any tier, materialmen, professionals, laborers, and all other persons providing equipment, materials or services directly or indirectly to Subcontractor in connection with the Work. |
| Work | All of Subcontractor’s obligations under the Contract. |
2. Subcontractor’s Obligations
a) Subcontractor shall at its expense provide everything necessary for the complete, proper and timely execution of the Work including, but not limited to, home office support, engineering, design, fabrication, materials, supplies, manufacturing, transportation, technical field assistance, drawings and documentation, unless explicitly excluded in the Contract documents.
b) Subcontractor is responsible for considering the conditions affecting the Work including, but not limited to, conditions affecting the transportation, handling and storage of materials; the availability and cost of labor and materials; and the uncertainties of weather, river stages, and similar physical conditions affecting delivery of the Equipment.
c) Subcontractor shall properly connect and coordinate its Work with Dynamic Ratings and others and shall notify Dynamic Ratings if problems with the work of others hinders Subcontractor in the performance of its Work.
d) Subcontractor shall ensure that its values or code of conduct meets or exceeds that of Dynamic Ratings DRPD-07-G Social Responsibility and Sustainable Procurement Policy.
3. Term and Effective Date
a) The Contract shall commence as of the effective date and, unless terminated earlier as provided in clause 27 below, shall terminate on the termination date set forth in the Contract. Unless specified elsewhere in the Contract, the effective date of the Contract shall be the earlier of the date on which Subcontractor begins performance hereunder or the date of the latter signature on the Contract.
4. Relationship of the Parties
a) Subcontractor and all its employees and Subcontractors are, with respect to Dynamic Ratings, independent contractors. Subcontractor will be solely responsible for the supervision, direction, and control of its employees and Subcontractors. Subcontractor is responsible for the payment of all compensation, benefits, and employment taxes with respect to the Subcontractor’s employees.
5. Assignment and Subcontracting
a) Subcontractor shall not assign or otherwise dispose of the Contract, or any obligations hereunder, without the written consent of Dynamic Ratings. Any assignment or disposal without the written consent of Dynamic Ratings shall be null and void.
b) Third-Tier Subcontractors are not permissible without prior written authorization from Dynamic Ratings. If a Third-Tier Subcontractor is authorized, Subcontractor is responsible for the selection of the Third-Tier Subcontractor and for such Third-Tier Subcontractor’s proper performance of the Work assigned to it. If the work of a Third-Tier Subcontractor is not in compliance with the Contract requirements, Subcontractor shall take immediate steps to bring the Third-Tier Subcontractor’s work into compliance and, at Dynamic Ratings written request, terminate its contractual relationship with the Third-Tier Subcontractor as it relates to the Work at no cost to Dynamic Ratings.
6. On-Site Activities (Applicable when Subcontractor is on Site)
a) Subcontractor shall have an authorized representative at the Site to whom Dynamic Ratings may give instructions at all times when Work is being performed.
b) Subcontractor shall always have competent supervision at the Site to direct and observe the Work performed. Subcontractor will investigate and take appropriate action with respect to any personnel problems brought to its attention by Dynamic Ratings.
c) Subcontractor shall confine all its operations and personnel to those areas of the Site to which Dynamic Ratings authorizes access.
d) Subcontractor’s personnel may not operate Dynamic Ratings tools, vehicles, materials or equipment (“Dynamic Rating’s Equipment”) without Dynamic Ratings prior authorization. If Subcontractor borrows Dynamic Ratings Equipment, Subcontractor (a) agrees that Dynamic Ratings has provided the equipment AS IS, with no representations or warranties; (b) assumes full responsibility for the protection of the borrowed Equipment; (c) assumes all liability for injuries or damages resulting from the use of the borrowed Equipment; and (d) agrees to return the borrowed Equipment to Dynamic Ratings in the same condition as when it was borrowed, or, if repairs are necessary, to cause such repairs to be performed promptly at Subcontractor’s expense before the Equipment is returned to Dynamic Ratings. Dynamic Ratings has no obligation to lend equipment to Subcontractor.
e) Subcontractor shall cooperate with Dynamic Ratings and others working at or near the Site. Subcontractor shall promptly report to Dynamic Ratings any defects in the work of others which impacts the Work. Failure to report such defects constitutes acceptance of the conditions by Subcontractor.
f) Subcontractor shall keep all of its work areas free from trash and debris and keep its work areas “broom clean” on a continuous basis.
g) Subcontractor shall dispose of all trash and debris in an environmentally responsible manner and in accordance with local, state, and federal regulations. Subcontractor shall recycle waste as appropriate.
h) Subcontractor shall secure and protect its own materials, tools, equipment and the Work, including Dynamic Ratings-provided materials and equipment.
i) Subcontractor shall comply with any project, national or local labor agreements that are applicable to the Work or Site. Subcontractor shall cooperate with Dynamic Ratings and others in establishing and maintaining work rules and practices.
j) Subcontractor shall perform the Work in a safe and careful manner and use such safety devices and methods as are necessary to protect its employees, agents, Subcontractors, Dynamic Ratings employees and agents, other contractors and Subcontractors, and the public from bodily injury and property damage.
k) Subcontractor shall comply with and enforce all laws, rules and regulations applicable to safety and health standards, including, but not limited to, the Occupational Safety and Health Act of 1970 (OSHA) and any revisions of OSHA or successor legislation.
l) Subcontractor shall comply with all project and Site safety and security rules and all procedures issued by Dynamic Ratings and the property owner, provided that such rules and procedures do not conflict with OSHA or other safety laws, rules or regulations. Subcontractor shall always assign a competent person to manage, coordinate and enforce its safety program during performance of the Work.
m) Subcontractor and all Third-Tier Subcontractors performing Work at Site must have a substance abuse program. This program must apply to all personnel. Minimum requirements of this program shall include pre-hire testing, testing for cause and if requested, random testing. Screening substances and their associated cut-off limits are listed below.
| Drug Classes | Screening Cut-Off Limit (ng/ml) |
Confirmation Cut-Off Limit (ng/ml) |
|---|---|---|
| Amphetamines | 1,000 | 500 |
| Benzoylecgonine | 300 | 150 |
| Cannabinoids | 50 | 15 |
| Opiates | 2,000 | 2,000 |
| Phencyclidine | 25 | 25 |
| Blood & breath alcohol content: 0.02% per Department of Transportation. | ||
n) Testing shall be performed by a testing facility certified by Department of Health & Human Services. Personnel must have evidence of having tested negative within a year prior to employment. Dynamic Ratings will accept conditional employment predicated upon (a) employee(s) furnishing evidence that they have submitted to testing within forty-eight (48) hours of initial employment and (b) employee(s) furnishing evidence of negative test results within five (5) Business Days of initial employment. Subcontractor shall ensure personnel are “drug free”. Dynamic Ratings reserves the right to examine evidence outlined herein. Subcontractor’s program shall incorporate reciprocity on “drug free” employee verification to minimize Dynamic Ratings economic impact, and employees’ recertification while maintaining the program’s intent.
o) If required by the Site Owner, Subcontractor may be required to meet certain security criteria. Dynamic Ratings will provide details when applicable.
p) Subcontractor may be required to submit to Dynamic Ratings a copy of its background investigation process for Dynamic Ratings review and file. If Dynamic Ratings, in its sole discretion, determines that Subcontractor’s background investigations do not meet certain specific requirements, then Subcontractor, at its expense, must perform a background investigation that does meet Dynamic Ratings certain specific requirements on each individual designated by Subcontractor to perform Work, or is performing Work on behalf of Subcontractor, for Dynamic Ratings (referred to herein for purposes of this Article, as an “individual”). Notwithstanding anything to the contrary stated herein, Dynamic Ratings reserves the right to conduct a background investigation on each individual at Subcontractor’s expense.
