Rev. 7 September 2005 HORIZON II, LLC.
STANDARD TERMS AND CONDITIONS
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- CONTRACT. These Standard Terms and Conditions (“Terms”), and all of the terms and conditions set forth in any agreement between the parties to which these terms and conditions are attached, or which are incorporated therein by reference (the Terms and such other agreements collectively hereinafter referred to the “Contract”), constitute the offer of Horizon II, LLC. (“Horizon II”) to contract with such other party to such other agreement (“Vendor”). None of the terms or conditions of the Contract may be modified, supplemented or deleted other than in writing, executed by an authorized Horizon II employee. When accepted by Vendor, the Contract constitutes the sale agreement between Horizon II and Vendor for the goods and/or services to be sold or performed by Vendor. Horizon II hereby objects to any additional or different terms contained in any document supplied by Vendor. Any acceptance of any offer by Vendor effected by this document is expressly conditioned on Vendor’s assent to all additional and different terms contained herein. Vendor’s commencement of performance hereof with the consent of Horizon II, shall in all cases constitute Vendor’s unqualified acceptance of the terms and conditions of Horizon II’s offer.
- TIME OF COMPLETION; EXTENSIONS.
(a) Vendor shall promptly commence the Work and shall complete the Work in its entirety on schedule. Vendor acknowledges that Horizon II may require completion of certain facilities, phases or subdivisions of the Work ahead of others, and Vendor shall diligently and expeditiously perform the Work in the sequence required by Horizon II.
(b) Failure to timely deliver the work shall not release Vendor from its obligation hereunder. Vendor shall be responsible for all actual damages to Horizon II that result from untimely delivery of the Work, including without limitation, liquidated and other damages incurred by Horizon II to its customers.
(c) If Vendor is delayed at any time in the performance of the Work by any act or neglect of Horizon II or by Horizon II’s issuance of any change notice and, if Vendor provides Horizon II with a written request for an extension of time within seven days of such event, Horizon II shall extend the time of completion by such reasonable time as Horizon II may determine.
- VENDOR’S COMPENSATION.
(a) For the strict performance of all of Vendor’s obligations under this Contract, Horizon II shall pay Vendor in accordance with the payment terms contained in the agreement to which these terms and conditions are attached or otherwise incorporated by reference.
(b) Notwithstanding anything in this Contract to the contrary, neither final payment nor any other payment to Vendor under this Contract shall (i) constitute final acceptance of the Work, (ii) be evidence of the satisfactory performance of the Work by Vendor, either in whole or in part, or (iii) relieve Vendor of any liability to Horizon II for Vendor’s breach of any of its obligations or warranties under this Contract.
- CHANGES IN THE WORK.
(a) Horizon II shall have the right to (i) make changes in any work performed or to be performed, (ii) require additional work or (iii) require the deletion of work previously ordered. The provisions of this Contract shall apply to all changed and added work with the same effect as if such work had been originally included in the Work.
(b) Horizon II shall furnish Vendor with a written change notice describing any changes, additions or deletions to the Work. Horizon II shall not be required to notify Vendor’s sureties of such changes, additions or deletions.
(c) If (i) Vendor believes that any change to the Work will increase its cost to perform the Work, (ii) the parties have not agreed in writing as to how such change is to affect Vendor’s compensation under this Contract prior to the time that Vendor has been directed to commence such changed work and (iii) the changed work was to have been performed on a lump sum basis, Vendor, upon request, shall be entitled to an equitable adjustment to the amount of compensation it is to receive under this Contract. Such request shall (i) be in writing, (ii) be submitted not later than 15 days following Vendor’s receipt of Horizon II’s written change notice and (iii) include detailed support for the requested adjustment. If within 30 days of Horizon II’s notice to change or delete such portion, the parties have not agreed in writing as to how such change or deletion is to affect Vendor’s compensation under this Contract, Vendor shall complete the changed work in accordance with the written change notice and the parties shall submit determination of Vendor’s compensation to binding arbitration in St. Louis, Missouri to a single arbitrator, who is knowledgeable with such work. Such arbitration shall otherwise be in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect at the time. The arbitrator’s fees shall be equally borne by both parties. Otherwise, each party shall bear its own expenses, including its attorneys’ fees. Notwithstanding the foregoing, Vendor shall not be entitled to any adjustment if it fails to submit its request within the required time period or if it fails to provide detailed written support for such adjustment.
(d) No change, addition or deletion ordered by Horizon II in accordance with this section shall be deemed to be a termination of this Contract, either in whole or in part.
- EXAMINATION OF WORKSITE, SPECIFICATIONS, DRAWINGS AND OTHER DOCUMENTS.
(a) Vendor certifies that it has thoroughly examined the Specifications, Drawings and other documents pertaining to the Work, or has had full opportunity to do so, and has satisfied itself that it fully understands the facilities, difficulties and restrictions involved with the performance of the Work.
(b) Vendor shall not assert any failure to receive or examine any form, instrument, drawing or other document to relieve itself from any obligation under this Contract.
(c) Vendor warrants and represents that where the Specifications and Drawings as to any part of the Work require a given result to be produced, the Specifications and Drawings are adequate and that Vendor is competent to produce the required result. Vendor shall not make any claim for any additional compensation because of actual or alleged difficulties in the production of the required results.
- LICENSES, PERMITS AND NOTICES.
(a) Except as otherwise provided in this Contract, Vendor shall obtain and pay for all required consents, approvals, licenses and permits and shall give all required notices.
(b) If Vendor observes that the Specifications or Drawings are or may be at variance with any applicable statute, law, ordinance, code, order, rule, regulation, proclamation or other governmental requirement, Vendor shall promptly give Horizon II written notice. If Vendor fails to give such notice, Vendor shall bear all costs and expenses arising from such failure without reimbursement from Horizon II.
- VENDOR’S AND HORIZON II’S REPRESENTATIVES.
(a) Vendor and Horizon II shall each designate a representative by written notice to the other party. Vendor’s representative shall (i) be acceptable to Horizon II, (ii) be at the worksite at all times during the performance of the Work and (iii) have authority to act for Vendor in all matters pertaining to the extent of exercising Horizon II’s general supervisory rights under this Contract and issuing written change notices in accordance with section 4. Horizon II’s representative shall have no authority to modify or amend this Contract. Vendor shall not change its designated representative unless it gives prior written notice to Horizon II.
(b) Vendor shall not in any way be relieved of its responsibility for the proper supervision and performance of the Work in strict accordance with the terms of this Contract as a result of (i) any general supervision by Horizon II or (ii) any assistance which Horizon II may render to Vendor or to any of its subcontractors in connection with the Work.
- VENDOR, ITS EMPLOYEES AND SUBCONTRACTOR. Vendor is and shall be an independent contractor in the performance of the Work and, except as otherwise provided in this Contract, shall not be or hold itself out as an agent of Horizon II. Vendor shall have the right to hire or discharge its employees and designate their work classifications. Vendor shall have complete charge and control of its employees and those of its subcontractors engaged in the performance of the Work. Vendor shall maintain strict discipline and order among its employees and employees of its subcontractors. Vendor shall not engage unqualified subcontractors nor employ unfit persons nor anyone unskilled in the work assigned. Horizon II reserves the right to have Vendor remove any employees of Vendor or Vendor’s subcontractors from performing any services on the Work when, in Horizon II’s sole opinion, such action is warranted.
