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Standard Terms and Conditions For Service Contracts, Service Agreements, and Purchase Orders

For contracts under which Newmark is acting as a principal and not agent for the Owner/Client:

1. Defined Terms.

As used herein: (a) the party on whose behalf Newmark & Company Real Estate, Inc., a New York corporation, or G&E Real Estate Management Services, Inc., a Delaware corporation, as the case may be (and in either case, “Newmark”) has entered into the subject Service Contract, Service Agreement, or Purchase Order (referred to herein as “the Contract”) is referred to as “Owner,” regardless of the term used to refer to that party in the Contract; (b) the term “Work” shall have the meaning given to that term or to the term “Services” in the Contract, or shall otherwise refer to the goods and services to be provided by Contractor under the Contract; and (c) if the term “Property” is not defined in the Contract, that term shall mean the premises that is the subject of the Work. Any other capitalized term used by not defined herein shall have the meaning given to that term in the Contract.

2. Permits, Taxes and Related Expenses.

Contractor shall secure all permits and licenses necessary for the performance of the Work. With respect to all employees engaged in the performance of the Work, Contractor accepts and assumes full and exclusive liability for compliance with all applicable laws and regulations related to workers compensation, social security, unemployment insurance, hours of labor, wages, working conditions and other employer-employee related issues, whether subject to federal, state or local law or regulation. Contractor shall take all actions necessary to obtain similar full compliance from each subcontractor performing Work under the Contract. Contractor shall, at its sole cost and expense, indemnify and hold the Indemnified Parties (defined below) harmless with respect to the failure of Contractor or any subcontractor performing Work under the Contract to comply with the provisions of this Section 2.

3. Protection of Persons and Property.

(a) Contractor shall be responsible for initiating, maintaining, and supervising all safety precautions and programs required in connection with the Work. Contractor shall take all necessary precautions for the safety of, and shall provide protection to prevent damage, injury, or loss to: (i) any employee or other person on the Work site; (ii) all materials to be incorporated into the Work; and/or (iii) the Work site and any improvements or other personal property located on the Work site. The obligations of Contractor under this Section 3 shall extend to Contractor’s agents, employees, subcontractors, suppliers, or others who may be performing Work under the Contract.

(b) Without limiting the generality of the foregoing, and except in accordance with normal operating practice and environmental statutes, Contractor and its subcontractors shall not introduce any Hazardous Materials into the Property without the prior written consent of Newmark, which consent Newmark may grant, withhold, or condition in Newmark’s sole and absolute discretion. Contractor shall promptly notify Newmark if Contractor or any of its subcontractors accidentally release any Hazardous Materials on or adjacent to the Property. As used in the Contract, “Hazardous Materials” means and includes any hazardous substance or any pollutant or contaminant defined as such in (or for purposes of) the Comprehensive Environmental Response, Compensation and Liability Act, any so-called “Superfund” or “Superlien” law, the Toxic Substances Control Act, or any other Law (as defined in Section 22 below) regulating, relating to, or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect, or any other hazardous, toxic or dangerous waste substance or material, including without limitation, any fungus, yeast or mold, and/or any spores or toxins emanating therefrom.

4. Contractor’s Employees.

Prior to the assignment by Contractor of any employee to perform Work under the Contract, Contractor shall take appropriate preventive steps that it reasonably believes shall ensure that such employee shall not engage in inappropriate conduct while performing Work under the Contract or while on the Property. Also, Contractor shall, if and to the extent both required by Newmark and permitted by law, conduct criminal and/or other background checks on its employees who are assigned to Work at the Property. Inappropriate conduct shall include, but not be limited to: (a) being under the influence of, or affected by, alcohol, illegal drugs or controlled substances; (b) the manufacture, use, distribution, sale, or possession of alcohol, illegal drugs, or any other controlled substance except for approved medical purposes; (c) the possession of a weapon of any type; and (d) harassment, threats or violent behavior. Violation of this Section 4 shall constitute a material breach of the Contract. In the same manner as provided for audit of financial and accounting records, Newmark shall have access to documentation necessary to verify Contractor’s compliance with this Section 4. Newmark in its discretion may require Contractor to remove any employee from any Property on which Work is being performed under the Contract.

5. Indemnity.

(h) As used in the Contract, the “Indemnified Parties” are and shall include: (i) Owner; (ii) Owner’s beneficiaries; (iii) Newmark (individually and as agent for Newmark); (iv) Owner’s asset manager for the Property (if any); (v) any and all parents, subsidiaries, partners and affiliates of the foregoing and all of their respective shareholders, directors, officers, partners, members, agents and employees of all of the foregoing; and (vi) anyone else acting for or on their behalf. For the avoidance of doubt, if Newmark is a sub-manager to Owner’s property manager for the Property, then that property manager is also included among the Indemnified Parties.

