GOODS AND SERVICES AGREEMENT
THIS GOODS AND SERVICES AGREEMENT (the “Agreement”) by and between Company (the “Company”), and Facility IT Group, Inc. (the “Contractor”), an Illinois corporation with a principal place of business at 5420 Newport Dr. #64, Rolling Meadows, IL 60008.
The Company desires to purchase goods from, and utilize the services of, Contractor with respect to certain matters related to its facility. Contractor is in the business of providing such goods and services.
NOW, THEREFORE, in consideration of the promises and the mutual agreements and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Company and the Contractor, it is hereby agreed as follows:
1.1 Term of Engagement. This Agreement shall begin on the date hereof and shall remain in full force and effect until terminated in accordance with Article III of this Agreement (the “Engagement”).
1.2 Services. In accordance with this Agreement, the Company hereby offers to engage, and the Contractor accepts engagement by the Company of the Contractor’s professional services (generally, the “Services”) and / or Company’s purchase of certain goods (generally, the “Goods”). This Agreement itself does not authorize the Contractor to commence the provision of such Goods or Services; commencement of such activities may only be authorized on a case-by-case basis by individual valid executed statements of work (each a “Statement of Work”). The Company and the Contractor agree that the terms and conditions of this Agreement shall apply to and be a part of all Statements of Work entered into between the Company and the Contractor.
1.3 Non-Exclusive. This Agreement, and any related Statement of Work, is not exclusive with respect to the Company and the Contractor in any way.
1.4 Relationship of the Parties. Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent contractor and not as a partner, joint venture, or agent of the other. Neither party shall have the ability or authority to bind the other party to any contract or other legal obligation, and neither shall represent such ability or authority or attempt to so bind the other party. As an independent contractor, the Contractor is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any sort that may result from its engagement pursuant to this Agreement, including, but not limited to, workers’ compensation insurance, unemployment insurance, social security contributions, income taxes and all other such amounts (collectively, the “Obligations”). The Contractor will be solely responsible for the performance, compensation, taxes (and related obligations), and benefits of any of its employees or agents that assist with the performance of the Contractor’s duties under this Agreement, and shall ensure that any such employees and agents understand the extent (and absence) of the Company’s obligations under this Agreement, and that they commit to such understanding, in a binding manner, in writing.
2.1 Prices and Payment Terms. Unless otherwise specifically agreed to in writing by the parties hereto, the prices associated with any Goods or Services provided hereunder shall be set forth in the applicable Statement of Work. Payment is to be received within 30 days of the receipt of invoice. Any amounts due and not received within 30 days must be subject to a 1.5% monthly charge (annual rate of 18% computed monthly).
TERM AND TERMINATION
3.1 Term and Termination. Unless otherwise specifically agreed to in writing by the parties hereto, the term associated with any Goods or Service provided hereunder shall be set forth in the applicable Statement of Work. This Agreement and / or Statement of Work shall remain in effect until a Statement of Work is completed or earlier terminated by either party as provided herein;
A. Termination for Cause. Either Party may immediately terminate the Agreement upon written notice to the other party, at any time without incurring any liability and immediately cease all obligations under the Agreement in the event that: (i) either party engages in any unlawful business practice, as determined by the other party in its sole reasonable discretion; (ii) either party attempts to assign or transfer any of the rights and obligations under this Agreement or Services to a third party without written approval; (iii) either party breaches a material term of this Agreement or any of its representations or warranties hereunder.
The Company shall remain liable for amounts due for Goods or Services actually rendered or performed prior to the effective date of such termination in accordance with the payment terms set forth in the applicable Statement of Work.
REPRESENTATIONS AND WARRANTIES
4.1 Mutual Representations. Each party hereby represents and warrants to the other that: (a) any Statement of Work has been duly and validly accepted and delivered by such party and constitutes the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, (b) it is duly incorporated (or organized), validly existing and in good standing under the laws of the state of its incorporation (or organization), and has full corporate power and authority to execute, deliver and perform any Statement of Work, and (c) the execution, delivery and performance of any Statement of Work will not, with or without the giving of notice, the lapse of time or both, conflict with or violate any provision of law, rule or regulation to which such party is subject or cause a breach of any agreement, contract or instrument to which such party is a party.
