One (1) year but shall automatically renew for successive one (1) year periods unless terminated by either party prior to such renewal date with thirty (30) days written notice.
Statement of Work. Subcontractor will provide services described on the Statements of Work as requested by Curbio in the Curbio app.
Performance. In addition to all labor and materials specified in each Statement of Work, Subcontractor will be responsible for supplying alltools, miscellaneous supplies, transportation, and trade permits necessary to complete the services.
3. Project Management
- Quality of Work. Subcontractor will provide all services in a good and workmanlike manner, subject to quality and production standards set by Curbio, as updated from time to time in its sole discretion. Subcontractor shall be lawfully licensed, as required, in the jurisdiction(s) where work is performed. Subcontractor must always operate at the highest level of professionalism, maintain a safe and clean working job site and leave the job site in an orderly and broom swept condition at the end of each work session.
- Communication. Subcontractor shall designate in writing a representative who shall have express authority to act on the Subcontractor’s behalf with respect to the Projects undertaken by each Statement of Work.
- Subcontracting. Subcontractor shall enter into written agreements with any sub-subcontractors performing portions of the Statements of Work and provide copies of such agreements to Curbio. Subcontractor assumes responsibility for the work performed by its sub-subcontractors.
- Work Progress. Subcontractor shall supervise and direct the Subcontractor’s Work and shall cooperate with Curbio in scheduling and performing the Subcontractor’s work to avoid conflict, delay in, or interference with the Work of Curbio, other subcontractors, and the Owner. Subcontractor shall furnish to Curbio periodic progress reports concerning the status of Subcontractor’s Work as mutually agreed, including information concerning the status of materials and equipment that may be in the course of preparation, manufacture, transit, or installation.
- Protection of Work. Subcontractor shall take necessary precautions to properly protect the work of Curbio and other subcontractors from damage caused by Subcontractor’s performance of its Statements of Work.
- Remediation. At Curbio’s request, Subcontractor will correct or replace, in a timely manner and at Subcontractor’s sole cost, all defective or nonconforming work or materials. Services not in accordance with this provision may be corrected by Curbio and charged to Subcontractor.
Any changes to the Statements of Work or contract price must be agreed to by both parties in a new, written Statement of Work.Curbio will not be responsible for paying Subcontractor for services provided, whether agreed to verbally or undertaken at Subcontractor’s own accord, that are not agreed to by both parties in a fully executed Statement of Work.
Fees The contract price will be a fixed amount provided in each Statement of Work.
Payment. Subcontractor shall either 1) request payment through the Curbio app if that option is made available by Curbio at its sole discretion, or 2) deliver a written invoice for services pursuant to the Statement of Work, for any work completely performed and approved by the Curbio project manager, within three (3) days of completion . Curbio shall pay Subcontractor’s undisputed request for payments or invoiceswithin fourteen (14) days after receipt of all required documents. Prior to any payment hereunder, Curbio may require Subcontractor to furnish a full and compete waiver or release of liens from each subcontractor, material man, or artisan retained by Subcontractor waiving or releasing any liens or claims whatsoever against Curbio or the property of the customer. Curbio will only be responsible to pay invoices up to the contract price. Any undisputed Subcontractor invoices received later than three (3) business days from completion of work will be paid within (30) days from receipt.
Claims for Payment, Invoices. Subcontractor must provide notice to Curbio of any claim regarding payment within thirty (30) days after Project completion or the claim may be waived at Curbio’s sole discretion. Acceptance of final payment by Subcontractor shall constitute a waiver of claims by Subcontractor against Curbio, except those previously made in writing and submitted to Curbio and identified in writing by Subcontractor as unsettled at the time of application for final payment.
No Liens. Subcontractor shall not file or allow a lien of any kind to be filed against the property of the customer or Curbio for any services furnished for work under this Agreement. Curbio may take any and all steps necessary to release any such attachments or lien, and Subcontractor shall be responsible for the payment to Curbio, plus interest thereof at the maximum rate permitted by law.
5. Representations, Warranties and Covenants
Representations and Warranties. Subcontractor represents and warrants that:
- it will promptly pay all salaries and other monies owing to its employees, agents and independent contractors;
- all personnel providing the services are qualified to provide such services;
- the work product, services or deliverables will conform to the specifications set forth in each applicable Statement of Work for a period of one (1) year against defects;
- Subcontractor and its personnel will: (i) comply with all applicable federal, state, local or agency laws, statutes, rules and regulations and ordinances; and (ii) obtain all releases, licenses, permits, or authorizations required by any governmental authority for Subcontractor to fulfill its obligations under this Agreement.
