Frm-ADM-028 Rev 01-Revised 05/02/12-Exhibit B Page 1 of 4
Form Frm-ADM-028 Rev 01-Revised 05/02/12 TERMS AND CONDITIONS FOR WORK AND SERVICES – Exhibit B
Page 1 of 4
Midwest Service Center (L.L.C.), an Illinois Limited Liability Company Corporation organized and existing under the laws of the State of Illinois hereinafter referred to as
Midwest Service Center, offers to compensate Contractor for certain work and services performed by Contractor as set forth herein, subject exclusively to the specific details
identified on the Purchase Agreement Form; and such plans, specifications, or other documents as are incorporated by reference on the Purchase Agreement Form; and with such
additional terms and conditions as are mutually approved in writing by the parties in a Change Notice; and the following terms and conditions; all comprising an Agreement
between the parties referenced on the Purchase Agreement Form.
1. AUTHORITY AND COMMUNICATIONS
A) Whenever the word or reference to Midwest Service Center appears in this
Agreement with respect to authorization for such items as (1) assignment,
subcontracting; (2) substitutions, extras; (3) changes; (4) termination, cancellation;
(5) claims; and (6) other such authorizations; the word and reference is deemed to mean
and only mean, Midwest Service Center’s Purchasing Department. No other person or
department of Midwest Service Center is so authorized to act. Claims by Contractor
for adjustments, changes, increases or deletions to the work and services, terms and
conditions, schedule, price or payment will not be allowed unless the said authorization
shall have been duly granted in writing prior to implementation by Midwest Service
Center’s Purchasing Representative (Buyer). B) All written communications,
submittals or other official documentation must be directed to Midwest Service
Center’s Purchasing Representative (Buyer) and shall reference the Purchase
Agreement number of this Agreement. Informal verbal communications from or to
other Midwest Service Center personnel on technical matters are permitted; however,
any agreements resulting from such communications shall be binding on both parties if
(1) the agreements are confirmed to the Midwest Service Center Purchasing
Representative (Buyer) in writing within thirty (30) days and approved by Midwest
Service Center (Buyer) through the issuance of a Change Notice or, (2) a Change
Notice issued by Midwest Service Center (Buyer) confirming such agreements is not
objected to within ten (10) days of issuance. C) All notices required or permitted to be
given under this Agreement may be given by either party by depositing same in the
United States Mail, enclosed in a sealed envelope with first class postage thereon,
addressed to the other at the address shown on the Purchase Agreement Form. The
address of either party may be changed by written notice to the other. Any notice of
either party shall be deemed to have been given and received within thirty-six (36)
hours after the same has been mailed in the manner set forth herein. The foregoing
shall not be deemed to preclude the use of other means of notification other than oral or
to invalidate any notice properly given by any such other means other than oral.
D) Contractor has no authority whatever, express or implied, by virtue of this
Agreement to commit Midwest Service Center in any way to perform in any manner or
to pay money for services or materials. E) The whole and entire agreement between
Midwest Service Center and Contractor is set forth in this Agreement and the parties
are not bound by any agreements, understandings or conditions otherwise than as
expressly set forth and stipulated hereunder; and this Agreement may not be changed or
modified in any manner other than by a Change Notice to this Agreement mutually
signed by the parties hereto.
2. INSPECTION
A) All parts of the work shall, throughout the time of performance of this Agreement,
be subject to inspection and test by Midwest Service Center or such of its agents,
employees, or representative as it may designate. The contractor shall provide all such
persons with safe and proper facilities for access to and inspection of the work both at
the work site or other source of supply where any equipment, material or other part of it
may be located. The Contractor shall give Midwest Service Center notice of the
readiness of the work or any part of it for any special inspection or test which may be
required by this Agreement or by any applicable law or public regulation. Midwest
Service Center shall make all of its inspection and tests in such manner as not to delay
the work unduly. No part of the work as to which any specific inspection is required
shall be covered up until such inspection has been completed. If such work is covered,
then it shall be uncovered and replaced at the Contractor’s expense. B) No inspection,
failure to inspect, or waiver of inspection on the part of Midwest Service Center or
anyone acting on its behalf shall relieve the Contractor of its duty to complete the work
in full accordance with the requirements of this Agreement. Should it appear at any
time prior to final inspection and final payment whether as a result of any inspections
or test or otherwise, that any part of the work is defective or does not conform to the
requirements of this Agreement, Midwest Service Center shall with respect to any such
defective or non-conforming work or any separate part thereof have the right, at its
election, to: 1) Require the Contractor, within such reasonable time as may be fixed
by Midwest Service Center and at the Contractor’s sole expense, to correct such work
or part, to remove from the site all defective or non-conforming materials and
equipment, and to make good all property and work of Midwest Service Center or of
any other contractor which may have been damaged by the defective or non
conforming work or part by the removal or replacement of the same; 2) Perform or
have performed all work necessary for the accomplishment of the results stated in the
work of this Agreement and withhold or recover from the Contractor the cost of such
work; or 3) Accept the defective or non-conforming work or part upon the making of
an equitable reduction in the Agreement price. All punch list items shall be resolved to
Midwest Service Center’s satisfaction and fully complete prior to acceptance of the
work and final payment.