- ASSIGNMENTS AND SUBCONTRACTS.
(a) Vendor shall not, without Horizon II’s prior written consent, assign this Contract or any payments due to Vendor under this Contract or subcontract for the performance of any of the Work. Subject to the foregoing, this Contract shall be binding upon, and shall inure to the benefit of, the successors and permitted assigns of Horizon II and Vendor.
(b) Unless Horizon II agrees in writing to release Vendor, Horizon II’s written consent to any assignment or subcontract shall not relieve Vendor from any of its obligations under this Contract.
- c) Vendor shall be as fully responsible to Horizon II for the acts and omissions of its subcontractors and of persons either directly or indirectly employed by them as it is for its own acts and omissions.
(d) All subcontracts shall contain a provision permitting assignment thereof to Horizon II.
(e) Vendor shall supervise and be responsible for the coordination and proper performance of all work of its subcontractors.
(f) Vendor shall require each of its subcontractors, to the extent of the Work to be performed by such subcontractor, to be bound to Vendor by the terms of this Contract and to assume towards Vendor all the obligations and responsibilities which Vendor assumes towards Horizon II under this Contract.
(g) Neither this Contract nor any subcontract entered into by Vendor shall create any contractual relationship between any subcontractor and Horizon II, nor any liability of Horizon II to a subcontractor.
(h) Horizon II shall have the right to require Vendor to terminate any of Vendor’s subcontractors and to require that any of Vendor’s subcontractors promptly vacate the worksite.
- SEPARATE CONTRACTS.
(a) Horizon II reserves the right to let other contracts in connection with the Work or other related work, including, but not limited to, the right to perform the Work or any portion thereof with its own employees or through other contractors if this Contract or any portion thereof is terminated.
(b) Horizon II’s representative shall coordinate the work to be performed by Vendor with the work to be performed at the worksite by others.
(c) If any of the Work depends for proper performance or results upon the work of any other contractor, Vendor shall inspect such work and promptly report to Horizon II any apparent discrepancies or defects in such work that render it unsuitable for proper performance and results. Vendor’s failure to report any such apparent discrepancies or defects shall constitute an acceptance of the other contractor’s work as fit and proper to receive the Work.
(d) Should Vendor or any of its subcontractors cause damage to the work or property of any other contractor or of any of its subcontractors, Vendor shall, upon notice from Horizon II, settle with such other contractor or subcontractor by agreement or arbitration if such other contractor or subcontractor is willing to settle. If such other contractor or subcontractor sues Horizon II or initiates an arbitration proceeding on account of any such damage, Horizon II shall notify Vendor, in which case (i) Vendor shall defend Horizon II in such proceeding at Vendor’s expense, or, if Horizon II elects to handle its own defense, Vendor shall promptly reimburse Horizon II for all of Horizon II’s attorneys’ fees and costs and expenses of defense and (ii) Vendor shall pay or satisfy any judgment or award against Horizon II.
- LABOR.
(a) Subject to and without affecting Horizon II’s rights under Sections 30 and 32(f) hereof, Vendor shall employ its best efforts to avoid, minimize and resolve strikes, work stoppages or other disturbances which affect the performance of the Work or any operations or other work at the facility where the Work is being performed.
(b) Vendor shall resolve all disputes as to jurisdiction of trades arising at the worksite in accordance with any plan for the settlement of jurisdictional disputes which may be in effect either nationally or in the locality in which the Work is being performed; provided, however, that this section 11(b) shall not apply if such plan is in conflict with or violates any provision of law applicable to the settlement of such disputes.
- HORIZON II’S RIGHT TO OCCUPY OR USE THE WORK BEFORE COMPLETION.
(a) At any time during the performance of the Work, Horizon II shall have the right to enter upon the worksite and to authorize other contractors of Horizon II to enter upon the worksite. Horizon II shall endeavor not to exercise such right so as to unreasonably delay Vendor’s performance of the Work.
(b) If Horizon II deems it necessary to perform testing or start‑up operations, Horizon II shall have the right to occupy part or all of the Work, whether or not complete, for the purpose of performing such operations. If Horizon II exercises such right, Vendor shall schedule, coordinate and perform the Work so as not to interfere with such operations.
(c) Notwithstanding anything in this Contract to the contrary, neither partial nor entire use or occupancy of the Work by Horizon II prior to final written acceptance of the Work by Horizon II shall (i) constitute final acceptance of the Work, (ii) be evidence of the satisfactory performance of the Work by Vendor or (iii) relieve Vendor of any liability to Horizon II for Vendor’s breach of any of its obligations or warranties under this Contract.
- HORIZON II’S SPECIFICATIONS AND DRAWINGS.
(a) Horizon II shall furnish Vendor with sufficient copies of all Specifications and Drawings reasonably necessary for the performance of the Work, and Vendor shall keep at least one complete set of the Specifications and Drawings at the worksite at all times. Such set shall be (i) maintained by Vendor in good condition, (ii) available for Horizon II’s inspection at any time, and (iii) promptly marked by Vendor to reflect as‑built conditions.
(b) If anything is mentioned in the Specifications but is not shown in the Drawings, or if anything is shown in the Drawings but is not mentioned in the Specifications, the effect shall be as if it had been mentioned in the Specifications and shown in the Drawings. In the event of any inconsistencies between the Specifications and Drawings, the Specifications shall govern unless, after being notified by Vendor of any such inconsistencies, Horizon II directs otherwise. Vendor shall not be relieved from performing details which are omitted from or misdescribed in the Specifications and Drawings if such details are evidently necessary to carry out the intent of the Specifications and Drawings or are customarily performed. Such details shall be performed as if fully set forth and described in the Specifications and Drawings. Detail Drawings shall take precedence over layout Drawings. Parts of the Work that are not particularly detailed, marked or specified shall be performed in the same manner as similar parts that are detailed, marked or specified.
(c) Vendor shall promptly give Horizon II written notice of any errors, discrepancies or inconsistencies which Vendor observed in the Specifications, Drawings or any work done by others which affects the Work, and Horizon II shall issue appropriate instructions to Vendor. If Vendor proceeds with any work affected by such errors, discrepancies or inconsistencies prior to receipt of Horizon II’s instructions, Vendor shall, at its expense, make good any resulting damage or defects.
(d) Vendor shall compare all Drawings and verify the accuracy of dimensions before laying out the Work. When measurements are affected by conditions already established, Vendor shall take physical measurements notwithstanding the presence of scale or figure dimensions on the Drawings. If Vendor has knowledge that the Specifications and Drawings show variations from standard shop practices, Vendor shall give Horizon II notice of such variations and shall not perform any work affected by such variations without Horizon II’s approval.
(e) Except for the purpose of performing the Work, Vendor shall not, without Horizon II’s prior written consent, disclose or make copies of any designs, Specifications, Drawings or similar data or documents received by it from Horizon II.
