SERVICE TERMS AND CONDITIONS
Last Updated: 6/8/2022
The following Service Terms and Conditions apply only to the provision by you (“you” or “Vendor”) of maintenance, construction, repair, remediation or any other services in your capacity as a general contractor or sub- contractor to the Refuel Operating Company, LLC (the “Company”). These Service Terms and Conditions apply in addition to the General Terms and Conditions applicable to all Company Vendors, and may be supplemented by a specific Addendum between you and the Company setting forth the particular terms of your engagement. In providing any such Services, you shall furnish and pay for all labor, services, and materials and perform all of the work necessary or incidentally required for the completion of the Services. You agree not to perform any work that is not specified in the scope of work specified in any applicable Addendum to the Vendor Packet or, as the case may be, the work order relating to the specific Services to be provided. You agree that any work that is performed which is not specified in an Addendum to the Vendor Packet or in a work order is performed your own expense, and you assume all liability for any damage, personal injury or defective work resulting from unauthorized work. These Service Terms and Conditions may be updated may be updated by us from time to time without notice to you.
You hereby agree to obtain all permits required to comply with all laws, rules and regulations as may pertain to the provision of Services hereunder. In addition, Vendor covenants, represents and warrants to the Company that:
- Vendor will take all steps reasonably necessary (including, but not limited to, performance of Services during non-peak business hours with respect to Company’s business on the property) to (i) prevent injury resulting from the Services to persons or property, (ii) minimize interference with the business or personnel and the operation of the business, (iii) allow the full utilization of the business by Company during the performance of the Services, and (iv) keep prime parking spaces available for customer use;
- The Services shall be performed as expeditiously as practicable and within the time parameters set forth in any Addendum;
- Vendor will keep the Services location free and clear of all debris and waste materials created by Vendor’s performance of the Services; and
- Vendor agrees to abide by all Company rules and regulations while on Company premises including, but not limited to, safety, health and hazardous material management rules, and rules prohibiting harassment, security, or theft and any other standards and procedures required by law or policy to be adhered to by Company’s regular employees.
Vendor agrees to abide by all of the Company’s rules and regulations while on the property of any Company’s premises or performing Services, including, but not limited to, safety, health and hazardous material management rules, and rules prohibiting misconduct on Company premises such as physical aggression, harassment, theft, and other standards and procedures required by law or Company policy.
Vendor will employ highly skilled professionals that are properly trained and qualified, and licensed when applicable, for the proposed Services, and perform in a workmanlike manner gauged by industry practices.
Vendor shall perform all cutting, fitting, patching, digging, and back filling of and other secondary work as necessary to complete or perform the agreed upon Services. Any cost created through excessive, defective, or ill-timed work of the Vendor shall be borne by Vendor. Vendor shall undertake and complete all Services with reasonable promptness, and with awareness and consideration of the need to not restrict customer access to Company.
Should any claim for injury, damage, loss or defect of any kind whatsoever, be brought by any third party against a Company as a result of Vendor’s services, Vendor shall indemnify Company in accordance with the terms of Sub-Part E (General Terms and Conditions) of this Agreement.
Should Vendor, in the sole opinion and discretion of a Company, fail to perform in accordance with any term of this Agreement or any further agreements, or otherwise be in breach hereunder, Company may give notice of such breach to Vendor, identifying the failure of performance or breach of Agreement. Such failure of performance by Vendor shall give Company the option of (i) without terminating the remainder of this or other Agreements, requiring Vendor to cure such default or breach at Vendor’s sole expense, and to Company’s satisfaction; (ii) without terminating the remainder of this or other Agreements, curing, repairing, or having such Services performed by others, and Vendor shall be liable for any and all costs incurred which are necessary to cure Vendor’s failure of performance, and Vendor shall reimburse Company for any such costs upon demand, or in the alternative, Company may withhold such costs from the amount due to Vendor as reimbursement for such costs; or (iii) terminating the Vendor’s Services under any agreement, and having the necessary work that is required to cure Vendor’s failure of performance completed by others, and Company shall be entitled to both recover from Vendor all damages and costs incurred as a result of such failure of performance, and set-off any amount to which Vendor may be entitled under this Agreement against the aforementioned damages and costs incurred by Vendor’s performance default.