(i) To the extent permitted by law, Contractor, for itself, its agents, subcontractors and employees, shall indemnify and hold harmless (and, if requested by Newmark and/or Owner, defend) the Indemnified Parties from and against any and all claims, loss, costs, damages, liabilities, suits, liens and expenses, including reasonable attorneys’ fees and costs of defense (collectively, “Claims”) incurred by or asserted against any of the Indemnified Parties directly or indirectly arising or alleged to arise out of or in connection with or due to the Contractor’s performance or failure to perform any provisions of the Contract and from and against any and all Claims by or against agents, workers, suppliers and subcontractors who are directly or indirectly involved in the performance of the Contract, except as set forth in subsection (d) below.

(j) The obligations of Contractor under this Section 5 shall specifically include, but shall not be limited to, all Claims directly or indirectly arising or alleged to arise under any scaffolding, structural work or safe workplace law or any law or regulation with respect to the protection of adjacent properties or landowners.

(k) The obligations of Contractor under this Section 5 shall not include any Claims finally determined by a court of competent jurisdiction to have arisen solely from the negligence or willful acts or omissions of the Indemnified Party seeking to be indemnified, held harmless or defended.

(l) The obligations of Contractor under this Section 5 shall not be limited in any way by any limitation on or specification of any insurance proceeds or coverage.

(m) The obligations of Contractor under this Section 5 shall survive the expiration or earlier termination of the term of the Contract, whether by the passage of time or otherwise.

(n) Newmark may, at its election, withhold any monies payable hereunder and apply the same to the payment of any actual charges or expenses arising under this Section 5.

6. Termination.

(b) If any of the following shall occur, Newmark may terminate the Contract immediately upon written notice given to the Contractor:

(i) Contractor neglects to carry out the Work in accordance with the Contract;

(ii) Contractor disregards Laws of any public authority having jurisdiction;

(iii) Contractor fails to provide Newmark upon demand with copies of the evidence of insurance required under Section 9 of the Contract;

(iv) Contractor is adjudged a bankrupt, makes a general assignment for the benefit of creditors, or if a receiver is appointed on account of Contractor’s insolvency; or

(v) Contractor fails to make prompt payment to subcontractors for materials or labor.

(b) Notwithstanding anything in the Contract to the contrary, with or without cause, Newmark may terminate the Contract by giving thirty (30) calendar days’ written notice thereof to Contractor at any time during the term hereof.

7. Records/Audit.

Contractor shall maintain complete and accurate records in accordance with generally accepted accounting principles to substantiate charges made under the Contract. Such records shall include, but not be limited to, applicable time sheets, job cards, phone bills, travel receipts and job summaries. Contractor shall retain such records for three (3) years from the end of the contract year in which such charges were incurred. Newmark shall have access to such records and any other records Contractor is required to maintain under the Contract for the purpose of audit during normal business hours upon reasonable notice for so long as such records are required to be retained.

8. Warranty.

(a) Contractor warrants and guarantees that all goods, materials and workmanship provided by it or any of its subcontractors shall, in every way, be good, sound, free from defects and well suited for its intended purposes and that all materials and workmanship shall conform to the specifications under which the Work is being performed. Where goods or materials provided by Contractor or its subcontractors are to be integrated into other products, packages or systems, the same representation and warranty shall be and is hereby made for use of such goods, as integrated or incorporated into such other product, package or system. Where Contractor provides goods or materials in connection with the performance of its Work, then all such goods and materials shall (i) conform to any samples provided and to statements made on the containers, labels or advertisements of such goods or materials, and (ii) be adequately contained, packaged, marked, and labeled. Moreover, if and to the extent that any such goods or materials come with manufacturers warranties, then (iii) Contractor shall transfer and otherwise make available to Newmark all such warranties (and deliver all documents evidencing such warranties), and (iv) Contractor shall take no action without the consent of Newmark which would void, violate or impair such warranties.

(b) In the event a failure to satisfy any of the foregoing warrantees and guarantees shall occur or be detected within one (1) year from the date of final payment for the Work, Contractor shall, upon written notice from Newmark or any mortgagee of Owner’s interest in the Property, promptly and at its own expense remedy the deficiency, fault or imperfection (which, if necessary, shall mean that Contractor shall restore goods and materials to the same level as warranted herein or else repair or replace them with conforming goods and materials so as to minimize interruption to all applicable ongoing business processes), and pay all damages resulting therefrom. If Contractor fails to fulfill its obligation to take remedial action, Newmark or Owner’s mortgagee may take such action at the expense of Contractor and deduct from any amount that is or may become due Contractor the cost of such corrective actions and seek recovery to the extent the cost of corrective actions and damages exceeds the amount then due Contractor under the Contract.

9. Waiver of Mechanics’ or Materialmen’s Liens.

To the extent permitted by law, Contractor, for itself and for anyone claiming by, through or under it, hereby releases and waives any and all lien rights or claims to liens against the Property and/or the underlying real estate which might arise in connection with the furnishing of labor or materials or goods under the Contract. The foregoing release and waiver specifically includes, but is not limited to, all liens and rights or claims to liens arising under the applicable Mechanics’ Lien Act of the jurisdiction in which the Property is located, as the same may be amended and replaced from time to time. Contractor shall execute and deliver such additional documentation as may be required by Newmark evidencing that no mechanics’ or materialmen’s liens have been or shall be created as a result of the Work, including without limitation sworn contractors’ statements and partial and final lien waivers.