(f) The Specifications and Drawings and any other technical documents provided by or for Horizon II to Vendor or any of its subcontractors shall (i) remain the property of Horizon II, (ii) not be copied, in whole or in part, except in connection with the performance of the Work, and (iii) be returned to Horizon II, together with any copies thereof, upon completion or termination of this Contract. Things prepared from documents covered by the preceding sentence (including, but not limited to, models, patterns, jigs, fixtures, dies, molds, and samples) shall be and shall remain Horizon II’s property and shall be delivered to Horizon II upon completion or termination of this Contract, unless otherwise directed by Horizon II.
(g) Copies of documents that may be relied upon by Vendor are limited to the printed copies (also known as hard copies) that are signed by Horizon II. Files in electronic media format or text, data, graphic or other types that are furnished by Horizon II to Vendor are only for convenience of Vendor. Any conclusion or information obtained or derived from such electronic files will be at the user’s sole risk. When transferring documents in electronic media format, Horizon II makes no representations as to long-term compatability, usability or readability of documents resulting from the use of software application packages, operating systems or computer hardware differing from those in use by Horizon II at the beginning of this assignment.
- VENDOR’S DRAWINGS AND SPECIFICATIONS.
(a) Vendor shall furnish Horizon II with sufficient copies of all Specifications and Drawings prepared by or on behalf of Vendor in connection with this Contract. Vendor shall keep at least one complete set of such specifications and drawings at the worksite at all times. Such sets shall be maintained in good condition and shall be available for Horizon II’s inspection at any time. Vendor shall mark such specifications and drawings to reflect as‑built conditions. Upon completion of the Work or any termination of this Contract, Vendor shall deliver two complete sets of as‑built drawings to Horizon II.
(b) All general layout drawings (including, but not limited to, equipment arrangements in plan and in elevation), electrical schematics, piping and instrumentation diagrams, anchor bolt details and shop drawings of any fabricated work or equipment shall be submitted to Horizon II for review. Work fabricated or installed prior to such review shall be at Vendor’s risk. Vendor shall submit all such drawings sufficiently in advance of requirements to allow ample time of (i) checking by Horizon II and (ii) any correcting by Vendor, resubmittal to Horizon II or rechecking by Horizon II which may be necessary, and no additional compensation or extension of time shall be granted if Vendor incurs additional costs or delays in the performance of the Work as a result of its failure to comply with this requirement. All drawings submitted by Vendor for Horizon II’s review shall bear Vendor’s stamp showing that such drawings have been checked and approved by Vendor. Drawings submitted without such stamp shall not be considered and shall be returned to Vendor for resubmission. Horizon II’s review of drawings shall be general and shall not relieve Vendor from (i) responsibility for the accuracy, adequacy and completeness of the drawings and work performed in accordance with the drawings or (ii) any of its duties or responsibilities under this Contract. If corrections are required, Vendor shall resubmit the drawings and other pertinent data with corrections made.
(c) Vendor shall also submit a copy of all drawings to Horizon II simultaneously with their release by Vendor for use in fabrication, purchase or construction. Vendor shall give written notice to Horizon II of any inconsistencies between drawings reviewed by Horizon II and standard shop practices.
(d) Title to all specifications, drawings and other technical documents prepared by or for Vendor or any of its subcontractors in connection with the performance of the Work shall vest in Horizon II. Vendor shall ensure that such documents are accurate and kept up to date and shall deliver them to Horizon II in good form and condition upon completion or termination of this Contract.
- OVERTIME.
(a) Horizon II shall not be obligated to pay Vendor any additional compensation for any overtime worked by Vendor or its subcontractors unless Horizon II (i) so agrees in writing prior to the performance of such overtime work or (ii) directs the performance of such overtime work in accordance with section 15(b).
(b) Vendor shall perform any overtime work directed in writing by Horizon II. If this is a lump sum contract or if Vendor is to be compensated for the portion of the Work to which such overtime work relates on a lump sum basis, Horizon II shall reimburse Vendor for (i) the premium portion of the hourly wages paid in connection with such overtime work and (ii) all taxes, insurances and established benefits applicable to such premium portion; provided, however, that Horizon II shall not be obligated to reimburse Vendor if, in Horizon II’s reasonable opinion, such overtime work is required for the timely performance of the Work. If this is not a lump sum contract and if Vendor is not to be compensated for the portion of the Work to which such overtime work relates on a lump sum basis, Horizon II shall reimburse Vendor for such overtime work in accordance with Exhibit A; provided, however, that, if Exhibit A does not specify how Vendor is to be reimbursed for overtime work, Horizon II shall pay an amount agreed to by the parties.
- MATERIALS AND WORKMANSHIP.
(a) Vendor shall perform its obligations hereunder so that the Work conforms strictly to requirements of the Contract. The Work shall conform to the generally accepted standards of the trades involved, except where more stringent standards have been specified by Horizon II, in which case the Work shall conform to such more stringent standards. Vendor shall fabricate, work, fit and furnish all materials and erect or install them in the Work and fit them to other work as may be required in a first class, workmanlike manner.
(b) Vendor shall use only skilled craftspersons who are experienced in their respective trades and the types of work involved. Vendor shall furnish adequate and efficient supervision and keep an adequate supply of workers and materials on the Work at all times and shall perform the Work in the most expeditious manner.
(c) Whenever any material, apparatus, equipment or process is indicated or specified by patent number, proprietary name or by the name of the manufacturer, the number or name so indicated or specified shall be deemed to be used for the purpose of facilitating the description of the item desired. Upon prior written notice given to Horizon II, Vendor may offer any material, apparatus, equipment or process which it considers equal in every respect to the item indicated or specified; provided, however, that if the materials, apparatus, equipment or process offered by Vendor is not, in Horizon II’s opinion, substantially equal in every respect to the indicated or specified item, Vendor shall furnish the material, apparatus, equipment or process that was indicated or specified or one which, in Horizon II’s opinion, is the substantial equal thereof. Any materials, apparatus, equipment or process substituted by Vendor without Horizon II’s approval shall be subject to subsequent rejection, in which case it shall be replaced by Vendor at no cost to Horizon II.
- SCHEDULES. Upon Horizon II’s request, Vendor shall promptly deliver to Horizon II (i) a schedule showing the proposed dates of commencement and completion of each of the various phases and subdivision of the Work and (ii) statements and reports, in the format specified by Horizon II, showing the status and progress of, and forecasts for, the Work.
- INSPECTION.
(a) Horizon II shall at all times have access to and the right to inspect the Work, and Vendor shall provide proper facilities for such access and inspection. Such access shall include, but shall not be limited to, access, by prior arrangement, to vendors, manufacturers, workshops, fabricators and testing facilities of Vendor or its subcontractors in the performance of the Work.