q) Dynamic Ratings certain specific requirements of background investigations include the following: (i) determination of whether an individual has been convicted of a felony crime in each state where the individual has resided during the past seven years; (ii) performance of the background investigation at the state level (in other words, to only search the records of the county in which the individual has resided during the past seven years is not a sufficient background investigation); and (iii) if the individual is to operate a motor vehicle while performing Work for Dynamic Ratings, then a state operator’s license abstract must be completed in the states where the individual has been licensed as a vehicle operator during the past seven years.
r) If any background investigation reveals or indicates that an individual has been convicted of a felony crime, then the Subcontractor must notify Dynamic Ratings prior to the individual commencing Work. Dynamic Ratings in its sole discretion shall have the option of barring from any Work Site any individual who has a reported felony conviction. Dynamic Ratings may audit or review specific Subcontractor screening files to ensure compliance with the Contract.
s) If an individual requires unescorted access to Dynamic Ratings critical cyber assets, then Dynamic Ratings or the Site property owner will conduct its own background investigation, which will include a Social Security Number verification. Additional specific provisions or requirements related to any Dynamic Ratings conducted background investigation pursuant to this Section 6.f will be communicated to Subcontractor prior to implementation of such background investigation.
t) Subcontractor shall not perform any screening activities that violate the federal Fair Credit Reporting Act, Title VII of the Civil Rights Act of 1964 or any other applicable law in any circumstances. Subcontractor shall ensure that the substance and manner of any and all background investigations performed by Subcontractor conform fully to applicable law.
u) “Personally Identifiable Information” or “PII” means any information to which Subcontractor is provided access that could identify an individual either directly or indirectly including, without limitation to the individual’s name, credit card numbers, social security number, biometric, bank account numbers, passport numbers, computer passwords or health, financial or employment information and other individual confidential information.
v) To the extent that Work under the Contract requires Subcontractor to be given access to Personally Identifiable Information (PII) gathered and/or maintained by or on behalf of Dynamic Ratings, or in the event Subcontractor acquires access to or encounters any PII during performance of the Work, Subcontractor shall after receipt thereof, treat such PII as confidential and safeguard such PII from unauthorized use and disclosure. Upon request of Dynamic Ratings, Subcontractor shall have its employees execute a confidentiality agreement protecting PII. Subcontractor agrees not to appropriate such PII for its own use or to disclose such PII to third parties unless specifically authorized by Dynamic Ratings in writing. Subcontractor shall ensure that its employees will not discuss, divulge or disclose any such PII to any person or entity except those persons directly concerned with and only to the extent necessary to complete the performance of the Work. Subcontractor shall access, use and process PII and other data on behalf of Dynamic Ratings only for the purposes specified in the Contract.
w) Subcontractor shall comply with (i) NERC Reliability Standards as applicable, including without limitation, those relating to Critical Infrastructure Protection, (ii) Site owner’s security standards, and (iii) such further instructions as Dynamic Ratings may provide regarding the processing of such PII. Subcontractor shall inform Dynamic Ratings promptly if it has reason to believe that applicable law (or changes in applicable law) prevents Subcontractor from fulfilling the obligations relating to treatment of PII or other data under Dynamic Ratings security standards and/or the Contract.
x) To the extent permitted by law, Subcontractor shall notify Dynamic Ratings promptly and act only upon Dynamic Ratings instruction concerning: (a) any request for disclosure of PII or other data by law enforcement or other governmental authority; (b) any request by law enforcement or other governmental authority for information concerning the processing of PII or other data in connection with the Contract; or (c) any request received directly from an individual concerning his/her PII.
y) Subcontractor may not store PII, on computers, mobile devices, including but not limited to cellular telephones and/or personal digital assistants, servers and/or storage devices including removable media (any of which, hereinafter known as a “Computer”), unless required for the performance of Work. Any such information must be deleted from a Computer, in a manner that ensures that it cannot be accessed or read, as soon as such storage is no longer required for the performance of Work.
z) In addition to any remedy available to Dynamic Ratings under the Contract, Subcontractor acknowledges that any breach of Section 6.a or the related subsections hereof by Subcontractor or its Subcontractors may subject Subcontractor to civil and criminal penalties. Subcontractor shall include the full text of Sections 6.a and the related subsections 6.n in all appropriate subcontracts. However, including such provision in the subcontracts shall not relieve Subcontractor of its obligation to ensure compliance with the provisions of this Sections 6.n.
7. Equipment
a) All Subcontractor-furnished Equipment which is to be installed shall be new and meet the requirements of all applicable codes. Equipment that will not become a part of the permanent installation is not required to be new.
b) Subcontractor shall not substitute Equipment specified in the Contract unless authorized by Dynamic Ratings in writing. Unless substitution has been so authorized, Subcontractor shall, at its expense, remove and replace any improperly substituted Equipment.
c) Upon Dynamic Ratings request, Subcontractor shall, at its expense, submit to Dynamic Ratings samples of Subcontractor-furnished Equipment. Subcontractor must obtain Dynamic Ratings written approval before performing Work involving the use of Equipment for which samples have been requested. Approval by Dynamic Ratings shall not relieve Subcontractor from responsibility for complying with the requirements of the Contract and all applicable codes. Equipment used shall conform to the approved samples. Subcontractor shall remove and replace nonconforming Equipment at its expense.
8. Inspection and Acceptance
a) Subcontractor shall maintain an adequate inspection system and perform such inspections as will ensure that the Work performed conforms to the Contract requirements. Dynamic Ratings reserves the right to review and approve the adequacy of Subcontractor’s inspection system. Subcontractor shall provide all quality control and quality assurance program information requested by Dynamic Ratings.
b) Dynamic Ratings shall have free access to the Work for inspection purposes. Dynamic Ratings inspectors and expediters shall be admitted at all reasonable times to the shops of Subcontractor and any of its Third-Tier Subcontractors for inspection purposes. Dynamic Ratings inspection, receipt or Initial Acceptance of the Work shall not relieve Subcontractor of its obligation to comply with the terms of the Contract.
c) Each party shall bear its own expenses in performing inspections, except that (a) Dynamic Ratings may use Subcontractor’s facilities, ladders and scaffolds to perform inspections of the Work; (b) Subcontractor shall pay Dynamic Ratings expenses in re-inspecting Work which was rejected as non-conforming to the Contract requirements in an earlier inspection; (c) Subcontractor shall pay the costs of uncovering and re-covering Work for Dynamic Ratings inspection if Subcontractor failed to give Dynamic Ratings reasonable notice that the Work was ready to be covered; and (d) prior to Final Acceptance, if Dynamic Ratings requests an inspection of Work already completed which requires removing and tearing out Work, and the Work is found to be materially defective, Subcontractor shall pay the expenses of inspection and reconstruction, but if the Work is found to be in conformance with the Contract requirements, Dynamic Ratings shall pay the expenses of inspection and reconstruction.
d) Dynamic Ratings will not pay for defective work. Subcontractor shall repair or replace all defective work at its expense. Subcontractor shall promptly remove from the Site any Equipment that does not comply with the requirements of the Contract. If Dynamic Ratings Equipment has been used in any defective work, the cost of such Dynamic Ratings Equipment shall be back charged to Subcontractor.
e) Subcontractor shall, at its expense, furnish to Dynamic Ratings certificates of shop inspection as required by laws or regulations, or by the National Board of Fire Underwriters, or by any company insuring the Equipment for the benefit of Dynamic Ratings.
f) Dynamic Ratings shall have the right to take possession of or use any part of the Work. Dynamic Ratings possession or use shall not constitute Initial Acceptance or Final Acceptance of the Work.
g) Subcontractor shall make all production and shop tests at its expense. Dynamic Ratings shall have the right to have a representative present at such tests, including those at Subcontractor’s suppliers’ shops, and notice shall be given to Dynamic Ratings at least two weeks prior to any scheduled test. Subcontractor shall give Dynamic Ratings copies of certified test results promptly upon request.
h) Unless otherwise provided in the Contract, Final Acceptance by Dynamic Ratings shall be made as soon as practicable after all Work has been completed and inspected. Any part of the Work not rejected by Dynamic Ratings following final inspection shall be deemed to have achieved Final Acceptance.
