1. APPOINTMENT: BrandPoint Services (BPS) hereby appoints Subcontractor and Subcontractor agrees to serve as BPS’ non-exclusive service subcontractor in support of one or more BPS customers (“Customer(s)”). Subcontractor shall act at all times as an independent contractor and not as the agent, partner, employee, or joint venture of BPS. Subcontractor shall have no authority to obligate BPS in any manner or to accept service on its behalf. All employees and agents of Subcontractor shall remain exclusively under Subcontractor’s control, and BPS shall have no obligation to such individuals to provide for their compensation, benefits, insurance, tax, or other payroll withholding.
2. SUBCONTRACT WORK ORDERS: The individual Customers to be served by Subcontractor, the specifications and/or scope of services (“Subcontract Work”) pertaining to each Customer shall be specified by BPS in separate Work Orders (“Subcontract Work Order(s)”), which will become effective as of the dates issued by BPS and will be deemed incorporated into and made part of these Terms and Conditions. Subcontractor will not undertake any change to the Subcontract Work without the prior written consent of BPS. If Subcontractor undertakes any additional work or change order without such prior written consent, Subcontractor agrees that performance of such work shall be at Subcontractor’s sole risk, cost and expense and, notwithstanding the foregoing, any such additional work or change order shall be deemed to have been performed subject to Subcontractor’s obligations under these Subcontract Work Orders.
3. COMPLIANCE WITH LAWS. Subcontractor shall comply with all laws and regulations that may be applicable to the Subcontract Work at its own cost. Subcontractor shall also comply with all laws regarding licensing, permits, and approvals for the Subcontract Work. Subcontractor shall be liable to BPS for any and all losses, costs, or expenses, attributable to any acts or omissions by Subcontractor, its employees, subcontractors or agents, for failure to comply with laws, including but not limited to fines, penalties, or corrective measures.
4. SAFETY. To protect persons and property, Subcontractor shall establish a safety program implementing safety measures, policies, and standards conforming to (a) those required or recommended by governmental and quasi-governmental authorities having jurisdiction, and (b) requirements of any agreement applicable to the Subcontract Work Order. Subcontractor shall keep the Subcontract Work site clean and free from debris resulting from the Subcontract Work.
5. WARRANTIES. Subcontractor warrants that all materials and equipment shall be new unless otherwise specified, of good quality, in conformance with all contractual requirements, and free from defective workmanship and materials. Subcontractor further warrants that the Subcontract Work shall be free from material defects not intrinsic in the design or materials required in the Subcontract Work Order. Subcontractor’s warranty does not include remedies for defects or damages caused by normal wear and tear during normal usage, use for a purpose for which the Subcontract Work was not intended, improper or insufficient maintenance, modifications performed by others, or abuse. Subcontractor’s warranties shall commence on the date of substantial completion of the Subcontract Work or a designated portion. Unless otherwise provided, Subcontractor agrees to provide a two (2) year warranty on all Subcontract Work. In the event of a conflict regarding warranty terms, the longer warranty period shall apply.
6. INDEMNITY. To the fullest extent permitted by law, Subcontractor shall indemnify, defend and hold harmless BPS, BPS’ parent companies, affiliates, its members, directors and officers, other contractors or subcontractors, any design professional, the Owner/Client, and their agents, Subcontractors, and employees (the “Indemnitees”) from all claims for bodily injury and property damage, that may arise from the performance of the Subcontract Work, including but not limited to reasonable attorneys’ fees, costs, and expenses, that arise from the performance of the Work, but only to the extent caused by the negligent acts or omissions or willful misconduct of Subcontractor, its employees, subcontractors or agents, or anyone employed directly or indirectly by any of them or by anyone for whose acts any of them may be liable.
7. SUBCONTRACTOR’S INSURANCE. Subcontractor and Sub-subcontractors shall purchase, maintain and provide a certificate of insurance prior to inception of work naming Rhombus Services LLC, d/b/a BrandPoint Services and Owner/Client (if requested) as Additional Insured on their commercial general liability policies using ISO Additional Insured Endorsement CG 20 10 and CG 20 37. This insurance for the additional insured will be on a primary and non-contributory basis and apply to both ongoing Operations and Completed Operations. The insurance carriers must be authorized to do business in all states and/or provinces relevant to the Subcontract Work. Subcontractor shall not begin performing services hereunder until original certificates of insurance showing evidence of the insurance with the coverage and limits of liability listed below have been furnished to and approved by BPS.

