SERVICE CONTRACT
THIS SERVICE CONTRACT (this “Agreement”) is made this ____ day of ______, 20__, by and between ______, a ______(“Contractor”) and [IPT Property Owner], a [Delaware limited liability company] (“Company”).
NOW, THEREFORE, in consideration of the promises and covenants made herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Services. Contractor shall provide those services described on the Addendum attached hereto as Exhibit A (the “Addendum”), which is incorporated herein and made a part hereof by this reference, together with all other mutually agreed upon services (collectively, the “Services”) to Company in accordance with this Agreement. This Agreement is not an exclusive dealings contract and Company may purchase Services (whether the same, similar, or different) from other service providers at any time. Contractor will be providing the Services for the real property located at ______(the “Property”) and may be onsite at the Property. Any changes or modifications regarding the Services must be in writing and approved by Company.
2. Payment and Conditions Thereto. In consideration for the Services, Company shall pay Contractor the compensation (the “Compensation”) in the amounts and at the times set forth in the Addendum. Unless otherwise expressly provided in this Agreement or the Addendum, Contractor shall invoice Company [monthly] for the Services within thirty (30) days after the provision thereof. Each invoice (each, an “Invoice”) shall contain sufficient detail of any amounts due. Notwithstanding anything in this Agreement (including in the Addendum), to the contrary, (i) Company shall not be obligated to pay any Invoice earlier than thirty (30) days after its receipt by Company, (ii)Company shall not be obligated to pay any portion of an Invoice which it disputes in good faith and submits to dispute resolution pursuant to this Agreement, and (iii) Contractor shall be solely responsible for all taxes with respect to any Compensation due hereunder or any Services provided hereunder, including, but not limited to, income, sales, use and gross receipts taxes. As a condition precedent to any payment, Contractor shall deliver promptly to Company such unconditional waivers or releases of liens in forms as reasonably requested by Company with respect to the Services provided. Final payment shall not relieve Contractor of responsibility for faulty, defective, or recalled materials or workmanship connected with the Services. Unless otherwise specified, Contractor shall correct, repair and remedy any defect in the Services or in the materials or equipment incorporated in the Services installed or supplied by Contractor, regardless of the cause of the defect or any statutes of limitation.
3. Term and Termination.
a. This Agreement shall become effective immediately on the Contract Start Date (as defined and set forth in the Addendum) and shall remain in effect until the earlier of (such earlier date being the (“Termination Date”): (i) the Contract End Date (as defined and set forth in the Addendum), (ii) the date on which title to the Property ceases, for any reason, including without limitation a sale, a foreclosure or a conveyance in lieu of foreclosure, to be owned by Company or an affiliate of Company; (iii) a date designated by either party that is three (3) days after defaulting party receives written notice from the non-defaulting party of a default in its performance of any of the terms and conditions of this Agreement, subject to any cure periods set forth herein; or (iv) a date designated by Company in a written notice of termination of this Agreement without cause (for any reason or no reason) that is thirty (30) or more days after Contractor receives such written notice.
b. Notwithstanding the above, if, after the Contract End Date, Company orders any further services from Contractor, then this Agreement shall continue on a month to month basis thereafter until either Company or Contractor gives thirty (30) days written notice of termination. If this Agreement is terminated early for any reason or no reason, however, and Company thereafter orders any Services from Contractor, the parties acknowledge and agree that this Agreement shall not be deemed to be reinstated.
c. If this Agreement is terminated early by Company as provided in this Agreement, the sole liability and obligation of Company is for Company to pay for those Services provided to Company prior to the Termination Date; provided, however, that Company may offset any damages incurred by it against such amounts owed to Contractor and Contractor shall remain liable to Company for any damages caused by a default by Contractor.