3. TERMS OF PAYMENT
A) Payment shall be made only upon receipt of satisfactory invoice detailing the
request for payment and only when Midwest Service Center is able to determine that
the work and services have been performed in accordance with this Agreement. Any
such payment(s), including final payment, shall not relieve the Contractor of any
remedies Midwest Service Center may have in regard to this Agreement. B) Approved
invoices shall be paid by check issued in U.S. dollars ($) and mailed to the address
indicated on the invoice within forty five (45) days from the date of the invoice.
Unapproved invoices will be returned to the Contractor for reissue when appropriate
and/or corrected. C) Should payment or return of unapproved invoices not occur
within forty five (45) days of the date of the invoice, Contractor shall notify Midwest
Service Center (Buyer) with a copy of referenced invoice for resolution.
4. SCHEDULE/COMPLETION
A) Time is of the essence. Contractor shall provide sufficient labor, material, services,
management forces, plant and equipment working such hours, including night shift,
overtime, weekends and holidays as may be required by Midwest Service Center to
assure compliance with the established schedule and/or completion date. B) Should
the Contractor be delayed in the performance of the work by any act or omission on the
part of Midwest Service Center, act of God, or other cause beyond its reasonable
control including, without limitation, shortage of materials or equipment (providing the
contractor has ordered all necessary material and equipment at the proper times and
used reasonable effort to obtain delivery of such materials and equipment at the time
and in the order required to carry on the work properly), strike or similar obstructive
action by employees or labor organizations, fire, flood, earthquake, or civil disturbance,
Midwest Service Center will upon the written request of the Contractor and by written
change order, extend the time of completion for a period equal to the length of such
delay. No such extension shall be made, however, unless the Contractor shall within
five (5) days after the beginning of such delay, have given Midwest Service Center
written notice of the delay and the cause thereof. In the event of any extension of the
total time of completion, as provided herein, corresponding adjustments shall be made
in any schedules which are a part of this Agreement. The extension of the time for
completion of the work, in the manner provided above, shall constitute the sole relief to
which the Contractor is entitled by reason of any delay, and the Contractor shall make
no claim for additional compensation or damages by reason of any delay.
5. OWNERSHIP
A) Contractor shall make prompt and complete disclosure to Midwest Service Center
of all inventions and discoveries made or conceived, alone or with others while this
Agreement is in effect, or within three (3) years thereafter, which arise out of or relate
to the work and services rendered under this Agreement. The Contractor shall keep
necessary records, including notes, sketches, drawings, models and data supporting all
such inventions and discoveries made, alone or with others, during the course of
performing the services described in this Agreement and will furnish to Midwest
Service Center, upon request, all such records. B) All data, drawings, designs,
artwork, photographs, programs, software, specifications and all information including
innovations contained therein to the extent generated or developed under this
Agreement by Contractor at Midwest Service Center’s expense shall be the property of
Midwest Service Center. Furthermore, any data, drawings, designs, artwork,
photographs, programs, software, specifications and all information contained therein
actually delivered to Midwest Service Center shall become the property of Midwest
Service Center and may be used by Midwest Service Center for any purpose,
whatsoever, irrespective of any statement to the contrary appearing on such data,
drawing, designs, software, specifications or other information. Unless otherwise
approved by Midwest Service Center (Buyer) in writing, and without additional cost to
Midwest Service Center, it is the sole responsibility of Contractor to obtain any and all
licenses and rights necessary to afford Midwest Service Center the foregoing rights. C)
Title to all work completed or in the course of completion and to all materials on
account of which any payment has been made shall be deemed transferred to Midwest
Service Center, but this shall not limit or affect Midwest Service Center’s right to
require the correction of defective or non-conforming work or relieve the Contractor of
any obligation arising under this Agreement. D) In the event payments are made by
Midwest Service Center prior to completion, Contractor shall execute and deliver such
security agreements, financing statements and other documents as may be deemed
necessary by Midwest Service Center to protect its rights herein. E) In the
performance of the work and services hereunder, the Contractor shall act solely as an
independent contractor and nothing herein contained or implied will at any time be so
construed as to create the relationship of employer and employee, partnership, principal
and agent, or joint adventurer as between Midwest Service Center and Contractor.