7.1.1 Workers’ Compensation and Employers’ Liability Insurance covering Subcontractor all persons employed or utilized by Subcontractor with the following limits: (i) Statutory Workers’ Compensation Limits as required by state law and (ii) Employers’ Liability limits of not less than $500,000/$500,000/$500,000.

7.1.2 Commercial General Liability Insurance insuring Subcontractor’s ongoing Operations and Completed Operations as follows:

(i) One million dollars ($1,000,000) per occurrence;
(ii) Two million dollars ($2,000,000) general aggregate to include premises operations, products/completed operations, full contractual, personal injury & advertising liability;
(iii) One million dollars ($1,000,000) personal and advertising injury;
(iv) Two million dollars ($2,000,000) products and completed operations aggregate;
(v) Limits must apply on a “per project” basis;
(vi) Must include Contractual Liability covering the duty to indemnify assumed by Subcontractor under this agreement or Subcontract Work Orders, independent contractors, waiver of subrogation, no cross suits or insured vs. insured exclusion if that exclusion applies to additional insureds, and separation of insureds clause.

7.1.3 Subcontractor also agrees to satisfy any insurance requirements required by any governmental authority and those required by any agreement between BPS and Owner/Client.

7.2 CANCELLATION, RENEWAL, AND MODIFICATION. To the extent commercially available to Subcontractor from its current insurance company, all required insurance policies must contain a provision that the insurance company or its designee must give BPS written notice transmitted in paper or electronic format: (a) 30 days before coverage is not renewed by the insurance company and (b) within 10 business days after cancellation of coverage by the insurance company. Prior to commencing the Subcontract Work and upon renewal or replacement of the insurance policies, Subcontractor shall furnish BPS with certificates of insurance in effect until one year after substantial completion or longer if required by any applicable agreement. In addition, if any insurance policy required under this agreement or Subcontract Work Orders is not to be immediately replaced without lapse in coverage when it expires, exhausts its limits, or is to be cancelled, Subcontractor shall give BPS prompt written notice upon actual or constructive knowledge of such condition.

7.3 CONTINUATION OF COVERAGE. Subcontractor shall continue to carry Completed Operations Liability Insurance for at least one year after final payment to BPS. Prior to commencement of the Work, Subcontractor shall furnish BPS with certificates evidencing the required coverage.

7.4 PROPERTY INSURANCE. If not covered under the Builder’s Risk Policy of insurance or any other property or equipment insurance required by the Subcontract Documents, Subcontractor shall procure and maintain, at Subcontractor’s own expense, property and equipment insurance for the Subcontract Work, including portions of the Subcontract Work stored off the site or in transit, when such portions of the Subcontract Work are to be included in an application for payment.

7.5 WAIVER OF SUBROGATION. Subcontractor shall provide waivers of subrogation in favor of BPS and Owner/Client. Subcontractor further agrees to waive any subrogation rights against Owner/Client and BPS and any of their subcontractors, sub-subcontractors, agents or employees with respect to general liability and workers’ compensation claims and for damages caused by fire or other causes of loss to the extent covered by property insurance provided under any agreement with Owner/Client or other property insurance applicable to the Subcontract Work. Subcontractor’s policies of insurance shall contain such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurance interest in the property damaged.

8. PAYMENT TERMS. As a condition precedent to payment, Subcontractor agrees to furnish to BPS detailed invoice(s) with appropriate supporting documentation required by BPS. Subcontractor agrees to provide, if and when requested by BPS, payroll affidavits, receipts, vouchers, releases of claims for labor, material and other subcontractors and suppliers performing work or furnishing materials for the Subcontract Work, all in a form satisfactory to BPS. If BPS disputes or questions any part or all of an invoice, BPS shall so advise Subcontractor in writing, and BPS shall have the right to withhold any disputed or questioned amounts until such time as such disputes or questions are resolved. In the event of any dispute regarding the Subcontract Work or any invoice related thereto, Subcontractor shall continue to carry on the performance of the Subcontract Work and maintain the progress during any such dispute or proceeding to resolve the dispute, and BPS shall continue to make payments of undisputed amounts to Subcontractor.