(b) All materials, equipment and work shall be subject to inspection and test by Horizon II and its customers. If the Specifications, Horizon II’s instructions or any governmental authority require special inspections, tests or approvals, Vendor shall give Horizon II timely notice of readiness for inspection. If inspections or tests are to be made by anyone other than Horizon II, Vendor shall give Horizon II sufficient notice of the date fixed for each such inspection to give Horizon II reasonable opportunity to be present. Vendor shall promptly furnish all materials necessary for inspections and tests. No materials, equipment or work which are required to be inspected, tested or approved shall be covered until after such inspection, test or approval has been accomplished.
(c) If any work is covered without Horizon II’s prior approval or consent, Vendor shall, if required by Horizon II, uncover such work for examination. With respect to such work, Vendor shall bear the costs of (i) the uncovering, (ii) any necessary correction or replacement and (iii) the recovering.
(d) If Horizon II wishes to reexamine any work already completed, Vendor shall uncover such work. If such uncovered work is found to have been done in accordance with this Contract, Horizon II shall pay the costs of the uncovering, reexamination, replacement and recovering of such work. If such uncovered work is found to have been done not in accordance with this Contract, Vendor shall pay the costs of uncovering, reexamination, replacement and recovering; provided, however, that, if Vendor can show that all of the defective or faulty work was caused by other contractors, other than Vendor’s subcontractors, Horizon II shall pay such costs.
(e) If, in Horizon II’s opinion, any of the work, materials or equipment, whether or not incorporated in the Work, are faulty or inadequate, Vendor shall, at its expense, promptly (i) remove such work, materials or equipment from the worksite, (ii) replace and reconstruct its own work in accordance with this Contract and (iii) make good any work of other contractors that was destroyed or damaged as a result of such removal or replacement. If Vendor fails to take diligent steps to correct defective or faulty work after receipt of written notice from Horizon II, Horizon II may, at its option, correct such work and charge the costs of such corrections to Vendor.
- FINAL ACCEPTANCE.
(a) When Vendor deems the Work completed, Vendor shall give Horizon II written notice thereof. Within 30 days after receipt of such notice, or within such longer time period as is reasonable under the circumstances, Horizon II shall determine whether the Work has been completed in strict accordance with this Contract. If it has, Horizon II shall advise Vendor in writing of its final acceptance thereof. If the Work has not been completed in strict accordance with this Contract, Horizon II shall notify Vendor of the defects, and Vendor shall promptly correct such defects. The aforesaid procedure shall be repeated until the Work has been completed in strict accordance with this Contract.
(b) Notwithstanding anything in this Contract to the contrary, final acceptance of the Work shall not relieve Vendor of any liability to Horizon II for Vendor’s breach of any of its obligations or warranties under this Contract.
- WARRANTY. The Work shall strictly conform to the requirements of this Contract. Vendor warrants that all materials and equipment furnished under this Contract shall (i) be new, except as otherwise provided in this Contract, (ii) be free from defects in design, workmanship and materials and (iii) conform to generally recognized commercial standards of quality and fitness for the intended use of the Work. Vendor further warrants that all Work shall be of good quality, free from faults or defects and in conformance with this Contract. If requested by Horizon II, Vendor shall furnish satisfactory evidence as to the kind and quality of materials and workmanship. Vendor shall, at its expense, remedy any defects in the Work and any damage to work performed by others resulting from defective material, equipment or supplies or from faulty workmanship which are discovered within the one‑year period that commences with Horizon II’s final acceptance of the Work. If Vendor fails to correct such defects or damage promptly after being notified by Horizon II, Horizon II may, at its option, have such defects or damage corrected and charge the costs of such corrections to Vendor.
- SECURITY INTERESTS; LIENS.
(a) Vendor shall keep any and all personal property of Horizon II and Horizon II’s customers and deliver the Work free and clear of any and all security interests, liens, claims and encumbrances of any kind or nature arising out of or resulting from the performance of the Work by Vendor or the delivery of any such personal property to the premises of Vendor as contemplated by the Work. If any such lien, claim, security interest or encumbrance is filed, Vendor shall promptly cause it to be removed without cost to Horizon II. Vendor shall protect, defend and indemnify Horizon II, Horizon II’s affiliates and the directors, officers, employees, agents and representatives of Horizon II and Horizon II’s affiliates from and against any and all claims, losses, damages, costs, actions, judgments, expenses and liabilities of every kind and nature whatsoever (including, but not limited to, attorneys’ fees and costs and expenses of the preceding) which, either directly or indirectly, arise out of or result from such liens, claims or encumbrances. As to any party, the term “affiliates” means any corporation, partnership, trust or other entity controlling, controlled by or under the common control of such party.
(b) In the event this Contract is terminated for any reason, or in the event of the insolvency, assignment of the Vendor’s assets for the benefit of its creditors, or the filing of any bankruptcy petition by Vendor or its creditors, then in any such event Vendor will immediately notify Horizon II of such occurrence and release the equipment and materials owned by Horizon II and its customers in the possession of the Vendor and the then completed Work to Horizon II or as designated by Horizon II.
(c) The Vendor shall keep the then completed Work and the equipment and materials owned by Horizon II and its customers in the possession of the Vendor fully insured at full replacement value against all losses and contingencies, including without limitation, losses from theft and damage from wind, fire, rain, flood, or the elements.
- PROTECTIVE AND SAFETY MEASURES.
(a) Until Horizon II’s final acceptance of the Work, Vendor shall take all reasonable precautions (i) for the safety of the public and all employees and other persons at the worksite and (ii) for preventing damage to property in connection with the performance of the Work.
- INDEMNITY.
(a) Vendor shall protect, defend and indemnify Horizon II, Horizon II’s affiliates and the directors, officers, employees, agents and representative of Horizon II and its affiliates from and against any and all claims, losses, damages, costs, actions, judgments, expenses and liabilities of every kind and nature whatsoever (including, but not limited to, attorneys’ fees and costs and expenses of defense), which, either directly or indirectly, are in any way connected with, arise out of or result from the performance of the Work or Vendor’s actual or alleged breach of its obligations or warranties under this Contract including, but not limited to, actual or alleged bodily injury (including death) or loss or damage to any property arising out of or resulting from any act or omission, negligent or otherwise, on the part of Vendor, Vendor’s subcontractors or any of their officers, employees, agents or representatives.
(b) The provisions of Section 23(a) shall not apply to the extent that the damage, injury or loss was caused or contributed to by the gross negligence or breach of any statutory duty, whether delegable or otherwise, on the part of Horizon II, its affiliates or their officers, employees, agents or representative, of any liability therefor imputed as a matter of law to Horizon II, its affiliates or their officers, employees, agents or representatives. A portion of the price to be paid to Vendor by Horizon II for the Work is a consideration for Vendor’s assumption of liability and Vendor’s indemnity obligations under this Contract.
(c) If the provisions of section 23(b) are unenforceable under applicable law, the parties agree that (i) section 23(b) is separable and severable from section 23(a) and from all other provisions of the Contract, (ii) section 23(b) does not constitute the main or essential feature of this Contract and (iii) the obligations of indemnification assumed by Vendor under section 23(a) shall remain in full force and effect. Sections 23(a), 23(b) and 23(c) shall be interpreted and applied to conform in all respects with applicable law.
- INSURANCE.