Contractor shall provide control, supervision, direction and take responsibility for any
work performed under this Agreement. The manner and method of implementing and
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completing any work to be performed hereunder will be left to Contractor’s control and
professional judgment.
F) To the maximum extent that such agreement is valid under applicable law, the
Contractor, for itself, its subcontractors, immediate and remote, and all material, men,
laborers, and other parties acting through or under it, agrees that no mechanic’s liens,
claims or encumbrances shall be filed or maintained by it, them, or any of them against
any property of Midwest Service Center (and/or any property of a third party wherein
such work/services may be performed) for any work done or material furnished for or
in connection with the performance of the work, and expressly waives and relinquishes
the right to file or maintain any such lien or claim. The Contractor shall, from time to
time, at Midwest Service Center’s request and in any event prior to final payment,
furnish to Midwest Service Center such receipts, releases, affidavits, certificates and
other evidence as may be necessary to establish to the reasonable satisfaction of
Midwest Service Center that no lien, claim or encumbrance against Midwest Service
Center’s property (and/or any property of a third party) or right to file any such lien,
claim or encumbrance exists in favor of any person whomsoever for or by reason of
any material furnished, labor performed, or other thing done in connection with the
performance of work and services under this Agreement. G) Upon termination,
including expiration of term or completion of work, Contractor shall immediately
surrender and return to Midwest Service Center all information, equipment,
furnishings, supplies or other property of Midwest Service Center in the same good
order and condition as when received by Contractor with reasonable wear and tear
expected.
6. RISK OF LOSS
Contractor, by execution of this Agreement, represents that he has visited or has had
full opportunity to examine the site upon which the work is to be completed; that he
has satisfied himself as to the requirements of the work and all conditions which may
affect the work; that his entry into this Agreement has not been induced either wholly
or in part by any promises, representations or statements on behalf of Midwest Service
Center other than those set forth in this Agreement. The Contractor further represents
that the price set forth in the Agreement has been determined with due regard to all
such conditions and requirements affecting the work, as well as the difficulties and
delays incident to work of the nature contemplated hereby, and agrees that no claim for
any increase in such price shall be made except as specifically provided in this
Agreement.
7. CHANGES
Midwest Service Center shall have the right to make changes without notice to the
sureties of the Contractor, if any, in the work, either by altering the nature of the same
or by adding to or deducting from it. All changes shall, except in the case of
emergencies endangering the safety of persons or property, be made in writing. The
Contractor shall promptly comply with any and all written Change Notices. No such
change shall be deemed to invalidate the Agreement. If any change ordered by
Midwest Service Center causes an increase or decrease in the cost or time required for
performance of the work, an equitable adjustment shall, upon the request of either
party, be made in the contract price or time of performance or both. Any claims of the
Contractor for such adjustments shall, except in the case of emergency changes as
described herein, be made prior to the Contractor’s commencement of performance of
the changes on which they are based and shall, if not made prior to such time, be
conclusively deemed to have been waived.
8. ASSIGNMENT AND STATUS
A) Contractor may not assign this Agreement nor any rights or obligations hereunder
without Midwest Service Center’s prior written consent. Any purported assignment
without such prior written consent shall be void. B) Contractor shall immediately
notify Midwest Service Center of any change in its status including, but not limited to:
bankruptcy, insolvency, change of ownership or control, strike or work stoppage.
9. INFRINGEMENT
A) Contractor shall, at its own expense, defend any suit or proceeding brought against
Midwest Service Center, and/or its licensees or customers, mediate and immediate, so
far as based on any allegation that any goods, material, equipment, software, device,
item, method, or article (hereinafter referred to as Product), or any part thereof
furnished hereunder constitutes an infringement of any claim of any patent, copyright,
trade secret, or other intellectual property right, provided that Contractor is notified in
writing and given authority, information and assistance for the defense of said suit or
proceeding. Contractor shall pay all damages and costs awarded in any suit or
proceeding so defended. B) In case the Product or any part thereof furnished
hereunder is held, in any suit or proceeding so defended, to constitute infringement and
its use is enjoined, Contractor shall, at its option and its own expense, in a timely
manner either (1) procure for Midwest Service Center and its licensees and customers,
mediate and immediate, the right to continue using said Product or part thereof, or (2)
replace it with a substantially equivalent non-infringing Product, or (3) modify it so it
becomes non-infringing, but is substantially, functionally equivalent.
