These Material Terms and Conditions are the rights and the obligations of a general contractor and a subcontractor when the parties enter into a material subcontractor agreement. These terms and conditions contain general provisions in respect of the rights and obligations of the contracting parties as well as terms and conditions which are unique to the material services to be performed by the subcontractor. This document is intended to provide standard clauses commonly used material subcontractor agreements, but the terms can be customized to best fit the needs of the contracting parties. As drafted these terms contain a subcontractor’s warranty.
These Material Terms and Conditions are the rights and the obligations of a general contractor and a subcontractor when the parties enter into a material subcontractor agreement. These terms and conditions contain general provisions in respect of the rights and obligations of the contracting parties as well as terms and conditions which are unique to the material services to be performed by the subcontractor. This document is intended to provide standard clauses commonly used material subcontractor agreements, but the terms can be customized to best fit the needs of the contracting parties. As drafted these terms contain a subcontractor’s warranty. Material Terms and Conditions MATERIAL TERMS AND CONDITIONS 1. HAZARDOUS MATERIALS In the event the Subcontractor encounters any hazardous materials while performing the Work, the Subcontractor may stop the Work until such time a fee has been negotiated between the General Contractor and the Subcontractor for the removal of the hazardous materials. Hazardous materials shall mean any material that because of its quantity, concentration or physical chemical characteristics may pose a real hazard to human health or the environment. Hazardous materials shall include, but not be limited to, flammable and combustible material, toxic material, corrosive material, aerosols, compressed gases, mercury, asbestos, bulk fuels, medical waste and chemical, biological and radiological materials. 2. REMOVAL OF DEBRIS Upon completion of the Work, the Subcontractor agrees that it shall promptly remove all debris and equipment from the Premises and leave the Premises in a good state of cleanliness. 3. ARBITRATION In the event a dispute arises under this Agreement, the General Contractor and the Subcontractor hereby agree to attempt to resolve such dispute with a mutually agreed upon mediator. Such mediation shall occur in the City of ______________. Any costs and fees other than attorney fees shall be shared equally between the General Contractor and the Subcontractor. If it proves impossible to arrive at a mutually satisfactory solution, the General Contractor and the Subcontractor hereby agree to submit the dispute to binding arbitration in the same city or region, conducted on a confidential basis pursuant to the laws of the governing jurisdiction. Any decision or award as a result of any such arbitration proceeding shall include the assessment of costs, expenses and reasonable attorney's fees and shall include a written determination of the arbitrators. An award of arbitration shall be final and binding on the General Contractor and the Subcontractor and may be confirmed in a court of competent jurisdiction. The prevailing party shall have the right to collect from the other party its reasonable costs and attorney fees incurred in enforcing this Agreement. 4. FEES In the event the General Contractor fails to make the payment of Fees to the Subcontractor as contemplated in the Agreement, the Subcontractor shall have the right to cease all Work at the Premises until such time the General Contractor makes all payments due and owing to the Subcontractor. In the event the General Contractor fails to make any payment of fees due and owing to the Subcontractor within ______ (___) days of such payment being due, the Subcontractor shall have the right to breach the failure of such payment as a material breach of 3 the Agreement and shall have the right to terminate the Agreement and not complete the Work contemplated therein. 5. COMPLIANCE WITH BUILDING REGULATIONS The General Contractor agrees that the Subcontractor shall not be held liable or responsible for the failure by the General Contractor to adhere to any relevant building codes, regulations or ordinances. The Subcontractor shall not be held responsible or liable for any existing abnormal or unusual conditions at the Premises. 6. ADDITIONAL WORK In the event any additional work required to be done by Subcontractor will be provided by the Subcontractor upon written authorization of the General Contractor. The Subcontractor and the General Contractor agree that payment to the Subcontractor of any additional work required to be done shall be negotiated between the Subcontractor and the General Contractor prior to the commencement of any additional work by the Subcontractor. 7. ASSIGNMENT The General Contractor and the Subcontractor agree that the Subcontractor may/may not assign any of the Work contemplated herein to a third party with/without the prior written consent of the other party. 8. FORCE MAJEURE Neither the General Contractor nor the Subcontractor is responsible for the failure to fulfil its obligations under this Agreement or for delay in doing so if such failure or delay is due to circumstances beyond its control, such as, but not limited to, acts of God, acts of government, war, riots, strikes, accidents in transportation. The General Contractor and the Subcontractor agree to immediately provide notice of any such circumstance and hereby undertakes to restore the status quo as soon as is feasible. 