4. Contractor’s Covenants, Representations and Warranties. Contractor covenants, represents, and warrants to Company as follows:
a. The Services shall be performed by adequately trained, competent personnel, in a highly professional manner, in accordance with applicable industry standards and in accordance with the terms and conditions of this Agreement. To the extent the Services include the provision of any products, the products shall (i) be free of defects, (ii) be fit for their intended use, (iii) conform to the specifications, terms and conditions set forth in this Agreement, and (iv) be lien free and conveyed with good title.
b. Contractor shall, and shall cause Contractor’s employees, subcontractors, consultants, agents and representatives (collectively, “Contractor’s Representatives”) to, in performing the Services, comply with all applicable federal, state and local laws, ordinances, regulations and orders (collectively, “Laws”). If Contractor receives notice or becomes aware of any violation or potential violations of any Law, Contractor promptly shall take such actions as may be necessary to prevent any further violations and promptly shall provide written notice to Company of such violations or potential violations.
c. Contractor shall, prior to commencing performance of any of the Services, obtain, and shall maintain throughout the term of this Agreement, all approvals, licenses and/or permits required by any Law or governmental agency, board or other jurisdiction in order to provide the Services. Contractor represents and warrants that Contractor is and will continue to be fully licensed in the State where the Services will be performed.
d. Contractor shall maintain sufficient and suitable equipment and personnel to meet the requirements and provide the Services contracted for pursuant to this Agreement.
e. Contractor promptly shall notify Company of any defects or other issues that impede or preclude Contractor from providing any or all of the Services. Contractor represents that it has investigated the conditions necessary to provide the Services and assumes the risks related thereto.
f. [Upon completion of the Services at the Property, Contractor shall (i) restore the Property to its original condition; (ii) leave the Property clean and free of all tools, equipment, waste materials and rubbish; (iii) be liable for any costs, expenses or damages to the Property with respect to restoration thereof to the original condition of the Property; and (iv) be liable for the cost of any utilities left on by Contractor or its contractors, subcontractors, or agents after completing the Services (as such utilities are reasonably calculated by Company).]
g. Contractor shall be solely responsible for the means, methods, techniques and procedures used by Contractor to perform the Services under this Agreement.
h. Contractor shall be responsible for damage to or theft of real or personal property of Company or tenants or other occupants of the Property caused by Contractor or Contractor’s Representatives.
i. Contractor shall comply with all reasonable rules and regulations promulgated with respect to entry into the Property and shall perform the Services in a manner to reasonably minimize annoyance, interference or disruption to any tenants or other occupants or invitees at the Property.
j. Contractor shall, as reasonably requested by Company, communicate and provide reports to Company with respect to the provision of Services hereunder.
k. Contractor represents and warrants that the Services shall not infringe upon any trademark, copyright, patent or other intellectual property right (collectively, “Intellectual Property”) and that it owns all such Intellectual Property rights utilized in providing the Services and that Company may use such Services as contemplated hereunder without infringing upon any such Intellectual Property.
l. [Risk of loss for any products shall remain with Contractor until such products shall be delivered and accepted by Company. Any products shall be delivered, at Contractor's costs of shipment, freight and other similar charges, to the Property. Contractor shall ship orders of products in full, and not partial orders (unless Company, in its sole discretion, agrees to accept partial orders). Contractor may not substitute products without the prior written approval of Company, which approval may be given or withheld in Company’s sole discretion. Time shall be of the essence with respect to this Agreement and contracts arising from it. If Contractor fails to deliver on time, Company may purchase replacements elsewhere and Contractor shall be liable for the actual and reasonable costs and damages Company incurs. Contractor shall notify Company promptly if it is unable to comply with a specified delivery date, but such notification shall not constitute an amendment to the delivery date without Company’s approval.]