9. Schedule
a) Subcontractor shall perform the Work to meet the milestone date(s) set forth in the Contract documents. Subcontractor shall not commence Work until authorized by Dynamic Ratings to do so.
b) In a format acceptable to Dynamic Ratings, Subcontractor shall develop, update, maintain and provide to Dynamic Ratings a written schedule for execution of the Work. Upon review and approval by Dynamic Ratings, this schedule shall become the Contract schedule. Updates to the Contract schedule shall be provided to Dynamic Ratings on at least a monthly basis. Updates shall depict actual progress measured against planned progress.
c) Subcontractor shall notify Dynamic Ratings within 24 hours of the first knowledge that any milestone date(s) will not be met and shall, within five (5) Business Days thereafter, submit a detailed program depicting the plans and actions being taken to regain the lost time. The notice shall not limit any other rights or remedies afforded Dynamic Ratings under the Contract or by law.
10. Shipment and Delivery
a) Subcontractor shall coordinate shipment so that Equipment arrives at the Site on schedule and during Site receiving hours. Subcontractor shall provide shipping notices to Dynamic Ratings prior to shipment of the Equipment. Dynamic Ratings shall be notified at least 48 hours in advance of the arrival of the Equipment, or as required by the Contract. Notification to Dynamic Ratings and all shipping notices shall include special unloading and storage directions and a list of equipment required to unload the Equipment.
b) Subcontractor shall provide a complete bill of materials for each separate shipment. Every part that is not preassembled shall be identified on the bill of materials.
c) Subcontractor must attach metal tags with corrosion resistant tie wire, and waterproof markings and labels, to each piece and package, making reference to the bill of materials and Contract number.
d) Dynamic Ratings reserves the right to refuse shipments that do not contain proper markings, bills of materials, or for which proper shipping notices were not received. The return and redelivery will be at Subcontractor’s expense.
e) Subcontractor shall deliver all Equipment F.O.B. Site, with freight prepaid and included in the Contract Price.
11. Title and Risk of Loss
a) Title and risk of loss shall pass to Dynamic Ratings upon Final Acceptance of the Work. Subcontractor agrees that title shall vest in Dynamic Ratings free and clear of all liens and encumbrances. If the Work is rejected as non-conforming, title and risk of loss shall remain with Subcontractor.
b) If the Work requires warranty work, title shall always remain with Dynamic Ratings, except that if the Work is replaced rather than repaired, Dynamic Ratings title shall vest in the replacement Work.
c) If any part of the Work requires warranty work at Subcontractor’s facility or any other off-Site location, risk of loss to that part of the Work shall pass to Subcontractor upon delivery by Dynamic Ratings of that part of the Work to a common carrier. Risk of loss to that part of the Work shall pass back to Dynamic Ratings upon delivery to Site, installation at the Site and successful acceptance testing of the repaired or replaced Work.
12. Terms of Payment
a) Except as otherwise provided in the Contract, the following terms of payment shall apply:
b) The Contract Price set forth in the Contract shall constitute full and complete payment for all Work.
c) Subcontractor shall submit invoices with proper documentation to Dynamic Ratings for the Work completed or for milestones achieved during the prior month. Dynamic Ratings may withhold all or any part of payment in an amount necessary to protect Dynamic Ratings from loss due to the occurrence, or imminent occurrence, of (i) Subcontractor’s breach or failure to perform in accordance with the Contract, (ii) defective Work, (iii) Subcontractor’s failure to pay any Third-Tier Subcontractor, (iv) other claims by Dynamic Ratings against Subcontractor, including indemnity claims, and (v) damages for delay or any agreed upon liquidated damages.
d) Dynamic Ratings shall pay each properly submitted and accepted invoice within forty-five (45) days of Final Acceptance of the Work.
e) Each invoice shall contain a statement that all bills for material and labor relating to the Work have been paid in full by Subcontractor, and there are no unpaid bills for which a lien could be filed. If requested by Dynamic Ratings, Subcontractor shall provide evidence of such payments. The final invoice for the Work shall be accompanied by a satisfactorily completed Affidavit of Completion in the form attached as Exhibit 1. Payment of the final invoice constitutes a full and final release of Dynamic Ratings from all claims, damages, liabilities and obligations under the Contract.
f) Subcontractor shall promptly pay all of its Third-Tier Subcontractors.
13. Changes in Work
a) A Change Order is a written order issued in accordance with this Article documenting an addition to, deletion from, or other modification to the Work, including a change in the scope of Work, the Contract Price, the payment schedule, the completion dates, or the schedule for the Work.
b) Dynamic Ratings may issue a Change Order: (i) at Dynamic Ratings option, or (ii) if requested by Subcontractor due to the occurrence of an event that entitles Subcontractor to a Change Order as determined by Dynamic Ratings.
c) If Dynamic Ratings issues a Change Order, Subcontractor shall perform the changed Work in accordance with the terms of the Contract and the issued Change Order.
d) No order, statement or other conduct of Dynamic Ratings shall be treated as a change in Work until such change is authorized in writing by Dynamic Ratings.
e) Subcontractor shall not be entitled to a Change Order for conditions such as, but not limited to, (i) work which is of such a nature as to be normally included in the Work or is reasonably inferable from the Contract; (ii) any errors, omissions, non-performance, negligence, deficiencies or improper or defective work on the part of Subcontractor (including miscalculations, incorrect estimates, or other errors in Subcontractor’s proposal for the Work); (iii) changes relating to refinement, minor correction and detailing of the Work or any part of the Contract; or (iv) other unallowable claims such as cost impacts not due to Dynamic Ratings and cumulative impact claims.
f) With respect to Subcontractor claims for additional compensation, Dynamic Ratings shall pay only incremental Direct Costs associated with the proposed changes and only to the extent that Subcontractor can demonstrate that the changes increased its costs of performance. Any claims for additional compensation based on a change to the Work must be material in nature, and Subcontractor must provide full documentation supporting all elements of such claims. For a reduction in the scope of Work or a change which reduces Subcontractor’s costs, the Contract Price shall be adjusted downward. The payment for changes to the Work shall be complete compensation to Subcontractor for performing such changes, including any schedule or cost impacts on the Work.
g) If Subcontractor and Dynamic Ratings disagree on whether any work is within the scope of Work and such work must be completed to ensure timely progress, Dynamic Ratings will issue a disputed Change Order to cover the disputed work. Subcontractor shall diligently proceed with the disputed work. By noon on the workday following performance of the disputed work, Subcontractor shall submit to Dynamic Ratings for review timesheets itemizing all labor and equipment hours expended on the disputed work and an itemized listing of Subcontractor furnished materials. Such review is not an admission of liability by Dynamic Ratings. Prior to Final Acceptance, each disputed Change Order will be resolved to the mutual agreement of the parties.