10. Assignment and Subcontracting.

(a) Any assignment or attempt to assign any portion of its rights or obligations by Contractor, including the right to receive money that may become due Contractor under the Contract, shall be void and of no force and effect unless Contractor shall have obtained the prior written consent to such assignment from Newmark, which consent may be granted or withheld in Newmark’s sole discretion.

(b) Newmark may assign the Contract to any entity controlled by or under common control of Newmark or to Owner upon written notice to Contractor of its intention to do so.

(c) Contractor shall not subcontract any of the Work to be performed under the Contract without first obtaining the written approval of Newmark, which may be granted or withheld in Newmark’s sole discretion. Such approval, if given, shall not release the Contractor from any responsibility or liability under the Contract.

11. Work Stoppage.

Contractor shall promptly notify Newmark of any impending work stoppage, strike or other similar interference with the performance of the Work of Contractor under the Contract. Newmark may, in its sole discretion and without incurring any liability to the Contractor, procure such services from others for the duration of such interference, owing nothing to Contractor until its Work is reinstated.

12. Solicitation and Distribution.

Contractor shall not permit any employee, or other entity operating directly or indirectly under its control, to engage in solicitation or distribution of materials of any kind on the Property.

13. Ownership of Materials.

All reports, memoranda, or other materials in written form (including materials in machine readable form) prepared by Contractor pursuant to the Contract and furnished to Newmark or Owner shall become the property of Newmark. Subject to other provisions of the Contract, Contractor may retain a copy of such documents for its records.

14. Trademarks.

Nothing in the Contract grants either Party any rights to use, directly or indirectly, the trade name or trademark of the other Party for any purpose without the prior written approval of such Party.

15. Gifts and Gratuities.

Contractor shall not give or offer any gift or gratuity of any type to any employee of Owner or Newmark.

16. Equal Opportunity.

Contractor represents, warrants and agrees that, during the term of the Contract: (a) Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin; and (b) Contractor shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. To the extent the same are applicable to Contractor, Contractor fully adheres to all the requirements of Executive Order No. 11246, as amended; Section 5.03 of The Rehabilitation Act of 1973, as amended; and The Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended; and all other relevant state and federal laws. Contractor shall include the provisions of this Section 16 in any subcontract entered into in connection with the Work.

17. Confidentiality.

Contractor shall consider all information furnished by Owner and/or Newmark to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing the Work required under the Contract, unless Contractor obtains written permission from Owner or Newmark to do so. This paragraph shall also apply to drawings, specifications, or other documents prepared by Contractor for Newmark in connection with the Contract. Contractor shall not advertise or publish the fact that Newmark has contracted to purchase goods or services from Contractor nor shall any information relating to the Contract be disclosed without Newmark or Owner’s written permission. Unless otherwise agreed in writing, no commercial, financial or technical information relative to Contractor disclosed in any manner or at any time by Contractor to Newmark or Owner shall be deemed secret or confidential. This Section 17 shall survive the expiration or earlier termination of the Contract and remain in full force and effect until otherwise agreed in writing by Newmark and Owner. Contractor shall advise its employees and any subcontractors of Contractor’s obligation with respect to information of Newmark and Owner.

18. Force Majeure, Delay.

Newmark shall not be held responsible for acceptance of all or any part of the goods or services tendered for delivery under the Contract when, due to governmental action, statute, ordinance or regulation, strike or other labor trouble, fire, windstorm, or other incidents outside of Newmark’s control, such acceptance is impossible or impractical. If Contractor is delayed in its performance of the Work due to the fault of Newmark or Owner, then the time fixed for the completion of the Work shall be extended equitably for the time so lost, which shall be Contractor’s sole remedy for such delay with no adjustment in the payment to Contractor. If Contractor is delayed in its performance of the Work due to general strike, lockouts, work stoppage or other similar interference, then the time fixed for the completion of the Work specified herein shall be extended equitably for the time so lost, which shall be Contractor’s sole remedy for such delay with no adjustment in the payment to Contractor, provided, however, that during the period of such delay, Newmark may, at its sole option, obtain the goods or services to be provided as part of the Work from another source during the period of such delay, and Newmark shall be under no obligation to accept those goods or services after the delay from Contractor.

19. Modification.

The Contract may be modified only by written amendment or other form of modification executed by authorized representatives of the Parties. It may not be modified by any oral agreements, by any implied agreement or custom, or by any waiver of any of its terms unless in writing.

20. Successors.

The Contract and each provision of it shall operate to the benefit of the Parties and to their respective successors in interest, legal representatives and assigns.

21. Governing Law.

The Contract shall be construed, governed and enforced in accordance with the laws of the jurisdiction in which the Property is located.