(a) Vendor shall not commence performance of the Work until it has furnished Horizon II with certificates of insurance satisfactory to Horizon II certifying that valid insurance policies are in effect and will remain in effect until the Work has been fully performed and accepted. Such policies shall provide for (i) Worker’s Compensation insurance in statutory limits, unless Vendor provides evidence satisfactory to Horizon II of being a qualified self‑insurer, (ii) Employer’s Liability insurance with limits of $500,000 each accident, $500,000 disease – each employee, $500,000 disease – policy limit; (iii) Commercial General Liability insurance (including, but not limited to, coverage for Broad Form Property Damage, Contractual Liability, Personal Injury and Explosion, Collapse and Underground Utilities) with a combined single limit of liability of not less than $1,000,000 per occurrence, $2,000,000 – aggregate, for bodily injury and property damage, (iv) Commercial Automobile Liability including hired and non-owned autos with combined single limit of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, and (v) Excess Liability insurance with limits of $4,000,000 – each occurrence, $4,000,000 – aggregate coverage, and (vi) if this purchase order is for services, Professional Liability insurance with limits of $1,000,000 each claim, $1,000,000 aggregate, and (vii) if vendor will have Horizon II or their customers’ equipment under their care and custody, All Risk Property Coverage of Others Insurance with limits as specified by Horizon II, and such additional coverage as may be required by Horizon II.
(b) Except for the Worker’s Compensation insurance, Horizon II, such affiliates of Horizon II as Horizon II designates and their director, officers and employees shall be named as additional insured in all of the foregoing insurance policies on a primary & non-contributory basis, and will include a waiver of subrogation unless prohibited by law; with a statement to that effect set forth in the certificates of insurance furnished to Horizon II. Such certificates of insurance shall provide for 30 days’ written notice to Horizon II of any cancellation, termination or material change in coverage.
(c) The aforesaid insurance coverage is intended to protect Horizon II, its affiliates and their directors, officers and employees against any and all claims, losses, damages, costs, actions, judgments, expenses and liabilities which, either directly or indirectly, are in any way connected with, arise out of or result from the performance of the Work, wherever such may occur. If Vendor utilizes subcontractors in the performance of the Work, Vendor shall ensure that all such subcontractors have obtained the insurance coverage and endorsements required to be obtained by Vendor and that certificates of insurance evidencing such coverage and endorsements have been furnished to Horizon II before any such subcontractor enters the worksite.
- BONDS. Upon Horizon II’s request, Vendor shall furnish performance and payments bonds satisfactory in form and amount to Horizon II. Such bonds shall cover Vendor’s faithful performance of the Work and Vendor’s payment of all of its obligations to third parties in connection with the Work. Such bonds shall be with such sureties as Horizon II may approve.
- TAXES. Vendor shall pay suppliers for all sales and use taxes on equipment, materials, and all other personal property used or purchased for use in connection with the Work. Vendor shall also pay all occupational, business, excise and other taxes levied or imposed upon Vendor, Vendor’s business or the performance of the Work.
- INTELLECTUAL PROPERTY.
(a) The term “intellectual property right” means any right pertaining to a patent, trademark, copyright, trade secret, or the like. An intellectual property right shall be deemed infringed by the Work if the right is infringed by (i) the performance of the Work, (ii) making one or more things in accordance with a specification, drawing or other technical document furnished by Vendor or one of its subcontractors in connection with the Work, (iii) using or selling such thing or things or (iv) using or selling one or more things furnished in connection with the Work.
(b) Vendor warrants that, to the best of its knowledge, there is no intellectual property right that will be infringed by the Work or will require Horizon II to pay a royalty. Vendor further warrants that, to the best of its knowledge, there has been no claim that such infringement will occur. If Vendor becomes aware of any such intellectual property right or claim, Vendor shall promptly advise Horizon II to that effect. Vendor’s warranty shall not apply to the Drawings or Specifications prepared or furnished by Horizon II.
(c) Vendor shall indemnify and defend Horizon II against any claim that the Work infringes any intellectual property right or requires Horizon II to pay a royalty. Horizon II shall promptly notify Vendor of claims of such infringement and shall cooperate with Vendor at Vendor’s expense, in defending against or otherwise resolving them. If at any time Vendor believes that the Work or the performance thereof should be modified so as to avoid such claimed infringement and that the modification will not be detrimental to Horizon II, it shall give Horizon II written notice proposing and specifying the modifications, explaining how they would avoid infringement and offering to pay for them. If Horizon II agrees that the proposed modifications will not be detrimental to it, which agreement shall not be unreasonably withheld, Horizon II, at its option, shall either (i) have them made at Vendor’s expense or (ii) release Vendor from its obligations under this section 27(c) to the extent such obligations would have been reduced by the proposed modifications. This section 27(c) shall not apply to infringement resulting primarily from adherence to Drawings, Specifications or other technical documents, or from use or sale of one or more things furnished by Horizon II in connection with the Work, if the subject matter adhered to was arrived at independently of Vendor and its subcontractors.
(d) All purchase orders and contracts entered into by Vendor or its subcontractors for the purchase of any materials, supplies, equipment, machinery, apparatus, services or anything else in connection with the Work shall contain the following provision or the equivalent:
INTELLECTUAL PROPERTY: (Seller) shall indemnify and defend (Horizon II) against any claims that the goods or services furnished by (Seller) hereunder infringe any patent, trademark, copyright, trade secret, or other intellectual property right.
(e) Horizon II shall own all intellectual property rights pertaining to the intellectual property which is originated or developed by Vendor or any of its subcontractors in the performance of the Work. Vendor shall promptly and fully disclose all such intellectual property to Horizon II, shall execute all documents Horizon II reasonably deems necessary to confirm Horizon II’s ownership of the intellectual property rights or to obtain patents and copyrights for the intellectual property rights, and shall cooperate with Horizon II, at Horizon II’s request and expense, in obtaining and enforcing such patents and copyrights.
- TITLE AND RISK OF LOSS.
(a) Vendor shall bear the risk of loss to the Work until the later of (i) the delivery of the Work to the jobsite of Horizon II’s customer, or (ii) final aceptance of the Work by Horizon II. Title to the Work shall pass at the earlier of (i) delivery of the Work pursuant to Section 21(b), or (ii) the later of (a) delivery of the Work to the jobsite or (b) final acceptance of the Work by Horizon II. Vendor shall obtain and deliver to Horizon II all documents Horizon II deems necessary to confirm title in Horizon II.
(b) Vendor warrants good title to all equipment, tools, materials and supplies which are furnished by or on behalf of Vendor and which are consumed or incorporated in the Work.
- RECORDS AND AUDITS. Vendor shall keep the necessary records and books of account to document fully any costs that are reimbursable to Vendor under this Contract. Vendor shall keep such other records and books of account as Horizon II may reasonably require. Such records and books of account shall be subject to audit by Horizon II and Horizon II’s representatives and shall show the actual cost to Vendor of all items of labor, material, equipment, supplies, services and other expenditures of whatever nature for which reimbursement is authorized under this Contract. Horizon II and its representatives shall have access at all reasonable times to Vendor’s books, records, payrolls, personnel records, correspondence, instructions, conditions of employment, plans, drawings, receipts, invoices and memoranda of every description pertaining to work done. Vendor shall preserve such items without additional compensation therefor for a period of three years after the completion or termination of this Contract. Upon completion of the Work, Vendor shall submit such cost reports and other data as may be required by Horizon II to establish Horizon II’s cost basis for all phases and subdivisions of the Work.