14. Backcharges
a) Dynamic Ratings may impose back charges against Subcontractor or deduct back charges from monies owed to Subcontractor for performance or reperformance by Dynamic Ratings or others of Work, including but not limited to, costs associated with defective work, nonperformance by Subcontractor, termination for cause, clean-up and disposal of debris, damages to Dynamic Ratings tools and equipment and warranty repairs. Subcontractor will be responsible for the cost of such performance or reperformance plus a fifteen percent (15%) administrative charge.
15. Taxes
a) The Contract Price shall include, and Subcontractor shall pay, all taxes and assessments for unemployment insurance, workers’ compensation, social security and disability benefits, and other taxes which are based upon the compensation paid to persons employed by Subcontractor or its Subcontractors for the performance of any Work under the Contract.
b) Except as provided below, the Contract Price shall include all applicable foreign, federal, state and local taxes payable by Subcontractor with respect to the Contract.
c) Subcontractor Purchases. If Dynamic Ratings specifies that tangible personal property to be incorporated into real property as defined for sales and use tax purposes or taxable services to be purchased by Subcontractor from Subcontractors qualify for exemption from sales or use taxes, Subcontractor shall not include sales or use taxes on such exempt tangible personal property or services in the Contract Price. Unless otherwise specified: a) consumable materials and supplies or Subcontractor’s tools and equipment that are not incorporated into the Work or the overall project are not eligible for exemption and the Contract Price shall include, and Subcontractor shall pay, any sales or use taxes on such items; and b) Subcontractor will use its own properly-executed exemption or resale certificate, and not Dynamic Ratings direct pay permit, to make exempt purchases of tangible personal property or services from Subcontractors.
d) Dynamic Ratings Purchases from Subcontractor. With respect to any Dynamic Ratings purchases from Subcontractor of tangible personal property not incorporated into real property as defined for sales and use tax purposes or taxable services, Dynamic Ratings shall provide to Subcontractor its direct pay permit (if Dynamic Ratings has been issued a direct pay permit) or an appropriate exemption certificate required to relieve the Subcontractor of its responsibility to collect sales or use tax from the Dynamic Ratings. If Dynamic Ratings provides Subcontractor such direct pay permit or exemption certificate, sales or use taxes on Dynamic Ratings purchases from Subcontractor of tangible personal property or taxable services shall not be collected from Dynamic Ratings or included in the Contract Price. Unless otherwise approved or directed by Dynamic Ratings in writing, Subcontractor shall not use Dynamic Ratings direct pay permit to make exempt purchases of tangible personal property or taxable services from Subcontractors.
e) Subcontractor Cooperation. Subcontractor shall take all steps reasonably necessary to ensure that Subcontractor’s purchases from Third-Tier Subcontractors of items of tangible personal property or services are exempt from sales and use tax pursuant to any applicable exemption pursuant to the law of any U.S. jurisdiction or its political subdivisions.
16. Insurance
a) Subcontractor shall, at its sole expense, procure and maintain, and shall cause its Third-Tier Subcontractors to procure and maintain, throughout the term of the Contract except as set forth in Section 16.p, the following types of insurance with the following, minimum limits: See Exhibit 1 for sample Certificate of Insurance (COI).
b) Workers’ compensation insurance in accordance with all jurisdictions where Subcontractor has operations including where the Work is to be performed. If Subcontractor is a non-subscriber to workers’ compensation, evidence of coverage equivalent to workers’ compensation must be provided.
c) Employer’s liability in an amount not less than $1,000,000.
d) Business automobile insurance covering all owned, non-owned and hired autos in an amount not less than $5,000,000 per occurrence.
e) Commercial general liability insurance covering claims of bodily injury and property damage in an amount not less than $5,000,000 per occurrence.
f) Aircraft liability insurance with a combined limit of not less than $10,000,000. Such insurance shall be required only if the Subcontractor or its Subcontractors shall utilize an aircraft in the performance of the Work.
g) If Subcontractor (or any of its Third-Tier Subcontractors) are engaged in operations which use marine vessels or floating equipment, or which are subject to maritime jurisdiction, the following insurance shall be required: Marine Liability insurance (including Jones Act and maritime employer’s liability if operations are subject to federal jurisdiction) and pollution liability (under terms equivalent to current W.Q.I.S. policy provisions if operations are subject to federal jurisdiction) in amounts not less than $10,000,000 per occurrence.
h) Professional liability insurance and/or errors and omissions insurance in an amount not less than $5,000,000. Such insurance shall be required only if the Work includes professional liability exposures.
i) “All risk” property insurance covering the full replacement cost of Subcontractor’s personal property.
j) To the extent permitted by law, Subcontractor shall waive, and shall cause each of its insurers to waive, any and all rights of recovery, by subrogation or otherwise, against Dynamic Ratings and its affiliates, officers, directors, employees, agents and assigns of any type. Each of Subcontractor’s insurance policies shall be primary to and non-contributory with any insurance or self-insurance of Dynamic Ratings.
k) The commercial general liability, the business automobile, and (if applicable) the aircraft liability and Marine Liability insurance shall include Dynamic Ratings as an additional insured with respect to Dynamic Ratings liability arising out of the operations of Subcontractor. Such coverage shall also include blanket contractual coverage and contain no exclusion for explosion, collapse, or underground property damage (XCU coverage).
l) The insurance required by this Article is in addition to and separate from any other obligations contained in the Contract.
m) Products and/or completed operations coverage shall be maintained for a period of five (5) years after the completion of the Work. If any of the policies indicated above are placed on a “claims-made” basis, such coverage shall be maintained for a period of not less than five (5) years following the completion of the Work.
n) Any deductibles or retentions on any of the policies required herein shall be the sole responsibility of the Subcontractor.
o) The above referenced limit requirements may be met by any combination of umbrella or excess and primary policies so long as the total limit of insurance requirement is met. The required coverages referred to herein shall in no way affect, nor are they intended as a limitation of, Subcontractor’s liability with respect to its performance of the Work. The limits of insurance indicated herein are minimum requirements and are in no way intended to limit Subcontractor’s liability.
p) In all cases where Subcontractor’s employees (defined to include Subcontractor’s direct, borrowed, special, or statutory employees) are covered by the Louisiana Worker’s Compensation Act, La. Rev. Stat. Ann. 23:1021 et seq., Dynamic Ratings and Subcontractor agree that pursuant to Section 23:1061 (A) (1) all Work performed by Subcontractor and its employees under the terms and conditions of the Contract is an integral part of Dynamic Ratings operations and is essential to Dynamic Ratings ability to generate its goods, products and services. Additionally, Dynamic Ratings and Subcontractor agree that for purposes of Section 23:1061 (A) (3) Dynamic Ratings is the principal or statutory employer of Subcontractor’s employees. Irrespective of Dynamic Ratings status as the statutory employer or special employer of Subcontractor’s employees, pursuant to Section 23:1031 (C), Subcontractor shall remain primarily responsible for the payment of Louisiana Worker’s Compensation benefits to its employees, shall indemnify Dynamic Ratings from any and all claims of Subcontractor’s employees or its Subcontractor’s employees and shall not be entitled to seek contribution for any such payments from Dynamic Ratings.
q) Upon inception of the Contract and prior to the commencement of Work, Subcontractor shall provide Dynamic Ratings with an acceptable certificate of insurance evidencing the insurance required under Article 17. Subcontractor will not be permitted to bring its employees, materials or equipment onto the Site until Dynamic Ratings receives such evidence of insurance. Subcontractor also must provide an updated certificate of insurance at any time during the contract term upon Dynamic Ratings request. Subcontractor shall immediately notify Dynamic Ratings of cancellation or any material changes in the insurance policies required herein. If such insurance policies are subject to any exceptions to the terms specified herein, such exceptions shall be explained in full in such certificates. Dynamic Ratings may, at its discretion, require Consultant to obtain insurance policies that are not subject to non-standard exceptions.