22. Compliance with Law.

(a) Contractor represents and warrants that any goods and/or services furnished pursuant hereto shall be in compliance with all applicable federal, state and local laws, ordinances, regulations, codes, rules orders and decrees (“Laws”), including, without limitation: (i) all environmental Laws relating to or imposing liability or standards concerning or in connection with hazardous, toxic or dangerous wastes, substances, material, gas or particulate matter as now or at any time hereafter in effect; and (ii) to the extent the same is applicable to the Contractor, the Consumers Product Safety Act of 1972, as amended, and Laws of similar effect. Where the Work to be performed permits, Contractor shall take such measures while performing the Work as are necessary to reasonably protect and safeguard the personnel and property of the Newmark, Owner, tenants and others at the Property or adjacent thereto. Contractor shall take all necessary precautions for the safety of its agents, subcontractors and employees at the Property and shall comply with, and shall cause its agents, subcontractors and employees to comply with: (i) all applicable Laws, including (to the extent the same are applicable to Contractor) the Occupational Safety and Health Act (OSHA) of 1970, as amended, all regulations promulgated pursuant to OSHA, and all applicable Laws governing workplace safety to prevent accidents or injuries to persons or damage to property on or about or adjacent to the premises where the Work is being performed; and (ii) all applicable safety rules and regulations of Newmark for the Property. As of all times when the Contract is in effect, Contractor further represents and warrants that neither Contractor nor any of its subcontractors, agents or employees are on any blocked or prohibited persons list maintained under any Law (including Presidential Executive Order 13224, to the extent the same is applicable to Contractor), and that neither Contractor nor any of its subcontractors, agents or employees have performed any acts or obtained any status that would cause Newmark or Owner to be barred in any way from doing business with Contractor.

(b) Without limiting the generality of the foregoing, Contractor shall, at its sole cost and expense, indemnify, defend and hold Owner’s tenants and the Indemnified Parties harmless from any Claims that might be asserted or imposed by reason of an asserted or established violation of applicable Laws on the part of Contractor and any other actual or alleged non-compliance of Contractor or Contractor’s agents, subcontractors and employees with any of the requirements of this Section 22. This Section 22 shall survive the expiration or earlier termination of the Contract.

23. Storage.

Newmark may, but shall not be required to, designate areas within or around the Property for the temporary storage of Contractor’s materials, equipment or supplies. From time to time, Newmark may relocate such storage areas or terminate Contractor’s permission to store any or all materials, equipment or supplies at or around the Property. All materials, equipment and supplies of Contractor which are stored at or around the Property shall be at Contractor’s sole risk and peril. Upon notice from Newmark or upon termination of the Contract, Contractor shall promptly remove from such designated storage area all of Contractor’s materials, equipment and supplies; and any materials, supplies or equipment of Contractor or Contractor’s agents or employees which remain more than twenty-four (24) hours after such notice or the termination of the Contract may be disposed of by Newmark or Owner without obligation or liability to Contractor or anyone claiming by, through or under Contractor.

24. Time is of the Essence.

Time is of the essence in Contractor’s performance of its obligations (including performance of the Work) under the Contract.

25. Section Headings.

The section headings contained in the Contract are provided for convenience only and do not affect the interpretation of the Contract or the rights and obligations of the Parties.

26. Entire Agreement.

The Contract contains all of the agreements, conditions and understandings of the Parties regarding the subject matter of the Contract, and supersedes all prior negotiations, representations or agreements between them, whether oral or written.

27. Severability.

If any term or provision of the Contract or the application thereof to any person or circumstances shall, to any extent, be invalid and unenforceable, the remainder of the Contract or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term or provision of the Contract shall be valid and be enforced to the fullest extent permitted by law.

28. Further Assurances.

Each Party shall, upon the request of the other Party, execute and deliver, in recordable form if necessary, such further documents, instruments or agreements and shall take such further action that may be necessary or appropriate to effectuate the purposes of the Contract.

29. Attorneys’ Fees.

In the event of the bringing of any action or suit by either Party against the other Party alleging a breach of any of the covenants, conditions, agreements or provisions of the Contract, the prevailing Party shall recover all reasonable costs and expenses of suit, including without limitation, reasonable attorneys’ fees, consultants fees and fees of expert witnesses.

30. Power and Authority.

Each person executing the Contract on behalf of a Party warrants and represents to the other Party that he or she has the full power and authority to execute the Contract and to bind his or her respective Party hereto.

31. Contract Execution.

The Contract may be executed electronically and in multiple counterparts, each of which shall be deemed original, and all of which together shall constitute one and the same instrument. Either Party may deliver its signature to the Contract by facsimile or electronic mail. Either Party that receives an executed signature page from the other Party by facsimile or electronic mail may rely upon said signature as if it was a signed original.