6. Status of Parties
Independent Contractor. Subcontractor and its employees, agents, representatives, assigns and subcontractors (the “Subcontractor Parties” or singularly a “Subcontractor Party”) will represent themselves only as independent contractors unrelated to Curbio, any of its parents, subsidiaries or affiliated companies and employees. Subcontractor will not have and will not represent itself as having any authority to make contracts in the name of or on behalf of Curbio in any way. Curbio will have no direction or control over Subcontractor or any Subcontractor employee or the manner and method utilized by Subcontractor performing the Statement of Work in conformance with the terms, conditions, and obligations of thisAgreement.
7. Insurance, Indemnity
Minimum Coverage Requirements.
Subcontractor and its subcontractors shall maintain, during the Term, the following types of insurance and minimum coverage:
- Statutory workers compensation and unemployment insurance coverage in such amounts and upon such terms as required by law; and
- Commercial general liability with limits of $1,000,000 per occurrence, $1,000,000 for Personal Injury, $2,000,000 General Aggregate providing coverage for completed operations, products liability and contractual liability; and
- Comprehensive automobile liability covering all vehicles used by Subcontractor, whether owned, non-owned or hired or otherwise with combined single liability limits of $500,000 per occurrence. All drivers shall be fully licensed and qualified to operate such vehicles.
Certificates. Subcontractor shall furnish certificates of insurance in a reasonably acceptable form to Curbio evidencing that Subcontractor is in compliance with the insurance requirements of this Agreement.
Additional Insured Obligations. To the fullest extent permitted by law, Subcontractor shall cause its commercial general liability coverage to include: (1) Curbio and Owner as additional insureds for claims caused in whole or in part by Subcontractor’s negligent acts or omissions during Subcontractor’s performance of its Work; and (2) Curbio and Owner as additional insureds for claims caused in whole or in part by Subcontractor’s negligent acts or omissions for which loss occurs during Subcontractor’s completed Work. The additional insured coverage shall be primary and non-contributory to any of Curbio’s and Owner’s general liability insurance policies and shall apply to both ongoing and completed Work and operations. To the extent commercially available, the additional insured coverage shall be no less than that provided by Insurance Services Office, Inc. (ISO) CG 20 10 07 04 and CG 20 37 07 04.
Notice of Cancellation or Change in Coverage. Within three (3) business days of the date Subcontractor obtains actual knowledge of an impending or actual cancellation or expiration of any insurance required by this Agreement, Subcontractor shall provide notice to Curbio of such impending or actual cancellation or expiration. Upon receipt of notice from Subcontractor, Curbio shall have the right to suspend Subcontractor’s Statement of Work until the lapse in coverage has been cured by Subcontractor’s procurement of replacement or resumed coverage. The furnishing of notice by Subcontractor shall not relieve Subcontractor of any contractual obligation to provide any required coverage.
Indemnity. Subcontractor agrees to indemnify, defend, and hold Curbio, Curbio’s affiliates and their officers, Curbio’s parent corporations and its parentcorporations’ employees, directors, and agents harmless from all claims, damages, liabilities, losses, and expenses (including but not limited to attorneys’ fees and settlement costs) arising out of or resulting from
- the negligent, defective, or improper performance of Subcontractor’s services described in its Statements of Work;
- any acts, failure to act, or omissions of the Subcontractor, or its employees in the performance of its duties hereunder, including without limitation claims for death, damage or injury to persons or property, caused by the Subcontractor or its employees; and
- any failure by Subcontractor to properly collect time and pay wages in accordance with applicable laws for any of its employees, agents, contractors, or other third party. Subcontractor agrees to immediately notify Curbio of any suits filed, or claims made, against Subcontractor or Curbio. Subcontractor will defend any claims or actions against Curbio in connection with this Agreement. Subcontractor will reimburse Curbio for any costs incurred to enforce Subcontractor’s obligations under this Agreement.
Liability for Indemnified Claims. In claims against any person or entity indemnified under this Section 7.05 by an employee of Subcontractor, Subcontractor’s sub-subcontractors, anyone directly or indirectly employed by Subcontractor, or anyone for whose acts Subcontractor may be liable, the indemnification obligation under Section 7.05 shall not be limited by a limitation on the amount or type of damages, compensation or benefits payable by or for Subcontractor, or the Subcontractor’s sub-subcontractors under workers’ compensation acts, disability benefit acts, or other employee benefit acts.