Notwithstanding the foregoing, the following payment terms shall apply to all Subcontract Work:

• Payment terms are net forty-five (45) days from the date that an invoice is approved by BPS in accordance with the terms unless approved otherwise in the sole discretion of BPS.
• BPS shall be permitted but not obligated to take a discount on any invoice submitted by Subcontractor as follows:
  • 5% discount if BPS pays the Subcontractor within 15 Days, or
    o 3.5% discount if BPS pays the Subcontractor within 30 Days.
  • BPS is not required to take any legal action to seek or enforce payment by any of its Clients to Subcontractor.
• BPS is not obligated to pay Subcontractor until BPS receives payment from its Client for the Subcontract Work.
• Subcontractor assumes the risk of non-payment by BPS’ Clients for any reason including, but not limited to, bankruptcy, insolvency, reorganization, financial distress, non-performance, dissatisfaction with work, or any other reason in or out of the control of BPS
• Under no circumstances shall Subcontractor or its officers, shareholders, employees, contractors, subcontractors or agents be permitted seek to collect payment from BPS’ Clients.
• Subcontractor agrees to utilize any existing or newly developed systems or process of BPS, including but not limited to BPS’ process for ordering parts or materials from material suppliers which are approved at the sole discretion of BPS and BPS’ Clients.
• Subcontractor and/or key staff will conduct a quality assurance visit with client and/or BPS staff as determined by BPS.
• A member of the Subcontractor’s management staff will conduct QA check on each BPS site completed within 48 hours of site completion unless waived by BPS.
• Please note that a separate invoice is required for each Subcontract Work Order.
• For payment to be processed by BPS for an invoice, a Subcontractor must submit the following documentation within 48 hours of work completion:
  • Invoice for the work referencing Subcontract Work Order number (not a copy of the proposal);
  • Location sign-off, in form and substance satisfactory to BPS;
  • Before and after digital pictures satisfactory to BPS;
  • Current insurance certificates satisfying the section #7 herein,& W9 on shall be file with BPS before any Subcontractor work begins; and
  • Such other documents that are required by BPS, including, but not limited to, lien waivers.
• Invoices will not be processed in the absence of any required documentation or failure to comply with the procedure as described herein.
• Invoice Dates will be dated on the day on which all required documentation is received and approved by BPS and not the date on which the Subcontractor sends its initial invoice to BPS.
• BPS may withhold from any payment due, or to become due, to Subcontractor, an amount sufficient to reimburse BPS on account of any correction or re-execution re-fulfillment of those portions of any work which is defective or has not been performed pursuant to the Subcontract Documents or on account of any damage caused by the Contractor.
• If, in order for BPS to receive payment from the Owner/Client, Subcontractor agrees to sign any and all written waivers/confirmations that it has been paid “in part” or “in full”.