For contracts under which Newmark is acting as agent for the Owner/Client:

1. Defined Terms.

As used herein: (a) the party on whose behalf Newmark & Company Real Estate, Inc., a New York corporation, or G&E Real Estate Management Services, Inc., a Delaware corporation, as the case may be (and in either case, “Agent”) is acting as agent under the subject Service Contract, Service Agreement, or Purchase Order (referred to herein as “the Contract”) is referred to as “Owner,” regardless of the term used to refer to that party in the Contract; (b) the term “Work” shall have the meaning given to that term or to the term “Services” in the Contract, or shall otherwise refer to the goods and services to be provided by Contractor under the Contract; and (c) if the term “Property” is not defined in the Contract, that term shall mean the premises that is the subject of the Work. Any other capitalized term used by not defined herein shall have the meaning given to that term in the Contract.

2. Permits, Taxes and Related Expenses.

Contractor shall secure all permits and licenses necessary for the performance of the Work. With respect to all employees engaged in the performance of the Work, Contractor accepts and assumes full and exclusive liability for compliance with all applicable laws and regulations related to workers compensation, social security, unemployment insurance, hours of labor, wages, working conditions and other employer-employee related issues, whether subject to federal, state or local law or regulation. Contractor shall take all actions necessary to obtain similar full compliance from each subcontractor performing Work under the Contract. Contractor shall, at its sole cost and expense, indemnify and hold the Indemnified Parties (defined below) harmless with respect to the failure of Contractor or any subcontractor performing Work under the Contract to comply with the provisions of this Section 2.

3. Protection of Persons and Property.

(a) Contractor shall be responsible for initiating, maintaining, and supervising all safety precautions and programs required in connection with the Work. Contractor shall take all necessary precautions for the safety of, and shall provide protection to prevent damage, injury, or loss to: (i) any employee or other person on the Work site; (ii) all materials to be incorporated into the Work; and/or (iii) the Work site and any improvements or other personal property located on the Work site. The obligations of Contractor under this Section 3 shall extend to Contractor’s agents, employees, subcontractors, suppliers, or others who may be performing Work under the Contract.

(b) Without limiting the generality of the foregoing, and except in accordance with normal operating practice and environmental statutes, Contractor and its subcontractors shall not introduce any Hazardous Materials into the Property without the prior written consent of Agent, which consent Agent may grant, withhold, or condition in Agent’s sole and absolute discretion. Contractor shall promptly notify Agent if Contractor or any of its subcontractors accidentally release any Hazardous Materials on or adjacent to the Property. As used in the Contract, “Hazardous Materials” means and includes any hazardous substance or any pollutant or contaminant defined as such in (or for purposes of) the Comprehensive Environmental Response, Compensation and Liability Act, any so-called “Superfund” or “Superlien” law, the Toxic Substances Control Act, or any other Law (as defined in Section 22 below) regulating, relating to, or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect, or any other hazardous, toxic or dangerous waste substance or material, including without limitation, any fungus, yeast or mold, and/or any spores or toxins emanating therefrom.

4. Contractor’s Employees.

Prior to the assignment by Contractor of any employee to perform Work under the Contract, Contractor shall take appropriate preventive steps that it reasonably believes shall ensure that such employee shall not engage in inappropriate conduct while performing Work under the Contract or while on the Property. Also, Contractor shall, if and to the extent both required by Owner and permitted by law, conduct criminal and/or other background checks on its employees who are assigned to Work at the Property. Inappropriate conduct shall include, but not be limited to: (a) being under the influence of, or affected by, alcohol, illegal drugs or controlled substances; (b) the manufacture, use, distribution, sale, or possession of alcohol, illegal drugs, or any other controlled substance except for approved medical purposes; (c) the possession of a weapon of any type; and (d) harassment, threats or violent behavior. Violation of this Section 6 shall constitute a material breach of the Contract. In the same manner as provided for audit of financial and accounting records, Owner shall have access to documentation necessary to verify Contractor’s compliance with this Section 4. Owner in its discretion may require Contractor to remove any employee from any Property on which Work is being performed under the Contract.

5. Indemnity.

(a) As used in the Contract, the “Indemnified Parties” are and shall include: (i) Owner; (ii) Owner’s beneficiaries; (iii) Agent (individually and as agent for Owner); (iv) Owner’s asset manager for the Property (if any); (v) any and all parents, subsidiaries, partners and affiliates of the foregoing and all of their respective shareholders, directors, officers, partners, members, agents and employees of all of the foregoing; and (vi) anyone else acting for or on their behalf. For the avoidance of doubt, if Agent is a sub-manager to Owner’s property manager for the Property, then that property manager is also included among the Indemnified Parties.

(b) To the extent permitted by law, Contractor, for itself, its agents, subcontractors and employees, shall indemnify and hold harmless (and, if requested by Agent and/or Owner, defend) the Indemnified Parties from and against any and all claims, loss, costs, damages, liabilities, suits, liens and expenses, including reasonable attorneys’ fees and costs of defense (collectively, “Claims”) incurred by or asserted against any of the Indemnified Parties directly or indirectly arising or alleged to arise out of or in connection with or due to the Contractor’s performance or failure to perform any provisions of the Contract and from and against any and all Claims by or against agents, workers, suppliers and subcontractors who are directly or indirectly involved in the performance of the Contract, except as set forth in subsection (d) below.