Waivers of Subrogation. Curbio and Subcontractor waive all rights against (1) each other and any of their subcontractors, sub-subcontractors, agents, and employees, each of the other, and (2) Owner, Architect, Architect’s consultants, and (3) separate contractors, if any, and any of their subcontractors, sub-subcontractors, agents, and employees for damages caused by fire or other causes of loss to the extent those losses are covered by property insurance applicable to the Statement of Work or to property adjacent to the Project, except such rights as they may have to proceeds of such insurance held by the Owner as a fiduciary. Subcontractor shall require similar written waivers in favor of the individuals and entities enumerated herein from the Subcontractor’s sub-contractors, if any, their agents, and employees. The policies of insurance purchased and maintained by each person or entity agreeing to waive claims pursuant to this Section 7.07 shall not prohibit this waiver of subrogation, which shall be effective as to a person or entity (1) even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, (2) even though that person or entity did not pay the insurance premium directly or indirectly, or (3) whether or not the person or entity had an insurable interest in the property damaged.
8. Breach, Remedies and Termination
Breach. The occurrence of any one or more of the following events will constitute a breach and default of this Agreement:
- Failure by Subcontractor to observe or perform any of the obligations, covenants, conditions, representations, or warranties required of Subcontractor pursuant to this Agreement; or
- If a party is insolvent, seeks protection from creditors, makes a general assignment for the benefit of creditors, or if a receiver is appointed for its business.
Force Majeure. Each party will be excused from performance under this Agreement for a cause beyond its reasonable control. Force majeure will not include Subcontractor’s mechanical failure, labor shortages or work stoppages. If either party is rendered unable wholly or in partby force majeure to carry out its obligations under this Agreement, then the party affected by force majeure will give written notice immediately.Obligations will be suspended only during the continuance of the events giving rise to the force majeure provided that the affected party is actingwith due diligence to remedy the events giving rise to the force majeure. If Subcontractor is unable to perform for a period of more than five (5) working days due to any delay, Curbio may terminate this Agreement or any Statement of Work.
Termination: Except as otherwise provided, the parties may terminate this Agreement or any Statement of Work only under the following circumstances:
- by Curbio with or without cause with written notice, or notification through the Curbio app, to Subcontractor;
- by Subcontractor with cause, after thirty (30) calendar days written notice to Curbio.
Remedies. If Subcontractor breaches this Agreement, Curbio will have the following remedies, in addition to any other remedies available by this Agreement or at law or equity:
- The right to withhold and set-off against all or part of any remaining payments until such breach is cured to Curbio’s reasonable satisfaction; and
- The right to contract with an alternative service provider. In such case, Subcontractor will be liable to Curbio for all additional costs incurred by Curbio to complete the work and any other direct, indirect, or consequential damages or injury caused by Subcontractor’s breach.
9. Claims and Disputes
Mediation. Claims, disputes, or other matters in controversy arising out of or related to this Subcontract, except those waived as provided for in this Section 4.03, shall be subject to mediation as a condition precedent to binding dispute resolution. The parties agree to endeavor to resolve any such claim(s) by mediation which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with its Construction Industry Mediation Procedures in effect on the date of this Agreement. A request for mediation shall be made in writing, delivered to the other party to this Agreement, and filed with the person or persons administering the mediation. Such request may be made concurrently with the filing of binding dispute resolution proceedings, which shall be stayed pending mediation for a period of sixty (60) days from the date of filing, unless stayed for a longer period of time by agreement of the parties or by court or arbitrator order. If arbitration proceedings are stayed pursuant to this Section 9.01, the parties may nevertheless proceed to select the arbitrator or arbitration panel and prepare a scheduling order to govern proceedings. The parties agree to share the mediator’s fees and any filing fees equally. Any agreement reached in mediation shall be enforceable as a settlement agreement in a court having jurisdiction over same.
Binding Dispute Resolution.
- For any claim subject to, but not resolved by the mediation procedure outlined in this Section 9.01, the method of binding resolution shall be arbitration conducted and administered by the American Arbitration Association in accordance with its Construction Industry Arbitration Rules in effect on the date of this Agreement, unless otherwise agreed. Arbitration shall be conducted in the place where the Statement of Work was performed, unless another location is agreed upon by the parties. A demand for arbitration shall be made in writing, delivered to the other party to the Subcontract, and filed with the person or entity administering the arbitration. The party filing a notice of demand for arbitration shall assert in the demand all claims then known to that party on which arbitration is permitted to be demanded.
- Demand for arbitration shall be made no earlier than concurrently with the filing of a request for mediation but in no event shall it be made after the date when the institution of legal or equitable proceedings based on the claim would be barred by the applicable statute of limitations. For purposes of determining whether such claim is asserted within the statute of limitations period, receipt of a written demand for arbitration in compliance with this Section 9.02 by the person or entity administering the arbitration shall constitute the institution of legal or equitable proceedings based on the claim.
- The award entered by the arbitrator or arbitration panel shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction over same.
- The foregoing agreement to arbitrate shall be specifically enforceable under applicable law in any court having jurisdiction thereof.