CONDITIONS OF WORK
5.1 Access to Work Area. Services are based on having proper access to the Company, and pertinent working areas.
5.2 Performance Discretion. The time, means and methods to be employed by Contractor in the performance of this agreement are solely within Contractor’s discretion unless specifically addressed in the attached Statement of Work.
5.3 Work of Others. Services shall be void if persons not in Contractor’s direct or subcontracted employ have done adjustments, repairs or other work agreed upon in writing.
5.4 Improper Operation. Acceptance of this Agreement in no way binds Contractor to make corrections necessitated by improper operation by Company or others contrary to the manufacturer’s recommendation.
5.5 Design Changes. Contractor is not responsible to make corrections in design, or original installations of Company’s equipment.
5.6 Misuse, Negligence of Equipment. This Agreement shall be void if the included equipment, in Contractor’s reasonable judgment, has been subject to misuse, negligence, accident, fire, lightning, improper power (including, but not limited, to under or over voltage, single phasing, reverse phasing), windstorm, vandalism or if the equipment has been tampered with, altered in any way.
6.1 Warranty. In addition to any other representation or warranty set forth in this Agreement or applicable Statement of Work, Contractor warrants that all Services provided under this Agreement and / or any Statement of Work that such Services shall be performed by experienced, qualified personnel, in full compliance with the specifications of Company, and generally in a manner reflecting the standards of professional skill and care prevailing in the industry and location where the services are performed.
6.2 Limitation of Liability. Contractor, nor its affiliates, shall be liable for special, indirect, incidental, punitive or consequential damages, including loss of profits, arising from the relationship of the parties or the conduct of business contemplated in this Agreement, regardless of the legal theory under which such liability is asserted and regardless of whether Company has been advised of the possibility of any such liability, loss or damage.
6.3 Indemnification. The Parties agrees to release, defend, indemnify and hold harmless the other party, and each of its officers, directors, members, employees, agents, partners, and members from and against any and all losses, damages, claims, demands, suits, liabilities, fines, penalties, obligations, settlement payments, awards, judgments, deficiencies, or other charges and any and all expenses, including attorney’s fees, incurred in connection with investigating, defending or asserting any claim, action, suit or proceeding, whether based in contract, tort or otherwise arising out of or relating to the acts or omissions of the other party, its employees or agents, in connection with the duties and/or activities of it under this Agreement or incurred by the harmed party in successfully enforcing any provisions of this Agreement.
6.4 Insurance. Contractor agrees to purchase and maintain at its own expense general liability insurance, which includes, statutory workers’ compensation, and automobile and professional liability insurance written on an occurrence basis, with policy limits as established and mandated by Company as set forth below by an insurance carrier with an A.M. Best rating of at least A- and a financial size of no less than Class VIII, and who are authorized as an admitted insurance company in the state where the work under the Statement of Work is to be performed. Upon request, prior to the commencement of any Services, Contractor shall provide Company with certificates of insurance evidencing such coverage, naming Company and its subsidiaries and affiliates as additional insureds and identifying the coverage as primary over any and all other applicable coverages. Specifically, Contractor, shall provide to Company Certificates of Insurance evidencing the following insurance issued by carriers as requested and in amounts and on forms acceptable to Company as follows:
A. Commercial General Liability Insurance written on an occurrence form, with limits not less than $1,000,000 each occurrence and $2,000,000 aggregate. Company shall be named as Additional Insured.
B. Workers’ Compensation (including occupational disease) in accordance with statutory limits and Employer’s Liability in an amount not less than $1,000,000 each accident, $1,000,000 disease- each Employee, and $1,000,000 disease- policy limit.
C. Commercial Automobile Liability Insurance written on an occurrence form covering Contractor’s and all subcontractors’ owned, leased, hired or non-owned vehicles used in the performance of the Work or brought onto the Property, in an amount not less than $1,000,000 combined single limit. Company shall be named as Additional Insured.
D. Umbrella or Excess Liability Insurance written on an occurrence form in an amount not less than $5,000,000 each occurrence and $5,000,000 aggregate. Company shall be named as Additional Insured.