(c) The obligations of Contractor under this Section 5 shall specifically include, but shall not be limited to, all Claims directly or indirectly arising or alleged to arise under any scaffolding, structural work or safe workplace law or any law or regulation with respect to the protection of adjacent properties or landowners.

(d) The obligations of Contractor under this Section 5 shall not include any Claims finally determined by a court of competent jurisdiction to have arisen solely from the negligence or willful acts or omissions of the Indemnified Party seeking to be indemnified, held harmless or defended.

(e) The obligations of Contractor under this Section 5 shall not be limited in any way by any limitation on or specification of any insurance proceeds or coverage.

(f) The obligations of Contractor under this Section 5 shall survive the expiration or earlier termination of the term of the Contract, whether by the passage of time or otherwise.

(g) Owner may, at its election, withhold any monies payable hereunder and apply the same to the payment of any actual charges or expenses arising under this Section 5.

6. Termination.

(a) If any of the following shall occur, Owner may terminate the Contract immediately upon written notice given to the Contractor:

(i) Contractor neglects to carry out the Work in accordance with the Contract;

(ii) Contractor disregards Laws of any public authority having jurisdiction;

(iii) Contractor fails to provide Agent upon demand with copies of the evidence of insurance required under Section 9 of the Contract;

(iv) Contractor is adjudged a bankrupt, makes a general assignment for the benefit of creditors, or if a receiver is appointed on account of Contractor’s insolvency; or

(v) Contractor fails to make prompt payment to subcontractors for materials or labor.

(b) Notwithstanding anything in the Contract to the contrary, with or without cause, Owner may terminate the Contract by giving thirty (30) calendar days’ written notice thereof to Contractor at any time during the term hereof.

7. Records/Audit.

Contractor shall maintain complete and accurate records in accordance with generally accepted accounting principles to substantiate charges made under the Contract. Such records shall include, but not be limited to, applicable time sheets, job cards, phone bills, travel receipts and job summaries. Contractor shall retain such records for three (3) years from the end of the contract year in which such charges were incurred. Owner shall have access to such records and any other records Contractor is required to maintain under the Contract for the purpose of audit during normal business hours upon reasonable notice for so long as such records are required to be retained.

8. Warranty.

(a) Contractor warrants and guarantees that all goods, materials and workmanship provided by it or any of its subcontractors shall, in every way, be good, sound, free from defects and well suited for its intended purposes and that all materials and workmanship shall conform to the specifications under which the Work is being performed. Where goods or materials provided by Contractor or its subcontractors are to be integrated into other products, packages or systems, the same representation and warranty shall be and is hereby made for use of such goods, as integrated or incorporated into such other product, package or system. Where Contractor provides goods or materials in connection with the performance of its Work, then all such goods and materials shall (i) conform to any samples provided and to statements made on the containers, labels or advertisements of such goods or materials, and (ii) be adequately contained, packaged, marked, and labeled. Moreover, if and to the extent that any such goods or materials come with manufacturers warranties, then (iii) Contractor shall transfer and otherwise make available to Owner all such warranties (and deliver all documents evidencing such warranties), and (iv) Contractor shall take no action without the consent of Owner which would void, violate or impair such warranties.

(b) In the event a failure to satisfy any of the foregoing warrantees and guarantees shall occur or be detected within one (1) year from the date of final payment for the Work, Contractor shall, upon written notice from Owner or any mortgagee of Owner’s interest in the Property, promptly and at its own expense remedy the deficiency, fault or imperfection (which, if necessary, shall mean that Contractor shall restore goods and materials to the same level as warranted herein or else repair or replace them with conforming goods and materials so as to minimize interruption to all applicable ongoing business processes), and pay all damages resulting therefrom. If Contractor fails to fulfill its obligation to take remedial action, Owner or Owner’s mortgagee may take such action at the expense of Contractor and deduct from any amount that is or may become due Contractor the cost of such corrective actions and seek recovery to the extent the cost of corrective actions and damages exceeds the amount then due Contractor under the Contract.

9. Waiver of Mechanics’ or Materialmen’s Liens.

To the extent permitted by law, Contractor, for itself and for anyone claiming by, through or under it, hereby releases and waives any and all lien rights or claims to liens against the Property and/or the underlying real estate which might arise in connection with the furnishing of labor or materials or goods under the Contract. The foregoing release and waiver specifically includes, but is not limited to, all liens and rights or claims to liens arising under the applicable Mechanics’ Lien Act of the jurisdiction in which the Property is located, as the same may be amended and replaced from time to time. Contractor shall execute and deliver such additional documentation as may be required by Owner evidencing that no mechanics’ or materialmen’s liens have been or shall be created as a result of the Work, including without limitation sworn contractors’ statements and partial and final lien waivers.