9. INSURANCE The General Contractor will maintain at its sole cost and expense, fire insurance in an amount of not less than ______________ ($______) Dollars. Such insurance coverage shall include construction, vandalism and malicious mischief clauses. The insurance in place by the General Contractor will name the General Contractor and its subcontractors as additional insureds under the policy. In the event the General Contractor fails to obtain and maintain such insurance coverage for the Work to be performed, the Subcontractor may at its sole option purchase such insurance at the costs of the General Contractor. The Subcontractor agrees that it will prior to the commencement of the Work and throughout the duration of the Work obtain and maintain Worker’s Compensation Insurance for the Subcontractor’s employees. The Subcontractor shall maintain adequate coverage against any 4 claims which may be made against the Subcontractor for Worker’s Compensations, unemployment insurance and taxes. The Subcontractor must maintain public liability, property damage and builder’s risk insurance in the aggregate amount of _____________ ($__________) Dollars for the duration of the Agreement, with the General Contractor. 10. INDEMNIFICATION The General Contractor hereby agrees to indemnify and hold the Subcontractor, its affiliates, successors and assigns and its employees, harmless from and against any and all claims which may arise out of the General Contractor’s Work at the Premises or from the conduct of the General Contractor’s business at the Premises. The General Contractor further agrees to indemnify and hold the Subcontractor, its affiliates, successors and assigns and its employees harmless from and against any and all claims arising from any breach or default in the performance of any of the obligations on the General Contractor’s part to be performed under the terms of this Agreement or arising from any negligence of the General Contractor or any of the General Contractor’s agents, subcontractors or employees and from and against all costs, including reasonable attorney fees, expenses and liabilities incurred in the defense of any such claim or any action or legal proceeding brought thereon. 11. GOVERNMENTAL COMPLIANCE The General Contractor shall be liable and responsible for and shall ensure at all times that the General Contractor and its employees and subcontractors comply will all local, state and federal laws. The General Contractor shall at all times while the Work is being performed at the Premises, ensure that clean drinking water and suitable toilet facilities are available for use. 12. MATERIAL The amount Fees payable under this Agreement are subject to increase if the cost of Materials increases by more than __________ (_____%) percent over the amount quoted to the General Contractor by the Subcontractor between the date of this Agreement and delivery of such Materials to the Premises for the Work. In the event of such increases, and upon written documentation establishing the extent of the increase, the Fees will be equitably adjusted. 13. SAFETY At all time while performing the Work, the Subcontractor and any of its employees shall: (a) wear hard hats, safety boots or shoes, long pants and shirts; and (b) wear safety glasses when performing tasks where the risk of eye injury is probable. 5 The Subcontractor agrees to accept responsibility for the prevention of accidents to workers engaged upon or in the vicinity while performing the masonry services at the Premises. The Subcontractor agrees to adhere to all federal, state, municipal and local laws, rules, regulation, codes, standards, notices and requirements concerning safety while performing masonry services and shall be solely responsible for the training of the Subcontractor’s employees and its sub- subcontractors employees as required to comply with federal and state statues. 14. ORDERS FOR MATERIALS Prior to the beginning of each week/month throughout the duration of the term of the Agreement, the General Contractor shall provide an estimate of the quantities of the materials it expects to require for the performance of the Work. 15. DELIVERY OF MATERIALS The Subcontractor shall deliver the materials to the General Contractor at the Premises or to the place or places and by the method directed by the General Contractor to the Subcontractor in writing. The General Contractor/Subcontractor will be responsible for the unloading of the materials at the Premises or to the place or places. The General Contractor shall accept manufacturing tolerances accepted in the trade and weights or quantities varying by not more than _____ (___%) percent from the agreement weight or quantity and shall pay pro rata for the actual weight or quantity delivered. 16. SUBCONTRACTOR’S WARRANTY The Subcontractor warrants that upon delivery of the materials to the General Contractor the materials are sold and provided to the General Contractor with good title. The Subcontractor does not warrant that the materials provided to the General Contractor are of satisfactory quality or fit for any particular purpose of or intended use by the General Contractor, and it is for the General Contractor to satisfy itself that the products are so fit. The General Contractor agrees that it will examine the materials as soon as reasonably practicable after delivery by the Subcontractor. The General Contractor agrees to immediately notify the Subcontractor of any incomplete or failed delivery, loss or damage during carriage or if the materials fail to comply with Subcontractor’s warranty. 6 17. GENERAL PROVISIONS The Subcontractor warrants to the General Contractor that the materials to be provided for the Work will comply with the specifications mutually agreed upon by the parties from time to time, but does not warrant that the materials to be provided for the Work are suitable for any particular purpose. All of the materials to be provided to the General Contractor for the Work will be delivered by the Subcontractor to the General Contractor pursuant to the agreed upon delivery schedule set out on Schedule “B”. 7 “All forms and documents from DocStoc are provided “as is” without warranty of any kind, express or implied. DocStoc does not provide any legal advice, and assumes no responsibility for the enforceability or effectiveness of its documents. Users should consult with a lawyer if there is any question as to the appropriateness of the documents for their particular situation.” 8
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