- FORCE MAJEURE. Except as otherwise provided in this Contract, neither party shall be liable for failure or delay in the performance of its obligations under this Contract due in whole or in part to causes such as an act of God, strike, work delay or stoppage, civil commotion, sabotage, fire, flood, explosion, acts of any government, unforeseen shortages or unavailability of fuel, power, transportation, raw materials or supplies, inability to obtain or delay in obtaining governmental approvals, permits, licenses or allocations, and any other causes which are not within such party’s reasonable control, whether or not the kind specifically enumerated above; provided that the party whose performance is affected thereby shall have given notice and reasonably full particulars in writing to the other party within seven days of the affected party’s knowledge of the occurrence of such cause. Included in such notice shall be the affected party’s best estimate of the anticipated duration of the delay, and the affected party shall give the other party written notice immediately upon any changes in the anticipated duration. To the extent that they are affected by such cause, the obligations of the party giving such notice shall be suspended during the period of any such inability to perform, but for no longer period; provided, however, that no adjustment shall be made to the time for the completion of this Contract to the extent that Vendor’s performance would have otherwise been delayed by any other cause, including, but not limited to, the default or negligence of Vendor. The party whose performance is affected shall, so far as possible, remedy the cause of the delay with all reasonable dispatch; provided, however, that a party having labor difficulty shall not be required to settle strikes or lockouts by acceding to the demands of the opposing party when such course is, in the opinion of the party having the difficulty, inadvisable. In the event Horizon II reasonably believes that Vendor will not be able to complete the Work within a reasonable period of time as a result of such cause beyond Vendor’s control, Horizon II may in its sole discretion transfer or assign completion of all or a portion of the Work to another person. In such event, and in accordance with Section 32(f), herein, Vendor shall cooperate to effect such transfer or assignment and shall receive equitable compensation for services and materials furnished to such date.
- DEFAULT.
(a) The existence of any of the following circumstances shall constitute a default by Vendor under this Contract and shall entitle Horizon II to terminate this Contract immediately upon written notice to Vendor:
(1) Horizon II’s belief that the Work will not be completed in a timely manner due to the failure of Vendor to make sufficient progress in the performance of the Work;
(2) Vendor’s failure to comply strictly with any of the provisions of this Contract;
(3) Vendor’s failure for 30 days to pay amounts due to any subcontractors or suppliers for material or services after such amounts are due;
(4) Vendor’s insolvency or inability to pay its debts as they become due, Vendor’s failure to promptly provide Horizon II with adequate written assurances of its ability to perform upon written request of assurances by Horizon II, or Vendor’s commission of any act of bankruptcy of the appointment of a trustee or receiver to participate in the management of Vendor’s business;
(5) Vendor’s disregarding of any applicable statute, law, ordinance, code, order, rule, regulation, proclamation or other governmental requirement;
(6) Vendor’s failure in any manner to perform the Work strictly in accordance with this Contract or to correct defects in the work within such period as Horizon II may reasonably provide in Horizon II’s written notice to Vendor stating such failure. Such notice shall precede and be in addition to the notice provided for in Section 31(c).
(b) In the event of termination for default, Vendor shall be and shall remain liable to Horizon II for all loss and damage which Horizon II may suffer by reason of such default and for any breaches by Vendor of its obligations or warranties under this Contract. Termination for default shall not affect any other rights and remedies which Horizon II may have because of the stated default or any other failure of performance under, or breach of, this Contract.
(c) Termination for default shall be effected by written notice from Horizon II stating the circumstances of default and the date upon which Horizon II intends to complete the removal from the worksite of the Work in its current state. Vendor agrees to cooperate and assist Horizon II in the removal of the Work in its then state.
(d) Other than the final settlement of Vendor’s claims in accordance with section 32(f), Horizon II shall have no liability or obligation whatsoever to Vendor by reason of or resulting from termination for default. If it is subsequently determined that Vendor was not in default or that its failure strictly to perform this Contract was due to causes beyond its control and without its fault or negligence, the termination shall be deemed to have been for the convenience of Horizon II, and Horizon II’s sole obligation or liability to Vendor shall be to settle with Vendor in accordance with section 32(e).
- TERMINATION.
(a) Vendor may terminate this Contract:
(1) upon 10 days’ prior written notice to Horizon II should the Work be stopped under an order of any court or other governmental authority for a period of at least 90 days through no act or fault of Vendor, its subcontractors or any of their employees;
(2) upon written notice to Horizon II if (i) Horizon II failed to make any payment to Vendor, except for a payment as to which a good faith dispute exists, within 30 days after it is due, (ii) Vendor then gave Horizon II written notice of such failure and requested that it be remedied and (iii) Horizon II failed to remedy such failure within seven days of its receipt of such notice; or
(3) upon written notice to Horizon II if the duration of any suspension of the Work in accordance with section 33(a) exceeds one year.
(b) Horizon II shall have the right to terminate this Contract at any time for any reason upon written notice to Vendor. Such notice shall specify the date upon which such termination shall be effective. Horizon II’s right of termination shall be without prejudice to any claims or other rights which Horizon II may have against Vendor by operation of law or otherwise and shall not be in lieu of or in limitation of Horizon II’s right to require the deletion of any part of the work in accordance with section 4. Upon receipt of such notice, Vendor shall, unless the notice directs otherwise, (i) immediately discontinue the Work and the placing of orders for materials, equipment and supplies in connection with the performance of this Contract, (ii) make every reasonable effort to terminate all existing commitments in connection with the Work upon terms satisfactory to Horizon II, if so requested by Horizon II and (iii) thereafter do only such work as Horizon II may request or as may be necessary to preserve and protect work already in progress, Horizon II’s property, or materials or equipment at the worksite or in transit to it and (iv) cooperate and assist Horizon II in the transfer and removal of the Work in its then state as directed by Horizon II.
(c) Upon any termination of this Contract, Horizon II may, at its option, enter the worksite for any and all purposes, including, but not limited to, the completion of the Work. If such termination is due to the default of Vendor, Horizon II may, at its option, take possession of and utilize in the completion of the Work, any or all of Vendor’s equipment engaged in the Work, whether such equipment is owned or rented by Vendor and whether it is located at the worksite or elsewhere.
(d) Upon any termination of this Contract, Vendor shall deliver to Horizon II all Information (as defined hereinafter) and all other specifications, drawings, plans, maps, calculations, bills of materials and other documents pertaining to the Work which are in Vendor’s possession. Vendor shall cooperate with Horizon II in transferring to Horizon II all rights to equipment, materials, supplies and services procured for the performance of, or to be incorporated in, the Work. If appropriate documentation of such transfer of rights is requested by Horizon II, Vendor shall promptly execute such documentation prepared and presented by Horizon II and Vendor’s execution of such documentation shall be a condition of final payment by Horizon II.