10. Assignment and Subcontracting.

(a) Any assignment or attempt to assign any portion of its rights or obligations by Contractor, including the right to receive money that may become due Contractor under the Contract, shall be void and of no force and effect unless Contractor shall have obtained the prior written consent to such assignment from Owner, which consent may be granted or withheld in Owner’s sole discretion.

(b) Owner may assign the Contract upon written notice to Contractor of its intention to do so and without the need to obtain Contractor’s consent.

(c) Contractor shall not subcontract any of the Work to be performed under the Contract without first obtaining the written approval of Owner, which may be granted or withheld in Owner’s sole discretion. Such approval, if given, shall not release the Contractor from any responsibility or liability under the Contract.

11. Work Stoppage.

Contractor shall promptly notify Owner of any impending work stoppage, strike or other similar interference with the performance of the Work of Contractor under the Contract. Owner may, in its sole discretion and without incurring any liability to the Contractor, procure such services from others for the duration of such interference, owing nothing to Contractor until its Work is reinstated.

12. Solicitation and Distribution.

Contractor shall not permit any employee, or other entity operating directly or indirectly under its control, to engage in solicitation or distribution of materials of any kind on the Property.

13. Ownership of Materials.

All reports, memoranda, or other materials in written form (including materials in machine readable form) prepared by Contractor pursuant to the Contract and furnished to Owner or Agent shall become the property of Owner. Subject to other provisions of the Contract, Contractor may retain a copy of such documents for its records.

14. Trademarks.

Nothing in the Contract grants either Party any rights to use, directly or indirectly, the trade name or trademark of the other Party for any purpose without the prior written approval of such Party.

15. Gifts and Gratuities.

Contractor shall not give or offer any gift or gratuity of any type to any employee of Owner or Agent.

16. Equal Opportunity.

Contractor represents, warrants and agrees that, during the term of the Contract: (a) Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin; and (b) Contractor shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. To the extent the same are applicable to Contractor, Contractor fully adheres to all the requirements of Executive Order No. 11246, as amended; Section 5.03 of The Rehabilitation Act of 1973, as amended; and The Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended; and all other relevant state and federal laws. Contractor shall include the provisions of this Section 16 in any subcontract entered into in connection with the Work.

17. Confidentiality.

Contractor shall consider all information furnished by Owner and/or Agent to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing the Work required under the Contract, unless Contractor obtains written permission from Owner or Agent to do so. This paragraph shall also apply to drawings, specifications, or other documents prepared by Contractor for Owner in connection with the Contract. Contractor shall not advertise or publish the fact that Owner has contracted to purchase goods or services from Contractor nor shall any information relating to the Contract be disclosed without Owner or Agent’s written permission. Unless otherwise agreed in writing, no commercial, financial or technical information relative to Contractor disclosed in any manner or at any time by Contractor to Owner or Agent shall be deemed secret or confidential. This Section 17 shall survive the expiration or earlier termination of the Contract and remain in full force and effect until otherwise agreed in writing by Owner and Agent. Contractor shall advise its employees and any subcontractors of Contractor’s obligation with respect to information of Owner and Agent.

18. Force Majeure, Delay.

Owner shall not be held responsible for acceptance of all or any part of the goods or services tendered for delivery under the Contract when, due to governmental action, statute, ordinance or regulation, strike or other labor trouble, fire, windstorm, or other incidents outside of Owner’s control, such acceptance is impossible or impractical. If Contractor is delayed in its performance of the Work due to the fault of Owner or Agent, then the time fixed for the completion of the Work shall be extended equitably for the time so lost, which shall be Contractor’s sole remedy for such delay with no adjustment in the payment to Contractor. If Contractor is delayed in its performance of the Work due to general strike, lockouts, work stoppage or other similar interference, then the time fixed for the completion of the Work specified herein shall be extended equitably for the time so lost, which shall be Contractor’s sole remedy for such delay with no adjustment in the payment to Contractor, provided, however, that during the period of such delay, Owner may, at its sole option, obtain the goods or services to be provided as part of the Work from another source during the period of such delay, and Owner shall be under no obligation to accept those goods or services after the delay from Contractor.

19. Modification.

The Contract may be modified only by written amendment or other form of modification executed by authorized representatives of the Parties. It may not be modified by any oral agreements, by any implied agreement or custom, or by any waiver of any of its terms unless in writing.

20. Successors.

The Contract and each provision of it shall operate to the benefit of the Parties and to their respective successors in interest, legal representatives and assigns.

21. Governing Law.

The Contract shall be construed, governed and enforced in accordance with the laws of the jurisdiction in which the Property is located.