10. COMPLIANCE WITH U.S. LAWS AND STANDARDS
A) Contractor shall comply with all applicable executive orders and federal, state,
municipal and local laws of the state in which the services are performed as well as all
rules, orders, requirements and regulation thereunder, including the Fair Labor
Standards Act of 1933 and the Occupational Safety and Health Act of 1970.
Contractor shall comply with all applicable laws, codes and standards, including, but
not limited to, ANSI, ASME, AIEE, ASTM and NEMA in effect at the time this
Agreement is placed unless otherwise specified in this Agreement. B) The Contractor
shall obtain all building permits and other permits or licenses, but not easements or
other permanent interests in real property, which may be required in connection with
the performance of the work, and shall give all notices, pay all fees, and take all other
action which may be necessary to insure that the work is performed in accordance with
all applicable statutes, ordinances, rules and regulations including, without limitation,
the Fair Labor Standards Act, any statutes regarding qualification to do business, and
any statutes prohibiting discrimination among employees because of race, creed, color,
national origin, age or sex or the employment of convict labor. The Contractor shall
promptly examine the work requirements and other Agreement documents reporting to
Midwest Service Center any respects in which it appears that such work or
requirements fail to conform to any applicable statute, rule, regulation, or ordinance.
At or before the time of Midwest Service Center’s final acceptance of the work, the
Contractor shall deliver to Midwest Service Center all certificates, receipts, or other
evidence of approval, acceptance or payment of fees which may be required to
establish the compliance of the work with all applicable statutes, rules, regulations and
ordinances.
11. TERMINATION
A) Midwest Service Center may terminate this Agreement for its convenience, in
whole or in part, at any time by written notice whenever it determines such termination
to be in its best interest. In such event, Contractor shall promptly comply with the
directions contained in such notice and shall, subject to such direction, (1) take all
necessary action to terminate the work as provided in the notice, minimizing costs and
liabilities; (2) protect, preserve and deliver any property related to this Agreement
which is in Contractor’s possession pursuant to Midwest Service Center’s direction; (3)
Continue the performance of such part of the work, if any, as may not have been
terminated by this notice. B) In the event of termination for convenience of Midwest
Service Center, if Contractor at the time of such termination shall have in stock or on
firm order any completed or uncompleted items or any raw, semi-processed or
completed materials for use in fulfilling this Agreement, then: (1) in the case of
completed items or materials Midwest Service Center may either require delivery of all
or part of the completed items or materials and make payment thereof at the purchase
price, or, without taking delivery thereof, pay Contractor the difference, if any, of the
purchase price over the market price at the time of termination; and (2) in the case of
uncompleted items or raw or semi-processed materials, Midwest Service Center shall,
at its option, either require Contractor to deliver all or part of such items or materials at
the portion of the purchase price representing their stage of completion, or, without
taking delivery thereof, pay Contractor with respect to such items or materials as are
properly allocable to this Agreement, a portion of the purchase price representing the
stage of completion of such items or materials, reduced by the higher of the market or
scrap value of such items or materials at such stage of completion; and (3) in the case
of items or materials which Contractor has on firm order, Midwest Service Center shall,
at its option, either take an assignment of Contractor’s right under such order or pay the
costs, if any, of settling or discharging Contractor’s obligation under such order. C)
Midwest Service Center shall have the right, by written notice to Contractor, to
terminate the whole or any part of this Agreement for default: (1) if Contractor fails to
complete such work or to perform the services within the time or in the manner
provided under this Agreement; or (2) if reasonable grounds for insecurity arise with
respect to Contractor’s performance and Contractor fails to furnish adequate assurances
within ten (10) days after a written demand by Midwest Service Center for such
assurance; or (3) if Contractor becomes insolvent or makes an assignment for the
benefit of creditors, commits an act of bankruptcy or files or has filed against it a
petition in bankruptcy or reorganization proceedings; D) In the event Midwest Service
Center terminates this Agreement, in whole or in part, for default, Midwest Service
Center may procure, upon such terms as Midwest Service Center may deem
appropriate, items, materials, work and services similar to those so terminated and
Contractor shall be liable to Midwest Service Center for any excess costs for such
similar items, materials, work and services. In addition, Midwest Service Center may,
at its option, require Contractor to deliver to Midwest Service Center any completed or
partially completed items, materials, work and services related to this Agreement by
accounting for such action in accordance with sub-paragraphs (1) and (2) of Paragraph
11 (B) above for such delivered items, materials, work and services, or by taking an
assignment of Contractor’s rights pursuant to sub-paragraph (3) of said paragraph 11
(B);
E) Should the Contractor at any time (1) be adjudicated a bankrupt, make a general
assignment for the benefit of creditors, make or permit the appointment of a receiver