17. Indemnification
a) The laws of the state where the Work giving rise to the claim is performed shall apply to this Article 17.0.
b) TO THE EXTENT PERMITTED BY LAW, SUBCONTRACTOR SHALL INDEMNIFY, DEFEND AT ITS EXPENSE, AND SAVE Dynamic Ratings HARMLESS FROM, ANY LIABILITIES, COSTS AND CLAIMS, INCLUDING JUDGMENTS RENDERED AGAINST, AND FINES AND PENALTIES IMPOSED UPON, Dynamic Ratings AND REASONABLE ATTORNEYS’ FEES AND ALL OTHER COSTS OF LITIGATION (COLLECTIVELY, “LIABILITIES”), ARISING OUT OF THE CONTRACT, INCLUDING INJURIES, DISEASE OR DEATH TO PERSONS, OR DAMAGE TO PROPERTY, AND ENVIRONMENTAL CLAIMS AND LIABILITIES, CAUSED BY SUBCONTRACTOR, ITS EMPLOYEES, AGENTS OR THIRD-TIER SUBCONTRACTORS, OR IN ANY WAY ATTRIBUTABLE TO THE PERFORMANCE OF THE CONTRACT, EXCEPT THAT SUBCONTRACTOR’S OBLIGATION TO INDEMNIFY Dynamic Ratings SHALL NOT APPLY TO ANY LIABILITIES ARISING FROM Dynamic Ratings SOLE NEGLIGENCE. TO THE EXTENT PROVIDED IN THIS SECTION, IN STATES OTHER THAN OHIO, MICHIGAN, KENTUCKY, TENNESSEE, MISSOURI, OKLAHOMA, VIRGINIA, AND WEST VIRGINIA, SUBCONTRACTOR AGREES TO INDEMNIFY Dynamic Ratings FOR LIABILITIES ARISING FROM Dynamic Ratings ACTS AND OMISSIONS, NEGLIGENT OR OTHERWISE. Dynamic Ratings SHALL HAVE THE RIGHT TO SELECT ITS OWN COUNSEL AND TO HAVE COUNSEL SEPARATE FROM Subcontractor, all at Subcontractor’s expense.
c) WITH RESPECT TO CLAIMS AGAINST Dynamic Ratings BY SUBCONTRACTOR’S EMPLOYEES, SUBCONTRACTOR UNDERSTANDS AND AGREES THAT THIS INDEMNIFICATION OBLIGATION SHALL NOT BE LIMITED IN ANY WAY BY, AND SUBCONTRACTOR EXPRESSLY WAIVES, ITS IMMUNITY AS A COMPLYING EMPLOYER UNDER ANY APPLICABLE WORKERS’ COMPENSATION LAW, BUT ONLY TO THE EXTENT THAT SUCH IMMUNITY WOULD BAR OR AFFECT RECOVERY UNDER OR ENFORCEMENT OF THIS INDEMNIFICATION OBLIGATION. With respect to the State of Ohio, this waiver applies to Section 35, Article II of the Ohio Constitution and Ohio Rev. Code Section 4123.74.
d) SUBCONTRACTOR SHALL BE LIABLE FOR REASONABLE ATTORNEYS’ FEES AND ALL COSTS OF LITIGATION ASSOCIATED WITH ENFORCEMENT OF ALL INDEMNITY OBLIGATIONS SET FORTH IN THE CONTRACT.
18. Limitation of Liability
a) Except as expressly provided herein, neither party shall be liable to the other for any incidental, indirect, special, punitive or consequential damages. Subcontractor must bring any cause of action arising under the Contract within one year from the time the cause of action accrues.
19. Liens
a) To the extent permitted by law, Subcontractor shall not file or permit to be filed any lien with respect to the Work and hereby expressly waives any right to file or cause to be filed a lien. Subcontractor, in its subcontracts, shall require all Third-Tier Subcontractors to expressly waive the right to file any liens against Site Owner’s property, and, if requested, provide Dynamic Ratings with copies of such waivers.
b) In the event any claim is asserted or any lien filed against Site owner or its property, or notice of lien is provided to Dynamic Ratings or Site owner in violation of this provision, further payment to Subcontractor shall not become due under the Contract until the claim is satisfied or the lien released without cost to Dynamic Ratings and Subcontractor shall provide Dynamic Ratings with evidence of payment relating to such claim or lien. If Subcontractor fails to settle any claim or secure the release of any lien, Dynamic Ratings may take whatever steps it deems necessary to settle the claim or release the lien, including bonding off the lien. Dynamic Ratings may deduct its costs and expenses for settling any claim or securing the release of any lien filed by Subcontractor or its Third-Tier Subcontractors from any money due or to become due to Subcontractor under the Contract. If final payment has been made, Subcontractor shall reimburse to Dynamic Ratings its costs to settle any claim or secure the release of any lien arising out of the Contract.
20. Intellectual Property
a) Subcontractor warrants that its performance of the Work will not infringe upon or violate any trademarks, patents, copyrights, trade secrets or other third-party property rights. If the performance of Work is held in any action to constitute infringement, or the use of the Work is enjoined, Subcontractor, at its expense, shall procure the right to continue use of the Work, or replace the Work with non-infringing materials or methods satisfactory to Dynamic Ratings, or modify the Work in a manner satisfactory to Dynamic Ratings so that the Work becomes non-infringing. Subcontractor agrees to indemnify and save Dynamic Ratings harmless from and against any liability or damages, including attorneys’ fees, arising out of any alleged infringement or violation.
b) All inventions, discoveries, documents, works of authorship, methods, and the derivative works thereof, resulting from the Work, including patents, patent applications, copyrights, trade secrets and other intellectual property (collectively “Intellectual Property”), shall be the sole and exclusive property of Dynamic Ratings. Subcontractor shall promptly inform Dynamic Ratings of the development of any such Intellectual Property and does hereby assign and transfer the entire right, title and interest, together with all rights of priority, in and to such Intellectual Property to Dynamic Ratings. Subcontractor shall promptly cooperate with Dynamic Ratings in signing any additional documentation necessary to assign and perfect ownership of such Intellectual Property in Dynamic Ratings or to allow Dynamic Ratings to register its property rights therein. Subcontractor warrants that it has obtained written agreements from its employees and agents as necessary to effectuate the purpose of this Section. The Intellectual Property assigned and transferred to Dynamic Ratings shall be the Confidential Information of Dynamic Ratings.
c) Subcontractor grants Dynamic Ratings a nonexclusive, nonrevocable, perpetual, fully paid license to utilize Subcontractor’s intellectual property existing separate from the Contract, including inventions, discoveries, works or authorship, methods, and trade secrets, regardless of whether such are the subject of patents, copyrights or other intellectual property protection, to the extent necessary for Dynamic Ratings to achieve the full benefit of the Work.
d) Subcontractor shall not use Site owner’s name or logo in marketing, endorsements, or other business purposes without prior written consent from Site owner.