Service and Equipment Warranty
All equipment and parts installed, and Services provided, by Vendor are unconditionally warranted by Vendor and shall be replaced or re-performed for a period of one year from the date of installation of parts or performance of the Services. This provision is not meant to limit or restrict any warranty coverage or period that may be contained in the manufacturer’s warranty or elsewhere in any applicable Addendum. Vendor shall employ highly skilled professional personnel that are properly educated, trained and qualified for the performance of the Services they are to perform and, if required by applicable law or if standard industry practice, licensed and/or certified personnel for the performance of the Services and shall perform the Services (i) in a good and workmanlike manner, (ii) in accordance with “best practices” for the industry for the Services required or requested, (iii) in accordance with all manufacturers’ and/or Company requirements and recommended service practices and (iv) in a manner necessary to maintain all manufacturers’ (and other) warranties. Unless specified in any Addendum, any parts replaced shall be new and in accordance with manufacturer’s specifications.
Licenses and Permits
Vendor represents, warrants, and agrees that it does and shall at all times comply with federal, state, county, and municipal laws, ordinances, building codes, rules and regulations, without limitation, applicable to the performance of Services hereunder, including, but not limited to, Federal or State Occupational Safety and Health Act regulations, standards of the Environmental Protection Agency, and other laws or codes relating to performance or safety, without limitation. Vendor further represents, warrants, and agrees that if a license or permit is required to be obtained of and from any governing authority for the performance of Services hereunder, Vendor shall be solely responsible for determining the need for such license or permits, and shall obtain such license or permit(s) before performing such Services. In the event Vendor fails to comply with any such requirements, Vendor’s Services may be immediately terminated without compensation. Vendor further represents, warrants, and agrees, either
(I) that there is no requirement that Company be licensed or obtain a permit in order for Company to arrange for the Services provided by Vendor hereunder, or (b) that, if there is such a requirement, or if any such requirement shall hereafter be imposed, Vendor shall notify Company thereof and shall assist Company to obtain such licenses or permits. Vendor agrees that it is solely responsible for any fines or penalties assessed against Vendor, its employees, subcontractors, or independent Vendors by any state or federal regulatory authority for failure to comply with any such laws, regulations, codes, or ordinances of any sort, and that Company is authorized to deduct from any amount due or owing to Vendor, the amount sufficient to satisfy such fines or penalties, or that Vendor will reimburse Company for any such fines or penalties assessed.
Vendor specifically warrants and agrees it does not and shall not knowingly hire or continue to employ aliens not authorized to work in the United States, and that it has and shall continue to verify the employment documentation specified in the Immigration Act and it has and shall properly complete and retain the Immigration and Naturalization Services Form I-9 for all its employees covered by the Immigration Act.
Duty to Defend Against Liens
Vendor unconditionally guarantees that Services performed shall be free from any liens, and shall fully protect, indemnify, defend and save harmless Company from and against any and all liens related to Vendor’s services. Vendor shall promptly pay any amounts owed to any subcontractor who many perform services or supply parts in connection with this or further Agreements, and Vendor will not permit any liens to be placed against Company or any of Company property by any person or entity performing any part of the Services or supplying parts or equipment. Any sums withheld by Company pursuant to this or future Agreements which are withheld as a result of Vendor’s failure to comply with all terms of the Agreements shall NOT entitle Vendor or its subcontractors to file a lien against the property. Upon request by Company, Vendor shall furnish by affidavit, made under penalty of perjury, that so far as Vendor is able to ascertain, no person or entity has a right to any lien for materials, labor, supplies, equipment, tools, or other services in connection with the Services that are to be provided by Vendor. Vendor shall be responsible for any and all costs, expenses, attorney’s fees or other litigation costs or expenses incurred by Company in defense or removal of liens related to such Services regardless of their legal nature or validity, provided that such Services have been completed and Vendor has been paid.