for all or substantially all its property, or fail or refuse to prosecute the work diligently
or (2) fail to perform any other requirement of this Agreement and not cure such failure
within ten (10) days after written notice thereof from Midwest Service Center, Midwest
Service Center shall have the right, at its election and without prejudice to any other
remedies, to take possession, for the purpose of completing the work, of all materials,
tools, equipment, and appliances at the work site, and either complete or employ any
other person or persons to complete the work. In case of such termination of this
Agreement, the Contractor shall not be entitled to any further payment until the work
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has been fully completed and accepted by Midwest Service Center at which time (a) if
the unpaid balance of the Agreement price exceeds the expense (including, but not
limited to, the cost of completing the work) sustained by Midwest Service Center on
account of the Contractor’s default, the amount of such excess shall be retained by
Midwest Service Center without further obligation to the Contractor but (b) if such
unpaid balance is less than the expense and consequential damage sustained by
Midwest Service Center, the Contractor shall pay the amount of such deficiency to
Midwest Service Center.
12. SUBCONTRACTING
A) Contractor shall not subcontract any portion of the work without prior written
approval of Midwest Service Center. Unless otherwise specified, this restriction shall
not apply to purchases of raw materials or standard commercial items or services. B)
Contractor, if required by Midwest Service Center, shall disclose in writing, the extent
of any subcontracting and/or purchased materials, equipment or services anticipated on
this Agreement. C) Any notice provided by the Contractor and any such consent by
Midwest Service Center shall not relieve the Contractor of full responsibility for the
performance of the work in accordance with all the requirements of this Agreement.
The Contractor shall, notwithstanding any approval by Midwest Service Center, remain
as fully responsible for the acts and omissions of all subcontractors and materials
suppliers including their respective agents and employees as it is for its own acts and
those of its agents and employees.
13. WARRANTY
A) Contractor warrants that any equipment or manufactured items shall be free from
defects in design, workmanship and materials; shall be of the kind and quality
described in the specification; shall be fit for the purpose intended; shall perform in the
manner specified and shall comply with all requirements of this Agreement, until one
(1) year after first placed into service by Midwest Service Center, not to exceed 18
months after completion. Contractor shall correct any nonconformity with this
warranty at its sole expense, as directed by Midwest Service Center, by promptly: (1)
repairing or replacing the nonconforming work (including correcting any plans,
specifications or drawings affected); (2) furnishing Midwest Service Center any
materials, parts and instructions necessary to correct or have corrected the
nonconformity; or (3) paying Midwest Service Center a portion of the purchase price as
is equitable under the circumstances. B) Contractor warrants that work and services
furnished by it shall reflect the highest standards of professional knowledge and
judgment; shall be free from defects in workmanship; and shall be in compliance with
all requirements of this Agreement, until one (1) year from the acceptance of all such
work or services. Contractor shall correct any nonconformity with the warranty at its
sole expense, as directed by Midwest Service Center, by promptly: (1) correcting the
nonconforming work or services; or (2) paying to Midwest Service Center a portion of
the purchase price as is equitable under the circumstances. C) The warranty with
respect to any corrected equipment or services shall be subject to the same terms as the
warranty provided for in paragraphs 13 A) and B). D) Nothing contained in this
Agreement shall be deemed to limit Contractor’s liability for latent defects, fraud or
gross negligence. E) The warranty here in expressed shall not be sole and exclusive
and is extended to include additional warranties as provided for in the specifications or
other requirements provided for in this Agreement.
14. MIDWEST SERVICE CENTER INFORMATION
A) All information, including but not limited to, programs, software, data, drawings,
designs, specifications, photographs, sketches, artwork, etc., relating to work under this
Agreement furnished by Midwest Service Center to Contractor or developed by
Contractor in the performance of this work shall (except to the extent such information
has been independently developed prior to this Agreement by Contractor or is received
by Contractor from a third party without restriction) be treated by Contractor as
Midwest Service Center’s proprietary information and shall not be used or disclosed
except as may be necessary in the performance of the Agreement and then only on a
confidential basis with the prior written consent of Midwest Service Center. To the
extent applicable, any such Midwest Service Center proprietary information developed
by Contractor hereunder shall be considered a work for hire, for which Midwest
Service Center may apply copyright or other form of intellectual property protection in
its own name. B) All information, including but not limited to, programs, software,
data, drawings, designs, specifications, photographs, sketches, artwork, advertising,
etc., related to the work under this Agreement, which Contractor desires to release or
publish, shall be submitted to Midwest Service Center for written approval prior to
such release or publication.