9. LIENS. Subcontractor shall at all times indemnify and hold BPS harmless against all liability for claims and liens for labor performed or materials used or furnished used for the Subcontract Work Orders, including any costs and expenses for attorneys’ fees and incidental or consequential damages resulting to BPS from such claims or liens. Further, in case suit is brought on such claims, Subcontractor shall defend any such suit at its own cost and expense, including defense of BPS, and will pay and satisfy any such lien or judgment as may be established by the decision of the court. Subcontractor agrees within ten (10) calendar days after written demand from BPS to cause such claim, suit, or lien to be removed from the subject property, and in the event Subcontractor fails to do so, BPS is authorized to use such means as it deems necessary to cause such claim, lien, or suit to be removed and dismissed and the resulting cost, together with reasonable attorneys’ fees, shall be immediately due and payable to BPS by Subcontractor. Subcontractor may litigate any such claim, lien or suit, provided that it first causes such claim, lien or suit to be removed promptly, in advance, from the subject property.
10. CONFIDENTIAL INFORMATION. “Confidential Information” means information concerning BPS that is disclosed to Subcontractor that is not generally known to the public, whether in tangible or intangible form, including but not limited to information concerning its Clients (including past, present and prospective Clients), financial condition, operations, marketing, suppliers, employee information, trade secrets, sales, products, services, accounts, intellectual property, or information relating to existing or contemplated businesses, products and/or services of BPS. All information, plans, proposals, correspondence and other documents and materials provided or communicated by BPS to the Subcontractor shall be considered “Confidential Information”.
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Subcontractor shall hold in strict confidence and shall not disclose any Confidential Information of BPS and shall not use the Confidential Information for any purpose other than in relation to the specified Subcontract work for BPS. Subcontractor shall not, directly or indirectly, (a) disclose, reveal or make available to anyone any Confidential Information of BPS, (b) assist or enable anyone to access or use any Confidential Information of BPS, or (c) use or exploit any Confidential Information of BPS for any purpose whatsoever. In the event that the parties cease the relationship, or written demand from BPS (which demand may be made at any time and for any reason), the Subcontractor shall cause all of BPS’s Confidential Materials in the Subcontractor’s possession or control to be returned to BPS; except, however, to the extent BPS’s Confidential Information is contained in electronic, magnetic or similar media of the Subcontractor such that transfer of possession is impractical, the Subcontractor shall delete or destroy such Confidential Information.

Subcontractor’s obligations of confidentiality with respect to Confidential Information received hereunder shall extend from the date of any work order for five (5) years from the date of each separate disclosure.

12. NON-SOLICIATION. Subcontractor acknowledges and recognizes the highly competitive nature of the business of BPS and accordingly agrees that for a period of five (5) years from the later of the date of any Subcontractor’s engagement with BPS:

12.1 Subcontractor shall not directly or indirectly hire or solicit, induce or influence, or attempt to induce or influence, or assist in the hiring or solicitation of any person who, at any time during the twelve (12) month period prior to such hiring or solicitation was an employee of BPS, or otherwise entice or encourage any such person either to leave BPS’s employ or to provide services to any BPS competitor.

12.2 Subcontractor shall not directly or indirectly circumvent the efforts of BPS by pursuing any past, present, or prospective customers of BPS, or any other commercial ventures that come to its attention by virtue of the Confidential Information of BPS, absent an agreement for compensation. Without limiting the scope of any of the other provisions, this non-circumvention provision is intended to preclude the Subcontractor, and its agents, representatives, affiliates and other related parties, or parties acting on behalf of or at the direction of BPS from pursuing commercial ventures or relationships based on Confidential Information, absent advance written approval of BPS.

13. REMEDIES. In the event of any breach or threatened breach, BPS shall be entitled, without the requirement of posting a bond or other security, to enforce in accordance with the terms hereof by seeking immediate equitable relief, including specific performance and/or a temporary, preliminary, and permanent injunction from any court of competent jurisdiction. BPS may pursue both monetary damages and equitable relief concurrently or consecutively, in any order, as to any breach or threatened breach of this agreement, and the pursuit of any one of such remedies at any time will not be deemed an election of remedies or waiver of the right to pursue any other remedies, it being agreed that all remedies provided herein shall be cumulative with, not exclusive of, any other remedies that may be available at law or in equity.
14. REASONABLE RESTRICTIONS. Subcontractor acknowledges and agrees that the covenants and restrictions are reasonable in scope, area, and duration and are necessary to protect BPS’s business, good will, confidential information, trade secrets, and relationships with its customers, whether past, present, or prospective.
15. SEVERABILITY. If any provision of these Terms and Conditions or the application thereof to any person, place or circumstance, shall be determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall continue in full force and effect, unaffected by such determination.
16. JURISDICTION AND GOVERNING LAW. These Terms and Conditions shall be construed and governed by and under the laws of the Commonwealth of Pennsylvania, without regard to its conflicts of laws principles. Any action relating to these Terms and Conditions shall be commenced and concluded only in the Commonwealth of Pennsylvania before the Court of Common Pleas of Montgomery County or the United States District Court for the Eastern District of Pennsylvania.