m. Contractor is not a Prohibited Person (as defined below); to Contractor’s knowledge, none of Contractor’s Representatives acting or benefiting in any capacity in connection with this Agreement are Prohibited Persons; and none of the funds or other assets, if any, to be transferred to Company hereunder are the property of, or beneficially owned, directly or indirectly, by a Prohibited Person, nor are such funds or other assets the proceeds of any specified unlawful activity as defined by 18 U.S.C. § 1956(c)(7). “Prohibited Person” means any of the following: (i) a person or entity that is listed in the Annex to, or is otherwise subject to the provisions of, Executive Order No. 13224 on Terrorist Financing (effective September 24, 2001) (the “Executive Order”); (ii) a person or entity owned or controlled by, or acting for or on behalf of any person or entity that is listed in the Annex to, or is otherwise subject to the provisions of, the Executive Order; (iii) a person or entity that is named as a “specially designated national” or “blocked person” on the most current list published by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) at its official website, http:www/treas.gov/offices/enforcement/ofac; (iv) a person or entity that is otherwise the target of any economic sanctions program currently administered by OFAC; or (v) a person or entity that is affiliated with any person or entity identified in subclause (i), (ii), (iii) and/or (iv) above.
n. Contractor shall coordinate its Services with that of any other contractors, vendors, and suppliers of Company as directed by Company or its agents from time to time.
o. If Contractor rents or leases equipment to complete and/or perform the Services, Contractor agrees that it shall be solely responsible for such rented/leased equipment until it is returned to its source or supply. Such responsibility shall include, but not be limited to, liability, fire, theft, vandalism and use by any unauthorized persons. Contractor shall indemnify and hold harmless Company and the Indemnified Parties (as defined below) from and against any and all Losses (as defined below) relating to the possession, use or presence on the jobsite of such rented/leased equipment.
5. Warranty.
a. Notwithstanding any other term of this Agreement to the contrary, Contractor has not and will not disclaim any implied or express warranties.
b. [Contractor acknowledges and agrees that Company shall not be required to inspect or approve any of the Services (including any products), and Contractor agrees that the failure of Company to discover defects or deficiencies in any of the Services (including any products) shall not constitute an acceptance of any defective or deficient Service and shall not affect, diminish or relieve Contractor of its responsibilities pursuant to this Agreement. If any products supplied do not conform to those warranted, Contractor timely shall substitute conforming products; provided, that, if Contractor is required to produce and supply conforming products as a result of a breach of this warranty, Company shall not be responsible for any production, freight, insurance, delivery or other charges or fees with respect thereto.]
c. [Contractor fully warrants and unconditionally guarantees that all products supplied in connection with the Services and this Agreement are new and of good workmanship quality, free of faults and defects and in conformity with the plans and specifications as set forth herein and in the Addendum. Upon written notice from Company that products or workmanship are not satisfactory or are defective, or in the event of recall from any governmental entity, manufacturer or supplier, Contractor agrees within ten (10) days after notice to begin and proceed with reasonable diligence to repair or replace said products in satisfactory manner at its own cost and expense. If Contractor fails to proceed as above stated, Company at its option and without further notice to Contractor may proceed to arrange for such work to be done at the expense of Contractor, and Contractor specifically agrees to pay for same within five (5) days after receipt of bill from Company reflecting such work, or Company may deduct payment for such work from monies not yet paid to Contractor. If all monies owed to Contractor have been paid, Contractor shall be liable for all costs of collection of such amounts. If in installing or repairing its own work Contractor damages the work of anyone else, the repair and cost for repairs of such other work is included in Contractor’s responsibility.]
6. Insurance. At all times during this Agreement, Contractor agrees to maintain, at its own cost and expense, insurance of the types and in the amounts as set forth on Exhibit B attached hereto and made a part hereof and incorporated herein by this reference. Contractor shall require that all subcontractors brought onto the Property have insurance coverage, at the Contractor’s or subcontractor’s expense, in the amount set forth on ExhibitB for Contractor’s insurance. All insurance provided by Contractor shall be primary, and insurance maintained by Company, if any, shall be excess of Contractor’s insurance. Contractor shall arrange with its insurance companies to endorse its policies accordingly.