15. RESOLUTION OF CONFLICTS OR INCONSISTENCIES OCCURRING
IN THIS AGREEMENT.
It is the responsibility of the Contractor to comply with these and all referenced
documents and to clarify with Midwest Service Center any inconsistencies or conflicts
in any part of this Agreement. Should Contractor fail to contact Midwest Service
Center (Buyer) to resolve any such conflicts or inconsistencies, Contractor will be
solely responsible for any errors resulting from any conflicts or inconsistencies
occurring in any part of this Agreement. Where documents are referenced, the issue
date in effect at the time of this Agreement or change notice placement shall be
applicable, unless another issue date is specified.
16. TAXES
A) The purchase price shall not include sales or use taxes imposed upon the sale or use
of tangible personal property or services contemplated by this Agreement, and such
taxes, if applicable, are for Midwest Service Center’s account. If Contractor is
registered to collect applicable sales or use taxes, it shall do so as an addition to the
purchase price, unless Midwest Service Center furnishes an exemption claim. All other
taxes imposed on the work and services are for the account of the Contractor,
including, but not limited to, property taxes (and/or inventory tax), excise,
transportation, privilege and occupational imposed with respect to the work,
equipment, materials and services for which title has passed to Midwest Service Center
pursuant to this Agreement that may be levied while the work, equipment, materials
and services are being stored by Contractor or are otherwise in Contractor’s custody.
B) It is understood that Midwest Service Center has no obligation under local, state or
federal laws regarding the Contractor or any employees, agents or subcontractors
employed by the Contractor and that the total commitment and liability of Midwest
Service Center in regard to any arrangement or work performed hereunder is to pay the
fees and expenses pursuant to the provisions hereof. All taxes applicable to any
amounts paid by Midwest Service Center to the Contractor under this Agreement will
be the Contractor’s liability and Midwest Service Center shall not withhold, nor pay
any amounts for federal, state or municipal income tax, self-employment tax, social
security, unemployment or worker’s compensation. For individuals without an
employer’s tax identification number, Midwest Service Center shall annually file with
the Internal Revenue Service a Form 1099 reflecting the gross annual payments by
Midwest Service Center to the Contractor (Individual), pursuant to this Agreement.
The Contractor (Individual) hereby acknowledges personal income tax liability for the
self-employment tax imposed by Section 1401 of the Internal Code and the payment,
when applicable, of estimated quarterly Internal Revenue Service Forms 1040-ES:
Declaration of Estimated Tax by Individuals. Upon request by Midwest Service
Center, the Contractor shall provide documentation evidencing compliance with all
applicable federal, state and municipal income tax, self-employment tax, social
security, unemployment, worker’s compensation or other employment laws in regard to
the work performed under this Agreement. C) Contractor shall indemnify and save
Midwest Service Center harmless from and against any liability for any such taxes,
premiums and contributions.
17. INSURANCE AND INDEMNITY
A) Prior to commencing work on the premises owned, controlled or used by Midwest
Service Center or Midwest Service Center’s designated locations, Contractor shall
provide safety protection for personnel in accordance with applicable laws, regulations
and site procedures. In the event Contractor fails to provide such protection, Midwest
Service Center may order Contractor to cease work until such protection is afforded. If
Contractor is unable or refuses to take corrective action, Midwest Service Center may
contract for or otherwise accomplish a continuation of the work and back-charge
Contractor the excess cost occasioned Midwest Service Center thereby. B) Contractor
shall indemnify and save harmless Midwest Service Center and any Midwest Service
Center designated third party from and against all losses, liabilities, claims or demands
whatsoever (including without limitation, all costs, expenses and attorney’s fees),
arising out of any personal injury (including death) or any damage to or loss or
destruction of property, in any manner based upon, occasioned by, or attributable or
related to performance under this Agreement whether by Contractor, its subcontractor,
any employee of the Contractor or its subcontractor, except where such injury to or
death of persons or damage to or loss or destruction of property is due to the extent of
the negligence of Midwest Service Center, its officers, agents or employees. The
foregoing indemnity shall not apply to loss, damage or loss of use of any property, or
injury or death of persons arising out of or resulting from a nuclear incident as defined
in the Atomic Energy Act of 1954 as amended. C) Contractor shall maintain in effect
and require its subcontractors to maintain in effect during performance of any work on
premises owned or controlled by Midwest Service Center, or Midwest Service Center’s
designated locations, insurance of the types and with respect to the limits set forth
below, and shall furnish satisfactory evidence of such insurance coverage to Midwest
Service Center. (1) Worker’s Compensation Insurance in accordance with the statutory
requirements of the state in which the work is performed (including waiver of
subrogation). (2) Employers Liability Insurance with a minimum limit of $1,000,000.