Vendor shall at all times keep the premises free and clear from accumulation of waste, surplus material, debris, dirt, mud, scrap, rubbish and other trash, and such shall be removed from the premises and deposited in appropriate locations. Upon completion of Services, Vendor shall immediately remove such trash, along with all tools and equipment, and all areas shall be left “broom clean” or its equivalent. If Vendor fails to abide by such removal and clean-up procedures, and continue to fail to properly remove and clean-up upon request from Company, then Company may at its option remove and clean-up at Vendor’s expense. Vendor shall indemnify Company for all damages resulting from Vendor’s failure to comply with the terms of this paragraph to the fullest extent provided by Sub-Part E (General Terms and Conditions).
Except as provided in this paragraph, or to the extent specified in advance in any applicable Addendum, Vendor shall not delegate or subcontract any of its obligations in connection with the performance of Services. However, so long as the subcontractor is not a competitor with Company, Vendor may subcontract discrete portions of the Services with advance notice to and prior approval of the Company. Company shall give prompt written notice to Vendor if (i) one of Vendor’s subcontractor’s performance is materially deficient, (ii) good faith doubts exist concerning the subcontractor’s ability to render future performance because of changes in the subcontractor’s ownership, management, financial condition, or otherwise, or (iii) there have been material misrepresentations by or concerning the subcontractor. Vendor will then use its best efforts to replace the subcontractor as soon as reasonably practicable. Vendor shall remain primarily responsible for obligations performed by subcontractors to the same extent as if such obligations were performed by Vendor employees.
Notwithstanding anything in the Vendor Packet to the contrary, Company reserves the right, and Vendor expressly agrees, that at Company’ option, Company may advance funds to any of Vendor’s subcontractors who are otherwise owed money by Vendor for Services performed; provided that (i) any such advance by Company shall be, and shall be deemed to be, a payment by and on behalf of Vendor, and not as an independent obligation of Company; (ii) Company reserves the right to immediately and fully offset the amount of any such payment against any and all other sums otherwise owed by Company to Vendor; and (iii) any advanced funds by Company to subcontractors in excess of the total amount owed by Company to Vendor shall be fully recoverable by Company from Vendor. Although prior notice is not a prerequisite to Company’ effectuating the foregoing, if Company notifies Vendor of its desire to implement this Section in the future (as opposed to for Services already provided by the subcontractors), Vendor will cooperate with Company to create an efficient billing mechanism to handle such new procedures. In addition to such offset rights, upon notice to Vendor specifying in reasonable detail the basis for such set-off, Company may set-off any amount to which it may be entitled in connection with the engagement of Vendor against amounts otherwise payable to Vendor. The exercise of such right of set-off by Company in good faith, whether or not ultimately determined to be justified, will not constitute an event of default under this Agreement. The individual rights and remedies of Company provided herein shall not be exclusive and are in addition to, and cumulative with, any other rights and remedies provided under the Vendor Packet or otherwise by law or in equity.
Liability for Damages to Premises
In addition to any other obligations hereunder, Vendor shall be liable to Company for all merchandise spoilage, Store damage, or other property loss to the extent of Vendor’s negligence or willful misconduct in performance of Services. If such a situation is to arise, Company will verbally notify Vendor within twenty-four (24) hours from time such spoilage, damage or loss is discovered, and give Vendor forty-eight (48) hours to inspect or correct same, unless such spoilage, damage or loss presents a health hazard.
Work for Hire
Both Vendor and Company intend this to be an agreement for Services, and each considers the products and results of the Services to be rendered by the Vendor to be a work made for hire in performance of Services. The Vendor acknowledges and agrees that such Services, and all rights therein, including, without limitation, intellectual property rights, belong to and shall be the sole and exclusive property of Company.
If for any reason the Services would not be considered a work made for hire under applicable law, the Vendor does hereby sell, assign, and transfer to Company its successors and assigns, the entire right, title and interest in and to the intellectual property rights, including, but not limited to, copyright, in the Services and any registrations and applications relating thereto and any renewals and extensions thereof, and in and to all works based upon, derived from, or incorporating the Services throughout the United States.