21. Drawings and Data
a) Subcontractor shall furnish for Dynamic Ratings review, prior to commencement of Equipment manufacture or fabrication, general and detailed drawings of the Equipment in the format requested. Such drawings shall be certified as to accuracy and completeness and shall show information adequate to enable Dynamic Ratings to design and provide suitable clearances. If required by the Contract or any code, law or agency, Subcontractor will provide professional engineer or architect sealed drawings and reports for the state where the Equipment is to be finally installed. Figures shall take precedence in all cases over scaled measurements on drawings. Where obvious discrepancies exist, Subcontractor shall consult with and follow the instructions of Dynamic Ratings. Dynamic Ratings approval of Subcontractor’s drawings shall not relieve Subcontractor of its obligation to comply with the Contract requirements.
b) All written data, such as drawings, plans, reports, designs and specifications, prepared by Subcontractor for Dynamic Ratings during the performance of Work shall become the property of Dynamic Ratings. Such data, together with all data furnished by Dynamic Ratings and lent to Subcontractor for return, shall be delivered to Dynamic Ratings upon request, or upon completion of the Work or termination of the Contract. For clarification purposes, Dynamic Ratings shall have the unrestricted right to use, release, disclose, copy and reproduce such data. Subcontractor shall cooperate with Dynamic Ratings by executing such documents as are necessary to assign and perfect ownership in Subcontractor provided data to Dynamic Ratings.
22. Confidentiality
a) “Confidential Information” means any confidential or proprietary information, whether written, oral, or visual, whether or not it constitutes a trade secret under applicable law. “Confidential Information” includes, but is not limited to, business plans and methods; customer information; engineering, operating and technical data; and the dates of Dynamic Ratings outage schedule, information concerning the Work, and Dynamic Ratings activities. “Confidential Information” does not include information that (a) has become part of the public domain other than by acts or omissions of the recipient; (b) has been furnished or made known to the recipient by a third person as a matter of legal right and without restriction on use; (c) was in the recipient’s possession prior to disclosure by the disclosing party without restriction on use; or (d) is independently developed by the recipient without access to the Confidential Information.
b) Subject to Section 22.e, each party agrees (a) to protect the Confidential Information of the other with at least the same degree of care used to protect its own Confidential Information; (b) not to use (except for the purpose described herein), publish or disclose to third parties such Confidential Information; and (c) upon the request of the disclosing party, to promptly deliver to the disclosing party all written copies of its Confidential Information. Notwithstanding the foregoing, a recipient shall be entitled to disclose Confidential Information to its officers, employees, affiliates (including any joint ventures of which Dynamic Ratings or any of its affiliates are a member and the other members of such joint ventures), agents, lenders, attorneys and other advisors (collectively, “Representatives”), provided that the Representatives shall be informed of the confidentiality obligations provided herein.
c) If either party is required pursuant to applicable law or otherwise becomes legally compelled to disclose any of the Confidential Information, such party shall promptly advise the disclosing party in order that the disclosing party may seek a protective order or such other remedy as the disclosing party may consider appropriate in the circumstances. In any event, the compelled party may disclose only that portion of the Confidential Information which such party is legally required to disclose in the judgment of the party’s legal counsel without any liability to the disclosing party hereunder and such disclosure shall not be a breach of this Section.
d) Subcontractor shall require its Subcontractors, if any, to expressly comply with the confidentiality provisions as set forth herein.
e) All documents prepared by Subcontractor for Dynamic Ratings during the performance of Work that incorporate, in whole or in part, information owned or provided by Dynamic Ratings shall not be marked or designated in any way as the confidential or proprietary information of Subcontractor without also stating that Dynamic Ratings has rights in such documents. Dynamic Ratings shall have the right to question the designation of Confidential Information by Subcontractor and Subcontractor agrees to provide Dynamic Ratings with reasonable cooperation in explaining such designation. Subcontractor agrees that Dynamic Ratings acceptance of documents containing the Confidential Information of Subcontractor shall not be construed as a restriction on Dynamic Ratings rights to use, release, disclose, distribute, copy or reproduce the documents.
23. Default
a) The occurrence of any of the following shall constitute an “Event of Default”:
b) Subcontractor files a petition in bankruptcy, or if its creditors file an involuntary petition in bankruptcy, or if it makes a general assignment for the benefit of its creditors, or if a receiver is appointed on account of its insolvency.
c) Subcontractor (a) fails to maintain the schedule set forth in the Contract, or (b) fails to promptly pay Subcontractors for material or labor, or (c) commits repeated or substantial violations of laws, rules, regulations or policies, or (d) fails to perform in accordance with the Contract, and Subcontractor fails to take corrective action or submit an acceptable plan within two (2) Business Days after the receipt of a notice of non-conformance from Dynamic Ratings.
d) Upon an Event of Default, Dynamic Ratings may take any or all of the following actions without affecting the Contract Price or schedule:
i. Dynamic Ratings may direct Subcontractor to cease performance on all or part of the Contract until satisfactory corrective action has been taken;
ii. Dynamic Ratings may have others take corrective action necessary to achieve compliance with the Contract. Dynamic Ratings may deduct the cost of such corrective action by others from any monies due to Subcontractor. Corrective action by others shall be taken when, in the judgment of Dynamic Ratings, the noncompliance threatens safety, unreasonably interferes with or delays the work of others, or otherwise creates a situation the resolution of which cannot be delayed without adversely impacting quality, cost or timely completion;
iii. Dynamic Ratings may pursue damages for delay under the terms of Article 25.0;
iv. Dynamic Ratings may suspend the Contract under Article 25.0; and/or
v. Dynamic Ratings may terminate the Contract under the terms of Section 27.a.
vi. Each of Dynamic Ratings rights set forth above shall be cumulative and additional to any other rights or remedies provide in law or equity or otherwise.
24. Damages for Delay
a) Subcontractor shall be liable for any direct damages incurred by Dynamic Ratings arising out of Subcontractor’s failure to perform on time.
b) In lieu of Section 24.a, if the parties have agreed to liquidate the amount of direct damages resulting from Subcontractor’s delay, the parties agree that such damages which might be incurred by Dynamic Ratings as a result of Subcontractor’s delay in performance are uncertain and would be difficult to calculate. The parties agree that the liquidated damages contained in the Contract would be reasonable and fair compensation for late performance. Subcontractor commits to pay, and Dynamic Ratings agrees to accept such sum as liquidated damages and not as a penalty in the event of late performance.