(3) Comprehensive General Liability Insurance (including coverage for
products/completed operations, broad form property damage and contractual liability)
with $2,000,000 each occurrence and aggregate. (4) Comprehensive Automobile
Liability Insurance including coverage for owned, hired and non-owned automobiles
with minimum limits of $2,000,000 per occurrence. (5) name Midwest Service Center
as additional insured. Neither the procurement, maintenance or acceptance of
insurance coverage by Midwest Service Center shall relieve Contractor of liability for
loss or damage in excess of the policy coverage or limits specified herein.
18. GOVERNMENT ORDERS
When the material, equipment, work or services furnished are to be used in the
performance of a contract or subcontract with a governmental body or other entity
requiring compliance with similar laws and regulations, Section 19 and the additional
and supplementary terms and conditions attached hereto shall apply.
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19. EQUAL EMPLOYMENT OPPORTUNITY
A) Contractor shall comply with all applicable provisions of Executive Order 11246 of
September 24, 1965, as amended, the terms of which are incorporated herein by
reference and made a part hereof. B) Contractor is hereby notified that it is the policy
of Midwest Service Center to provide equal employment opportunity and to adhere to
Federal, state and local laws pertaining thereto. Appropriate action shall be taken by
Contractor, with respect to itself and any of its subcontractors, vendors and suppliers to
insure compliance to such laws.
20. MIDWEST SERVICE CENTER-FURNISHED PROPERTY
The following additional provisions shall apply to any and all tools, patterns,
equipment, material, or other property which is supplied to Contractor by Midwest
Service Center (hereinafter “Midwest Service Center Furnished Property”): A)
Contractor shall not use Midwest Service Center Furnished Property on any other work
without the prior written consent of Midwest Service Center. B) Title to Midwest
Service Center Furnished Property shall remain with Midwest Service Center.
Contractor shall segregate and clearly mark Midwest Service Center Furnished
Property to show Midwest Service Center’s ownership and shall do all things necessary
to preserve Midwest Service Center’s title thereto, free and clear of all encumbrances.
Contractor shall, if requested by Midwest Service Center, submit to Midwest Service
Center an itemized inventory showing the description, location, and identifying marks
of each item of Midwest Service Center Furnished Property . Midwest Service Center
shall have the right to enter Contractor’s premises and inspect any and all Midwest
Service Center Furnished Property. Should contractor fail to perform the duties
imposed upon it by this section 20, B), or should Midwest Service Center at any time
have reason to believe that its title to, or right to the possession of any Midwest Service
Center Furnished Property is threatened, Midwest Service Center shall have the right to
enter upon Contractor’s premises and remove any or all such property. Upon
completion or termination of this Agreement, Contractor shall segregate and collect in
one location all Midwest Service Center Furnished Property and shall dispose of the
same as Midwest Service Center may direct. Midwest Service Center reserves the right
to abandon Midwest Service Center Furnished Property at no additional cost to
Midwest Service Center upon issuance of written notification to Contractor of such
intent. C) Contractor shall, at its own expense, perform all maintenance, repairs, and
replacements necessary with respect to Midwest Service Center Furnished Property so
that the same may remain suitable for the use contemplated hereby and may, at the
same time required by this Agreement, be returned to Midwest Service Center in a
good condition as when received, except for reasonable wear and tear or consumption
of materials necessarily resulting from their use.
D) Contractor shall give Midwest Service Center prompt written notice of any
Midwest Service Center Furnished Property which upon delivery to Contractor is
found to be defective. The correction or replacement of such defective property shall
be accomplished at Midwest Service Center’s written direction. E) Upon delivery,
procurement or manufacture of any Midwest Service Center Furnished Property, the
risk of loss or damage shall be upon Contractor. Risk of loss or damage shall transfer
to Midwest Service Center when such property is returned to Midwest Service Center
in the manner required hereunder.