(e) Upon any termination of this Contract, other than termination due to the default of Vendor, final settlement of all claims of Vendor arising out of this Contract shall be made as follows:
(1) Horizon II shall assume and become liable for Vendor’s obligations with respect to undelivered materials, supplies, equipment and unperformed services that Vendor may have theretofore in good faith undertaken or incurred in connection with the Work prior to receiving the notice of termination.
(2) If this is a lump sum contract, Horizon II shall pay Vendor an amount which, when added to any payments theretofore made to Vendor under this Contract, bears the same ratio to the total Contract price as the amount of the Work completed by Vendor prior to the effective date of termination bears to the total amount of the Work.
(3) If this is other than a lump sum contract, (i) Horizon II shall pay Vendor in accordance with Exhibit A for all work performed by Vendor prior to the effective date of termination and (ii) if any fixed fee is established in Exhibit A, Horizon II shall pay Vendor an amount which, when added to any partial payments of the fixed fee theretofore made to Vendor under this Contract, bears the same ratio to the fixed fee shown in Exhibit A as the amount of the Work completed by Vendor prior to the effective date of termination bears to the total amount of the Work.
(4) Horizon II shall also pay Vendor for any work performed after the effective date of termination to the extent that such work was requested by Horizon II or was necessary to preserve and protect (i) work already in progress, (ii) Horizon II’s property or (iii) materials or equipment at the worksite or in transit to it. The amount to be paid to Vendor for any such work performed after termination shall be Vendor’s documented direct costs for such work, plus an additional 10 percent for profit and overhead.
(f) If the termination of this Contract is due to the default of Vendor or as a result of strikes, lockouts, or other labor disputes, final settlement of all claims of Vendor arising out of this Contract shall be made as follows and no payments, other than any payments made in accordance with this section, shall be due until the Work has been fully completed:
(1) If this is not a lump sum contract, upon completion of the Work (i) Horizon II shall pay Vendor in accordance with Exhibit A for all work performed by Vendor prior to the effective date of termination and (ii) if any fixed fee is established in Exhibit A, Horizon II shall pay Vendor an amount which, when added to any partial payments of the fixed fee theretofore made to Vendor under this Contract, bears the same ratio to the fixed fee shown in Exhibit A as the amount of the Work completed by Vendor prior to the effective date of termination bears to the total amount of the Work.
(2) If this is a lump sum contract, upon completion of the Work Horizon II shall pay Vendor an amount which, when added to any payments theretofore made to Vendor under this Contract, bears the same ratio to the total Contract price as the amount of the Work completed by Vendor prior to the effective date of termination bears to the total amount of the Work; provided, however, that if Horizon II’s costs to complete the Work exceed the unpaid balance of the Contract price (taking into account all previous payments to Vendor), the Vendor shall be liable to Horizon II for such excess costs. Horizon II shall be entitled to deduct the amount of such excess costs from any amounts payable to Vendor under this Contract including, but not limited to, any amounts payable in accordance with this section.
(3) If Horizon II takes possession of Vendor’s equipment in accordance with section 32(c), Horizon II shall pay Vendor for the time such equipment is used by Horizon II. If applicable rental rates are not set forth in Exhibit A, the rental rates shall be determined by mutual agreement or, if the parties are unable to agree, the rental rates offered by unaffiliated third parties to Horizon II shall be based on rental rates in effect which such equipment is used by Horizon II.
(4) Horizon II may, at its option, assume and become liable for Vendor’s obligations with respect to any or all materials, supplies, equipment and unperformed services that Vendor may have theretofore in good faith undertaken or incurred in connection with the Work prior to receiving the notice of termination, regardless of whether such materials, supplies and equipment were delivered to the worksite prior to the date of termination.
(g) Horizon II’s right of termination under this section shall not be in lieu of or in limitation of Horizon II’s right to require the deletion of any part of the Work in accordance with section 4.
- SUSPENSION OF THE WORK.
(a) Horizon II may, at its option, suspend performance of the Work, in whole or in part, at any time upon written notice to Vendor. Such notice shall specify the date upon which such suspension shall be effective. Upon subsequent written notice from Horizon II, Vendor shall promptly resume the performance of the Work.
(b) Vendor’s activities subsequent to the effective date of suspension shall be confined to those necessary for an orderly suspension and to comply with the instructions in the suspension notice.
- WARRANTIES OF THIRD PARTIES. Unless otherwise agreed in writing by Horizon II, Vendor shall obtain from each vendor and manufacturer furnishing any material or equipment to be incorporated in the Work a warranty extending to Horizon II and Vendor that such materials and equipment shall (i) be new, except as otherwise provided in this Contract, (ii) be free from defects in design, workmanship and materials and (iii) conform to generally recognized standards of quality and fitness for purpose. Such warranty shall be for a period of not less than 24 months from the date of delivery or 12 months from the date of initial production service, whichever shall first occur. Unless otherwise agreed in writing by Horizon II, Vendor shall include each subcontract entered into under this Contract a warranty extending to Horizon II and Vendor against defects in design, workmanship or materials which are discovered during the one‑year period that commences on the date of acceptance of such subcontractor’s work and (ii) if the subcontractor fails to correct such defects promptly after receipt of notice from Horizon II of such defects, Horizon II may, at its option, correct such defects and charge the costs of such corrections to the subcontractor. Vendor shall assist Horizon II to the extent requested by Horizon II in the enforcement of such warranties.
- CLAIMS. Any claim of Vendor against Horizon II for an extension of time, extra compensation or damages shall be conclusively deemed to have been waived by Vendor, unless such claim is set forth in a written notice delivered to Horizon II with 30 days after the conditions upon which such claim is based become known to Vendor; provided, however, that if any other provision of this Contract establishes a shorter period of time for Vendor’s filing a claim, such shorter period of time shall apply to such claim. Such notice shall include itemized supporting data specifically identifying each and every element of cost that Vendor claims to have incurred or claims that it will incur.
- CONFIDENTIALITY.
(a) The term “Information” means (i) the fact that Horizon II and Vendor are engaged in discussions concerning the possibility of entering into an agreement or agreements or have entered into any such agreements; (ii) secret or confidential matters of a business nature such as, but not limited to the Specifications and Drawings developed by or for Horizon II, for the Work; (iii) secret or confidential matters pertaining to developments such as, but not limited to, research and development for future manufacturing, engineering, marketing or merchandising; (iv) secret or confidential matters of a business nature such as, but not limited to, information about costs, purchasing, profits, markets, sales or lists of customers; and (v) technical information which is conceived or developed by or for Vendor or any of his subcontractors in the performance of the Work and is more pertinent to Horizon II’s business than to the part of Vendor’s or its subcontractor’s business which conceived or developed it.
(b) Vendor shall hold Information in confidence and use it only to perform the Work except to the extent Horizon II otherwise authorizes in advance in writing.