22. Compliance with Law.

(a) Contractor represents and warrants that any goods and/or services furnished pursuant hereto shall be in compliance with all applicable federal, state and local laws, ordinances, regulations, codes, rules orders and decrees (“Laws”), including, without limitation: (i) all environmental Laws relating to or imposing liability or standards concerning or in connection with hazardous, toxic or dangerous wastes, substances, material, gas or particulate matter as now or at any time hereafter in effect; and (ii) to the extent the same is applicable to the Contractor, the Consumers Product Safety Act of 1972, as amended, and Laws of similar effect. Where the Work to be performed permits, Contractor shall take such measures while performing the Work as are necessary to reasonably protect and safeguard the personnel and property of Owner, Agent, tenants and others at the Property or adjacent thereto. Contractor shall take all necessary precautions for the safety of its agents, subcontractors and employees at the Property and shall comply with, and shall cause its agents, subcontractors and employees to comply with: (i) all applicable Laws, including (to the extent the same are applicable to Contractor) the Occupational Safety and Health Act (OSHA) of 1970, as amended, all regulations promulgated pursuant to OSHA, and all applicable Laws governing workplace safety to prevent accidents or injuries to persons or damage to property on or about or adjacent to the premises where the Work is being performed; and (ii) all applicable safety rules and regulations of Owner for the Property. As of all times when the Contract is in effect, Contractor further represents and warrants that neither Contractor nor any of its subcontractors, agents or employees are on any blocked or prohibited persons list maintained under any Law (including Presidential Executive Order 13224, to the extent the same is applicable to Contractor), and that neither Contractor nor any of its subcontractors, agents or employees have performed any acts or obtained any status that would cause Owner or Agent to be barred in any way from doing business with Contractor.

(b) Without limiting the generality of the foregoing, Contractor shall, at its sole cost and expense, indemnify, defend and hold Owner’s tenants and the Indemnified Parties harmless from any Claims that might be asserted or imposed by reason of an asserted or established violation of applicable Laws on the part of Contractor and any other actual or alleged non-compliance of Contractor or Contractor’s agents, subcontractors and employees with any of the requirements of this Section 22. This Section 22 shall survive the expiration or earlier termination of the Contract.

23. Storage.

Owner may, but shall not be required to, designate areas within or around the Property for the temporary storage of Contractor’s materials, equipment or supplies. From time to time, Owner may relocate such storage areas or terminate Contractor’s permission to store any or all materials, equipment or supplies at or around the Property. All materials, equipment and supplies of Contractor which are stored at or around the Property shall be at Contractor’s sole risk and peril. Upon notice from Owner or upon termination of the Contract, Contractor shall promptly remove from such designated storage area all of Contractor’s materials, equipment and supplies; and any materials, supplies or equipment of Contractor or Contractor’s agents or employees which remain more than twenty-four (24) hours after such notice or the termination of the Contract may be disposed of by Owner or Agent without obligation or liability to Contractor or anyone claiming by, through or under Contractor.

24. Owner.

Agent has been retained by Owner to act on behalf of and as agent for Agent for the negotiation, execution and administration of the Contract. Owner has authorized Agent to enter into the Contract and to exercise, on Owner’s behalf, each and all of Owner’s rights under the Contract. Owner shall be solely responsible for making payments to Contractor pursuant to the terms and conditions of the Contract, and Contractor agrees that Agent shall have no responsibility or liability to Contractor in connection with any such payment and that Contractor shall therefore look solely to Owner, and not to Agent, for any such payment.

25. Time is of the Essence.

Time is of the essence in Contractor’s performance of its obligations (including performance of the Work) under the Contract.

26. Section Headings.

The section headings contained in the Contract are provided for convenience only and do not affect the interpretation of the Contract or the rights and obligations of the Parties.

27. Entire Agreement.

The Contract contains all of the agreements, conditions and understandings of the Parties regarding the subject matter of the Contract, and supersedes all prior negotiations, representations or agreements between them, whether oral or written.

28. Severability.

If any term or provision of the Contract or the application thereof to any person or circumstances shall, to any extent, be invalid and unenforceable, the remainder of the Contract or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term or provision of the Contract shall be valid and be enforced to the fullest extent permitted by law.

29. Further Assurances.

Each Party shall, upon the request of the other Party, execute and deliver, in recordable form if necessary, such further documents, instruments or agreements and shall take such further action that may be necessary or appropriate to effectuate the purposes of the Contract.

30. Attorneys’ Fees.

In the event of the bringing of any action or suit by either Party against the other Party alleging a breach of any of the covenants, conditions, agreements or provisions of the Contract, the prevailing Party shall recover all reasonable costs and expenses of suit, including without limitation, reasonable attorneys’ fees, consultants fees and fees of expert witnesses.

31. Power and Authority.

Each person executing the Contract on behalf of a Party warrants and represents to the other Party that he or she has the full power and authority to execute the Contract and to bind his or her respective Party hereto.

32. Contract Execution.

The Contract may be executed electronically and in multiple counterparts, each of which shall be deemed original, and all of which together shall constitute one and the same instrument. Either Party may deliver its signature to the Contract by facsimile or electronic mail. Either Party that receives an executed signature page from the other Party by facsimile or electronic mail may rely upon said signature as if it was a signed original.



Revised 9/22/20