25. Force Majeure
a) Neither party shall be in breach of the Contract to the extent that any delay or default in performance is due to a Force Majeure Event. The term, “Force Majeure Event”, shall mean any cause beyond the reasonable control of the delayed or defaulting party, including, but not limited to, acts of God including unusually adverse weather, fire, and epidemic; acts of public enemy including war, acts of terrorism, riot, and civil disturbance; and national labor strikes, which by exercise of due foresight such party could not have been expected to avoid or overcome. Subcontractor’s inability to obtain adequate and enough labor in order to maintain progress of the Work shall not constitute a Force Majeure Event. No delay in performance resulting from a Force Majeure Event shall result in any liability on the part of Dynamic Ratings. Notwithstanding the preceding sentence, in the event of a delay caused by any act or failure to act on the part of Dynamic Ratings, Subcontractor’s sole remedy shall be as set forth in Article 12.0.
b) The delaying party shall immediately notify the other party of the beginning of a delaying event and shall confirm the notice in writing within ten (10) Business Days of the beginning of the event. The notice shall contain a detailed account of the delay, including the cause of the delay, an estimate of the duration of the delay, an estimate of the delay’s impact to the schedule, and the plan to mitigate the effects of the delay.
c) If Subcontractor is the delaying party, and the delay is a Force Majeure Event as defined in Section 25.a, Dynamic Ratings shall grant Subcontractor an extension of the time for performance, to be mutually agreed upon by Subcontractor and Dynamic Ratings. The extension of time granted as a result of a Force Majeure Event shall in no case exceed the length of the delay and such extension may be withheld or reduced to the extent Subcontractor does not provide notice in accordance with Section 25.a. If Dynamic Ratings so requests, Subcontractor shall expedite its schedule to mitigate the effects of the excusable delay. Dynamic Ratings shall pay incremental, Direct Costs incurred by Subcontractor for expediting at Dynamic Rating’s request.
26. Suspension
a) Dynamic Ratings may at any time suspend all or any part of the Work. Dynamic Ratings shall provide Subcontractor written notice verifying the suspension date. Immediately upon receipt of the suspension notice, Subcontractor shall take the necessary actions to comply with the suspension notice.
b) Dynamic Ratings shall pay Subcontractor in accordance with the terms of payment set forth in the Contract for the Work completed prior to the time of suspension and for the direct, reasonable costs that result from Subcontractor’s compliance with the suspension notice.
c) Dynamic Ratings may, at any time during the suspension period, either terminate the Contract in accordance with Section 28.b, or authorize the Work or any portion thereof to be restarted. Dynamic Ratings shall pay Subcontractor the direct, reasonable costs associated with the restart of the Work and shall resume payments to Subcontractor in accordance with the terms of payment under the Contract thirty (30) days after the restart of Work.
d) The schedule shall be adjusted to provide for a reasonable extension of time for Subcontractor’s performance.
27. Termination
a) Termination for Cause
i. Upon an Event of Default, Dynamic Ratings may terminate the Contract upon written notice to Subcontractor.
ii. In the event of such termination, Subcontractor shall immediately prepare and submit to Dynamic Ratings an itemization of the Work completed by Subcontractor. Dynamic Ratings may require Subcontractor to leave the Site. Dynamic Ratings may take over such Work and complete it, or have the Work completed by others. Dynamic Ratings may take possession of and utilize in completing the Work Subcontractor’s materials, Equipment to be installed, supplies, tools and equipment at the Site.
iii. Subcontractor shall not be entitled to further payment until all the Work is completed in its entirety and Final Acceptance has been achieved. If the cost of completion exceeds the unpaid balance under the Contract, Subcontractor shall pay the difference to Dynamic Ratings within thirty (30) calendar days of demand.
iv. Subcontractor shall not be entitled to further payment until all the Work is completed in its entirety and Final Acceptance has been achieved. If the cost of completion exceeds the unpaid balance under the Contract, Subcontractor shall pay the difference to Dynamic Ratings within thirty (30) calendar days of demand.
v. In the event that a court determines that the termination was not properly a termination for cause, pursuant to Section 28.a, Subcontractor’s remedy shall be limited to the payments permitted in accordance with Section 28.b.
a) Termination for Convenience
i. Dynamic Ratings may terminate the Contract, in whole or in part, for its convenience. Dynamic Ratings will give Subcontractor written notice of termination specifying the extent to which the Contract is terminated and the date, immediately or otherwise, on which termination becomes effective.
ii. Upon termination for convenience, Subcontractor will comply with instructions in the notice of termination regarding delivery to Dynamic Ratings of all Work in progress and all completed Work, which shall become the property of Dynamic Ratings upon delivery.
iii. In the event of such termination, Subcontractor shall receive payment, including the retained percentage, for the Work satisfactorily performed up to the time of such termination. In addition, Dynamic Ratings shall reimburse Subcontractor for incremental, Direct Costs resulting from the termination, if compensation was not otherwise made for such costs. Final payment shall be made upon the parties’ agreement of the amount of the final invoice and Dynamic Ratings receipt of an Affidavit of Completion in the form of Exhibit 1. Dynamic Ratings shall not be responsible for Subcontractor’s lost profit on the terminated portion of the Contract.
28. Materials and Workmanship Warranty
a) Beginning upon Final Acceptance and for a period of one year thereafter, or for such period as may be specified elsewhere in the Contract, Subcontractor warrants that all Subcontractor-furnished materials and workmanship shall be free of any and all defects and shall be in conformity with the requirements of the Contract.
b) Subject to the provisions of Section 28.c, in the event that the material or workmanship does not comply with the warranty, Subcontractor shall, at no cost to Dynamic Ratings, promptly repair or replace such nonconforming material or workmanship with as little disruption to Dynamic Ratings operations as practicable. Subcontractor shall be responsible for the total cost of correcting any defects, including but not limited to, the costs of materials, labor, any necessary equipment removal, disassembly, shipping, reinstallation and retesting of the installation. Dynamic Ratings shall give Subcontractor notice of observed defects with reasonable promptness. If nonconforming material or workmanship causes an outage or other delay of operations, Subcontractor shall make the repair or replacement on an overtime, maximum effort basis, at Subcontractor’s expense.
c) If Dynamic Ratings directs Subcontractor to repair or replace any defect and Subcontractor fails to do so within a reasonable time, or if an emergency exists rendering it impracticable for Subcontractor to perform the repair or replacement, Dynamic Ratings may make or cause to be made such repair or replacement without affecting the validity of the warranty. Dynamic Ratings cost for making the repair or replacement shall be deducted from the Contract Price or any unpaid portion thereof. If the unpaid portion of the Contract Price is insufficient to cover such cost, Subcontractor shall reimburse Dynamic Ratings.
d) Dynamic Ratings must approve any proposed correction or alteration by Subcontractor of the materials or workmanship, or parts thereof, made at any time or at any location, before such correction or alteration is undertaken. Approval by Dynamic Ratings shall not relieve Subcontractor from responsibility for complying with the requirements of the Contract and all applicable codes.
e) Any materials or workmanship which are repaired or replaced pursuant to this Article shall be warranted for a period of one year from the date of Final Acceptance of such repair or replacement, or for the remainder of the original warranty period, whichever is longer.
f) Subcontractor shall obtain, for the benefit of Dynamic Ratings, all available warranties from Subcontractors, suppliers and vendors of Subcontractor. Such warranties shall be in addition to the warranties set forth in this Article. If such warranties are in written form, Subcontractor shall provide Dynamic Ratings with the original warranties.
29. Reporting of Complaints
a) Subcontractor shall immediately report to Dynamic Ratings, in accordance with Article 32.0, the complete details of all complaints, including complaints received from governmental authorities, Subcontractors, laborers, other third parties or members of the public.
30. Retention and Examination of Information, Books and Records
a) Dynamic Ratings reserves the right to audit records necessary to permit evaluation and verification of claims submitted, and Subcontractor’s compliance, in the performance of the Contract and its dealings with Dynamic Ratings, with (a) the Contract requirements and (b) Dynamic Ratings Corporate Code of Conduct governing business ethics.
b) Subcontractor shall cooperate with Dynamic Ratings and provide Dynamic Ratings with information and records (“information”) pertaining to the Work as requested by governmental agencies, Dynamic Ratings, or courts of law.
c) Subcontractor shall retain for a period of three (3) years after Contract termination or expiration all information relating to the Work. Dynamic Ratings may audit and copy such information at Subcontractor’s premises during regular business hours. If requested by Dynamic Ratings, Subcontractor shall submit to Dynamic Ratings a copy of each of its subcontracts. Subcontractor shall include in its subcontracts a provision granting Dynamic Ratings the rights against Subcontractors contained in this Article 30.0.