(c) Vendor shall, if it has not already done so, enter into appropriate written agreements with all its directors, officers and employees having access to Information, obligating such directors, officers and employees to use and disclose Information only in connection with the performance of the Work. In addition, Vendor shall provide written notice to such directors, officers and employees, identifying the source of Information and explaining its confidential nature and their obligations with respect to it.
(d) Vendor may disclose Information to its directors, officers, employees, representatives, subcontractors, vendors and suppliers, but only to the extent necessary to perform the Work, and only if the disclosee agrees to have the same obligations that Vendor has under this section. Vendor shall use its best efforts to ensure that such disclosees honor their obligations.
(e) Vendor shall not in any manner advertise, publish or release for publication any statement mentioning Horizon II, this Contract or Vendor’s performance of, or contracting to perform, the Work without Horizon II’s prior written consent.
(f) Vendor shall not permit visitors, cameras or picture taking of the Work at the worksite without Horizon II’s prior written consent.
(g) Vendor agrees that the Information shall not be utilized for purposes of competition with, or in any way to the detriment of Horizon II. Furthermore, Vendor shall not, for a period of two years after the termination of this Contract, hire or attempt to hire as an employee, officer, director, consultant, or advisor any person who is, at the time of such hiring or attempted hiring, an employee of Horizon II, or otherwise induce or attempt to induce an employee of Horizon II to leave the employ of Horizon II.
(h) Vendor’s obligations under this section shall not apply to Information which has become published otherwise than as a result of unauthorized disclosure or use by Vendor, or which has been rightfully disclosed to Vendor by a third party. Specific Information shall not be deemed to be within these exceptions merely because it is embraced by general Information within them, nor shall a combination of portions of Information be deemed to be within these exceptions merely because the individual portions are within them. Information shall be deemed to be outside these exceptions until Vendor can show, by reference to dated documents, that it is within them.
(I) Horizon II shall have no obligation of nondisclosure or nonuse with respect to any information furnished by Vendor or any of his subcontractors, except as may be expressed in an agreement signed by an office of Horizon II.
(j) Vendor acknowledges that the confidential and proprietary Information referred to in and the subject of this Contract is unique in that the disclosure or use of the Information other than in furtherance of Horizon II’s business could reasonably be expected to result in irreparable harm to Horizon II. Accordingly, in addition to whatever other remedies Horizon II and/or its successors or assigns may have at law, in equity or pursuant to this Contract, Vendor specifically covenants and agrees that Horizon II and/or its successors and assigns shall be entitled to apply to any court of competent jurisdiction to enjoin any actual or threatened breach of default under the foregoing covenants and promises by Vendor or any affiliate, associate, partner, agent, employer or employee of Vendor or any other party whose services were utilized by Vendor in connection with the disclosure of the Information. Horizon II shall be entitled to an accounting and repayment of all profits, compensation, commissions, remunerations or benefits which Vendor, or any other party whose services were utilized by it, directly or indirectly has realized or may realize as a result of or in connection with any default under or any breach of this Contract. Vendor acknowledges that additional remedies available to Horizon II shall include, but not be limited to, monetary damages and further equitable relief in the event of Vendor’s default under or breach of this Contract.
(k) In the event of a default under or breach of this Contract by Vendor, Horizon II shall be entitled to seek specific performance of this Contract, and Vendor hereby agrees to pay all costs of enforcement and collection of any and all remedies and damages under this Contract, including reasonable attorneys’ fees.
- CONTINUATION OF THE WORK. In the event of a dispute or controversy between Horizon II and Vendor or between Vendor and any other person (including, but not limited to, a dispute or controversy relating to this Contract or the interpretation of any Contract documents, the performance of any portion of the Work or the payment of any money), Vendor shall, unless otherwise directed by Horizon II, continue to perform the Work without interruption pending the resolution or settlement thereof, and Vendor shall not, either directly or indirectly, stop or delay the performance of the Work.
- COMPLIANCE WITH APPLICABLE LAWS. Vendor shall comply with all applicable statutes, laws, ordinances, codes, orders, rules, regulations, proclamations and other governmental requirements, and all provisions required thereby to be included in the Contract are incorporated by reference; provided however, that if Horizon II has specified standards more stringent than those provided in such statues, laws, ordinances, codes, orders, rules, regulations, proclamations and governmental requirements, Vendor shall comply with such more stringent standards.
- SETOFF. Horizon II shall be entitled to setoff any amount owed by Horizon II in connection with this Contract against any amount owed to Horizon II or any of Horizon II’s affiliates by Vendor or any of Vendor’s affiliates.
- REMEDIES AND CUMULATIVE. Each of Horizon II’s rights and remedies under this Contract and each warranty made by Vendor shall be cumulative and in addition to any other of further rights, remedies or warranties in this Contract or provided by law or in equity.
- WAIVER OF JURY TRAIL. Each of the parties hereby waives its right to a trial by jury with respect to any claim or dispute which is in any way performed or to be performed under this Contract.
- WAIVER. Horizon II shall not be deemed to have waived any right, power, privilege or remedy unless such waiver is in writing and duly executed by it. No failure to exercise, delay in exercising or course of dealing with respect to any right , power, privilege or remedy shall operate as a waiver thereof by Horizon II or of any other right, power, privilege or remedy shall preclude any other or further exercise thereof by Horizon II or the exercise of any other right, power, privilege or remedy by Horizon II.
- SEVERABILITY. If any provision of the Contract, whether a section, sentence or any portion thereof, is determined by a court of competent jurisdiction to be null and void or unenforceable, such provision shall be deemed to be severed, and the remaining provisions of the Contract shall remain in full force and effect.
- GOVERNING LAW, VENUE. The laws of the state of Missouri shall govern the validity, interpretation, construction and effect of this Contract. Any action brought to enforce or interpret this Contract shall be brought and maintained in the U. S. Federal District Court for the Eastern District, Eastern Division of Missouri or the Circuit Court of St. Louis County in the State of Missouri. In any such action the prevailing party shall be reimbursed by the other party for its legal costs and expenses, including reasonable attorney fees incurred in such proceedings.
- INTERPRETATION. The headings in this Contract are for convenience of reference only and shall not affect its interpretation or construction. When used in this Contract, the singular form shall include the plural, and vice verse. The terms “herein”, “hereinbefore, “hereinafter”, “hereunder” and “hereof” shall refer to the entirety of this Contract and shall not be limited in applicability to the section in which the appear.
- NOTICES. Notices required or permitted by this Contract shall be in writing and shall be delivered to the last known business address of the party to be notified. A party may change its address for purposes of this section by giving the other party notice to that effect. A notice shall be considered given or made when delivered personally, when sent by telex, telegram or facsimile, or when mailed by prepaid U.S. express, registered or certified mail, with mailing evidenced by a receipt from the U.S. Postal Service, in which case it shall be considered given or made two days after mailing or when delivered, whichever first occurs.
- ENTIRE CONTRACT. This Contract, as to its subject matter, exclusively and completely states the rights and duties of the parties, set forth their entire understanding and merges all prior and contemporaneous representations, promises, proposals, discussions and understandings by or between the parties. Except as provided in Section 4 hereof, this Contract may be amended only by another written agreement duly executed by the parties.