In the event that any required policy of insurance shall expire or be canceled during the term of this Agreement, Contractor agrees to promptly replace such insurance and to provide Company with Certificates of Insurance which evidence replacement coverage.
7.1 Notices. All notices, requests, consents, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be (a) personally delivered (including courier), or (b) sent by postage prepaid registered airmail.
Facility IT Group, Inc.
5420 Newport Dr. #64
Rolling Meadows, IL 60008
Attn: Shawn Bergfalk
7.2 Entire Agreement. This Agreement contains the entire understanding and the full and complete agreement of the parties hereto and supersedes and replaces any prior understandings and agreements among the parties hereto with respect to the subject matter hereof. Should any inconsistency exist or arise between a provision of this Agreement and a provision of any Statement of Work or other incorporated writing, the terms of this Agreement shall prevail.
7.3 Amendment. This Agreement may be altered, amended or modified only in writing, signed by both of the parties hereto. Headings included in this Agreement are for convenience only and are not intended to limit or expand the rights of the parties hereto. References to Sections herein shall mean sections of the text of this Agreement, unless otherwise indicated.
7.4 Assignability. This Agreement and each Statement of Work, including without limitation, any of the rights, duties and obligations hereunder and thereunder, may not be assigned, delegated, subcontracted or licensed, in whole or in part, by the Contractor without the prior written consent of the Company.
7.5 Severability. If any court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then such invalidity or unenforceability shall have no effect on the other provisions hereof, which shall remain valid, binding and enforceable and in full force and effect, and such invalid or unenforceable provision shall be construed in a manner so as to give the maximum valid and enforceable effect to the intent of the parties expressed therein.
7.6 Remedies. Company’s remedies under these terms shall be cumulative and exercisable at Company’s discretion, and in addition to any other remedies provided by law and/or inequity.
7.7 Attorneys’ Fees. If any action, suit, arbitration or other proceeding for the enforcement of this Agreement is brought with respect to or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions hereof or any Statement of Work, the successful or prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that proceeding, in addition to any other relief to which it may be entitled.
7.8 Waiver of Breach. The waiver by either party of the breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party.
7.9 Governing Law. This Agreement shall be governed by the internal laws of the State of Illinois, without regard to any conflicts of law principles or rules of construction concerning the draftsman hereof.
7.10 Venue. The parties agree that any actions brought to enforce this Agreement shall be brought in state or federal courts sitting in Cook County, Illinois, and consent to the sole and exclusive jurisdiction of such courts.
7.11 Confidentiality. The parties acknowledge that during the term of this Agreement and the and business relationship each party may have access to certain proprietary and confidential information of the other (“Confidential Information”). The parties agree that such Confidential Information shall be held in strict confidence. The parties agree that each shall make Confidential Information available only to its officers, employees, directors, members or managers, affiliates, and legal or financial advisors, (collectively, “Representatives”) who have a need to know such Confidential Information for the purpose of furthering the objectives of any this Agreement and that all persons to whom such Confidential Information is made available will be made aware of the confidential nature of such Confidential Information and are subject to a non-disclosure obligation at least as restrictive as this Agreement. Each party shall be responsible for any violation of the provisions of this Agreement by any of its Representatives. For purposes of this Agreement, Confidential Information will not include information that: (a) was generally available to and known by the public, other than as a result of a disclosure by a party in violation of this Agreement; (b) was available to the other party on a non-confidential basis; or (c) was already known to the other party and not subject to restrictions on use or disclosure, as evidenced by its written records. Neither party nor its Representatives will disclose to any third party, except as may be required by law, any Confidential Information, or the fact that the parties have entered into this Agreement.
7.12 Non-Solicitation. During the term of this Agreement and for a period of twelve (12) months after termination, Company shall not (i) directly or indirectly, solicit, induce, influence any person employed by or under contract with Contractor, its affiliates or its sales representatives, or agents to terminate his or her employment, engagement or relationship with Contractor or its affiliates.
7.13 Beneficial Parties. This Agreement is made solely for the benefit of the Contractor and the Company and their respective successors and permitted assigns, and no other person or entity shall have or acquire any right by virtue of this Agreement.