31. Compliance with Laws
a) Subcontractor warrants that all materials and Equipment supplied and all Work performed will comply with, and be manufactured, priced, sold and labeled in compliance with all applicable federal, state and local laws, rules, regulations, orders and ordinances, including, without limitation, environmental protection, energy, safety and health, and labor laws and regulations and applicable industry codes and standards.
b) Unless exempted, Subcontractor shall abide by the requirements of 41 C.F.R. § 60-1.4(a)(7), 41 C.F.R. § 60-300.5(a), and 41 C.F.R. § 60-741.5(a). These regulations prohibit discrimination against minorities, females, qualified protected veterans, and qualified individuals on the basis of disability and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment minorities, females, qualified protected veterans, and qualified individuals with disabilities. Subcontractor represents that it does not, and shall not for the term of the Contract, provide or maintain for its employees’ facilities that are segregated on the basis of race, color, religion, sex, national origin, veteran status or disability status. Subcontractor represents that it will not assign its employees to perform any work related to the Contract at a location where facilities are segregated based on race, color, religion, sex, national origin, veteran status or disability status. Subcontractor agrees that it will not enter into any agreement to obtain goods or services relating to the Contract with any entity that provides, maintains or assigns its employees to work at locations where facilities are segregated on the basis of race, color, religion, sex or national origin. As used herein, “facility” means waiting rooms; work areas; restaurants and other eating areas; time clocks; locker rooms and other storage or sleeping areas, except as necessary to assure privacy between male and female employees; parking lots, drinking fountains; recreation or entertainment areas; and transportation. If not otherwise exempted by Title 48 and to the extent applicable, Subcontractor will comply with 48 CFR §52.219-8, Utilization of Small, Small Disadvantaged, and Women-Owned Small Business Concerns, and 48 CFR §52.219-9, Small, Small Disadvantaged, and Women-Owned Small Business Subcontracting Plan. If not otherwise exempted by 41 CFR §60-1.5, Subcontractor represents that it will file all reports or other required information specified in 41 CFR §60-1.7. Subcontractor shall also abide by the requirements of 29 CFR Part 471, Appendix A to Subpart A, which is incorporated by reference, as applicable.
c) Subcontractor shall indemnify and save Dynamic Ratings harmless from any and all costs or expenses arising out of any violations of such laws, ordinances and regulations.
32. Permits and Licenses
a) Subcontractor shall obtain all permits and licenses required by any regulatory authority for the performance of any portion of the Work, except that Site owner shall obtain permits and licenses for all structures which are to become a permanent part of the Site. Before starting Work, Subcontractor shall submit to Dynamic Ratings a copy of all permits and licenses required by any such regulatory authority.
b) Subcontractor shall indemnify and save Dynamic Ratings harmless from any and all costs or expenses arising out of the failure of Subcontractor to obtain such permits and licenses.
33. Notices
a) Each party shall designate in writing a representative to receive any and all notices required under the Contract. Notices shall be in writing and shall be given to the representative designated to receive them, either by personal delivery, certified mail, facsimile, e-mail (with confirmation of receipt) or any similar means, properly addressed to such representative. All notices shall be effective upon receipt, or upon such later date following receipt as set forth in the notice. Either party may, by written notice to the other, change the representative or the address to which such notices are to be sent.
34. Severability
a) In the event that any of the provisions, or portions thereof, of the Contract are held to be unenforceable or invalid by any court, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected.
35. Waiver
a) Either party’s waiver of any breach of the Contract shall not be deemed to be a waiver of any other breach of the same or a different term of the Contract.
36. Non-Disclosure
a) Except as required by law, regulation, or judicial or administrative order, neither party shall disclose the terms of the Contract without the consent of the other party. Notwithstanding the foregoing, Dynamic Ratings may disclose the terms of the Contract without the consent of Subcontractor (a) to any of its affiliated companies (including any joint ventures of which Dynamic Ratings or any of its affiliates are a member and the other members of such joint ventures); and (b) to any prospective transferee or purchaser of assets of Dynamic Ratings or any of affiliates.
37. Headings
a) Headings are provided for the convenience of the parties and shall not affect the interpretation of any provision.
38. Affiliated Companies
a) Any indemnification of Dynamic Ratings or any limitation of Dynamic Ratings or Subcontractor’s liability under the Contract shall to the same extent apply to Dynamic Ratings or Subcontractor’s directors, officers, employees, agents, and affiliated companies, including any directors, officers, employees and agents thereof.
b) The affiliated companies (including any joint ventures of which Dynamic Ratings or any of its affiliates are a member and the other members of such joint ventures) of Dynamic Ratings are severally and not jointly liable for obligations arising hereunder.
39. Applicable Laws and Jurisdiction
a) Except for Article 17.0, the rights and obligations of the parties arising out of the Contract shall be governed in all respects by the laws of the State of Wisconsin, excluding any conflict-of-law rules. Any reference herein to the laws of other states is made only to the extent that the laws of that state might apply, notwithstanding the intent of the parties that the laws of the State of Wisconsin should apply.
b) Subcontractor agrees that all actions and proceedings brought by Dynamic Ratings against Subcontractor may be litigated in courts located in the State of Wisconsin or the state where work was performed. Subcontractor agrees that such courts are convenient forums and irrevocably submits to the personal jurisdiction of such courts. Subcontractor waives personal service of process and consents to service of process by certified or registered mail at the address designated for receiving notices under the Contract.
40. Entire Agreement
a) The Contract constitutes the entire agreement between the parties and supersedes all previous and collateral agreements or understandings with respect to the subject matter of the Contract. No waiver, alteration, amendment or modification of any of the provisions of the Contract shall be binding unless in writing and signed by duly authorized representatives of the parties.
41. Binding Effect; No Third-Party Beneficiaries
a) Subject to the restrictions on assignment in Section 5.a, the Contract shall be binding upon and shall inure to the benefit of the parties of their respective successors and permitted assigns.
b) No provision of the Contract is intended or shall be construed to be for the benefit of third party other than as set forth in Article 36.0.
42. Execution; Counterparts; Electronic Signatures
a) The Contract shall not be binding or effective until properly executed by each of the parties hereto. The Contract may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which, taken together, shall constitute but one and the same Contract, which may be sufficiently evidenced by one counterpart.
b) Each party agrees that any electronic signatures, whether digital or encrypted, of the parties included in this Contract are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.
43. Survival
a) All of the terms of the Contract which by their nature extend beyond the expiration or termination of the Contract, including indemnification obligations, confidentiality obligations, limitations of liability, shall survive expiration or termination of the Contract and remain in full force and effect.
Revision history
| Revision | Date | Compiled by | Approved by | Description |
|---|---|---|---|---|
| O | May 4, 2020 | J. Ziegler | T. Pink | Original issue |
| A | July 13, 2022 | J. Ziegler | T. Pink | Updated Section 3 and editorial change in Section 6 |
| B | November 22, 2022 | M. Morey | T. Pink | Added Section 6(g) to ensure proper disposal of waste |
© Copyright Dynamic Ratings, Inc. This document contains proprietary information, and remains the property of DR Inc. It shall not be copied, nor shall the information herein be divulged to any third party without written permission from DR Inc.