F) Contractor shall indemnify Midwest Service Center against any and all liability for
damage to property or injury to or death of persons arising from or incidental to the
presence of use of Midwest Service Center Furnished Property, whether such damage,
injury or death be caused by defects in such property, negligence in the use thereof,
strict liability, or otherwise.
21. TOXIC SUBSTANCES
Contractor warrants that each and every chemical substance delivered under this
Agreement shall, at the time of sale, transfer or delivery, be on the list of chemical
substances compiled and published by the Administrator of the Environmental
Protection Agency pursuant to Section 8(b) of the Toxic Substances Control Act
(Public Law 94-469). When applicable, the Contractor shall provide to Midwest
Service Center Material Safety Data Sheets (OSHA-20).
22. NONEXCLUSIVE REMEDIES
The rights and remedies of Midwest Service Center provided herein shall not be
exclusive and are in addition to any other rights and remedies provided by law.
23. MIDWEST SERVICE CENTER SITE CONDITIONS
A) Midwest Service Center shall provide, at no charge to the Contractor, reasonable
amounts of water, electricity, or other facilities currently available at the site where the
work is to be performed. The Contractor shall make whatever arrangements are
necessary for additional water, electricity or other facilities needed for the work and
pay all costs involved in such facilities, including temporary utility lines, etc.
Contractor shall remove same at the completion of work unless otherwise approved by
Midwest Service Center. B) The Contractor shall provide all permanent and
temporary shoring, anchoring and bracing required by the nature of the work in order to
make all parts absolutely stable and rigid, even when such shoring, anchoring, and
bracing are not explicitly specified. Contractor will be held strictly accountable for any
damage to persons, properties or the premises resulting from failure to provide same,
either through lack of proper judgment or for any other cause. C) The Contractor
shall, at his own expense, support and protect all buildings, bridges, roadways, conduit,
wires, water pipes, gas pipes, sewers, pavements, curbing, sidewalks and fixtures of all
kinds and all other public or private property that may be encountered or endangered in
the prosecution of the work herein contemplated. The contractor shall repair and make
good any damage caused to any such property by reason of his operation. D) The
Contractor shall keep Midwest Service Center’s premises clean at all times and shall
remove all rubbish at such times as may be determined by Midwest Service Center. If
the Contractor fails to keep the premises clean or to remove any rubbish within any
reasonable time determined by Midwest Service Center, Midwest Service Center shall
have the right to perform such cleaning as may be necessary, or to have it performed,
and to withhold or recover the cost thereof from the contractor. Upon completion of
the work, the Contractor shall do all such cleaning as may be necessary to leave
Midwest Service Center’s premises in a clean, neat, and orderly condition.
E) Midwest Service Center shall have the right to perform or have performed, in and
about the Midwest Service Center premises during the time when the contractor is
performing the work required by this Agreement, such other work as Midwest Service
Center may desire. The Contractor shall make every reasonable effort to perform its
work hereunder in such manner as to enable both the work under this Agreement and
such other work to be completed without hindrance or interference from each other.
Any claim of the Contractor arising out of any alleged interference due to the conduct
of such other work shall be made to Midwest Service Center in writing within five (5)
days of the occurrence of the alleged interference and shall be deemed to have been
waived unless so made. F) Based on Midwest Service Center’s commitment to provide
quality products and services with a determination to maintain safe and healthy
workplaces, the Contractor shall provide the following assurances to Midwest Service
Center for any Contractor personnel having or requesting unescorted/uncontrolled
access to Midwest Service Center locations or Midwest Service Center designated
locations: 1) Pre-employment screening, including but not limited to, reference
checks; validation of education, prior employment, citizenship; driver’s license/motor
vehicle records; criminal checks; etc. 2) Drug/Alcohol testing in the prevention,
deterrence or rehabilitation of chemical dependency along with the management of its
consequences. Contractor shall immediately notify Midwest Service Center of any
improprieties that may endanger the safe and healthy workplace along with the
Contractor’s proposed remedy. If requested by Midwest Service Center, Contractor
shall provide written assurance to Midwest Service Center, with documentation, that
Contractor’s personnel have been checked/tested and any concerns or improprieties
about an individual are brought to the attention of Midwest Service Center.
24. EXAMINATION OF BOOKS AND RECORDS Midwest Service Center shall
have access to and audit rights to examine any directly pertinent books, documents,
papers and records of the Contractor involving transactions related to this Agreement
until the expiration of three 3) years after final payment hereunder.
