Partner Registration
MASTER SUBCONTRACT AGREEMENT
This MASTER SUBCONTRACT AGREEMENT (this "Agreement") is made and entered into as of Todays date of acceptance (the "Effective Date"), by and between All Party Rentals Factory, Inc., a California corporation with its principal place of business at 451 W Lambert Rd Suite 214, Brea, CA 92821 ("All Party Rentals Factory, Inc "), and Subcontractor noted as a partner. Principal place of business at has been documented on your application form titled partner registration.
WITNESSETH:
WHEREAS, All Party Rentals Factory, Inc desires to engage Subcontractor to perform services to be described on one or more mutually agreed scopes of work (the “Services”) to be set forth in a Statement of Work (hereinafter defined) between the parties, and Subcontractor desires to perform the Services for All Party Rentals Factory, Inc, upon the terms and subject to the conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. SCOPE OF SERVICES.
1.1 Upon the terms and subject to the conditions set forth in this Agreement and in any statement of work (a “Statement of Work”) agreed to and signed by All Party Rentals Factory, Inc and Subcontractor which will be incorporated herein as if fully set forth in this Agreement, Subcontractor shall perform the Services that (a) the parties mutually agree to set forth on a Statement of Work and (b) All Party Rentals Factory, Inc orders by the delivery to Subcontractor of a email work order (“Email work order”) that sets forth a description of those Services, the name of the All Party Rentals Factory, Inc customer, the location of the job site and the performance schedule. Notwithstanding any provision of this Agreement to the contrary, All Party Rentals Factory, Inc shall have no obligation to purchase any minimum quantity of any Service during the term of this Agreement.
1.2 Nothing in this Agreement shall restrict All Party Rentals Factory, Inc's right to negotiate, on an order-by-order basis, with Subcontractor any flow-down or pass-through terms and conditions which are either necessary or required by All Party Rentals Factory, Inc or its customers or end-users.
2. PAYMENT RATES AND BILLING.
2.1 The price for Services on individual projects shall be set forth on the Statement of Work and Email work order noted as a percentage tier commission. Subcontractor shall pay any and all foreign, federal, state or local sales, use or excise taxes, duties, fees or similar charges imposed upon the performance of those Services or the delivery or use of any Work Product, except as otherwise required by applicable law or provided in this Agreement by its commissions. W-9 1099 IRS form will be required by sub-contractor with an authorized ACH form. All Party Rentals Factory, Inc shall not have any liability for any other expenses or amounts unless otherwise provided for herein or approved in advance on a All-Party Rentals Factory, Inc Email work order.
2.2 Payment shall be made by All Party Rentals Factory, Inc not later than the delivery date that we order. If the end client cancels the order the sub-contractor is entitled to a 10% fee of the order excluding any taxes or credit card processing fees.
2.3 All Party Rentals Factory, Inc shall be entitled to retain a one hundred percent (100%) hold back from any payment due to Subcontractor to secure completion of the project in accordance with the terms of the Statement of Work. Such amounts shall be paid to Subcontractor (after any authorized offsets) with the final progress payment upon completion of the project and after final inspection and acceptance by All Party Rentals Factory, Inc and its customer.
2.4 In addition, All Party Rentals Factory, Inc may withhold any payment to the extent that All Party Rentals Factory, Inc deems it necessary to protect All Party Rentals Factory, Inc from loss as a result of (a) defective work not remedied, (b) claims filed or claims which may be filed, (c) failure of Subcontractor to make payments to its suppliers or employees, (d) evidence that performance of this Agreement cannot be completed for the balance then unpaid or (e) damages to third parties. When these grounds are cured, All Party Rentals Factory, Inc shall make any payment withheld because of them.
3. EXTRA WORK.
3.1 Subcontractor shall document price adjustments for extra work or changes under this Agreement in writing by using an acceptable subcontract change order form, as approved by All Party Rentals Factory, Inc (“Change Order”). Subcontractor shall specify the nature of the extra work or change in detail as a new order via the website. All Party Rentals Factory, Inc shall accept the Change Order by Email work order once payment has been received and order has been confirmed.
3.2 Subcontractor shall not initiate any extra work or charges over and above the not-to-exceed amount stated in the Email work order unless All Party Rentals Factory, Inc delivers to Subcontractor a revision to the Email work order or Statement of Work.
4. PERFORMANCE.
4.1 Subcontractor shall neither initiate the performance of any Service nor incur any cost on behalf of All Party Rentals Factory, Inc unless and until All Party Rentals Factory, Inc has authorized such performance by the delivery to Subcontractor of a Email work order in accordance with this Agreement.
4.2 Subcontractor shall perform the Services in accordance with the applicable Statement of Work, all applicable specifications, the generally accepted standard of care applicable to the performance of similar services and the performance schedule set forth in the related Email work order. Subcontractor shall assign experienced and skilled individuals that Subcontractor, after consultation with All Party Rentals Factory, Inc, determines are reasonably necessary to permit Subcontractor to perform the Services, and Subcontractor shall control the day-to-day activities of those individuals.
4.3 All Party Rentals Factory, Inc shall be entitled to make weekly inspections and performance evaluations of Subcontractor’s work. If such inspections reveal that Subcontractor has failed to perform services in accordance with the Statement of Work, All Party Rentals Factory, Inc shall provide Subcontractor a written statement regarding the deficiency. If the deficiencies are not cured within seven (7) days after the written notice, All Party Rentals Factory, Inc shall be entitled to terminate this Agreement.
4.4 If the performance of any Service is delayed by Subcontractor’s failure to perform its obligations hereunder so that the Service cannot reasonably be expected to be performed in accordance with the performance schedule set forth in the related Email work order, then (i) Subcontractor shall immediately deliver to All Party Rentals Factory, Inc notice to such effect, and (ii) upon the request of All Party Rentals Factory, Inc, Subcontractor shall perform such alternative Services as All Party Rentals Factory, Inc may reasonably request and reimburse All Party Rentals Factory, Inc for any and all additional costs incurred by All Party Rentals Factory, Inc in connection therewith.
4.5 Subcontractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury and loss to (a) all employees on the work site and all other persons who may be affected thereby, (b) all the materials and equipment to be incorporated therein, whether in storage on or off site, under the care, custody or control of the Subcontractor and (c) any other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of performing the Services. Subcontractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Services. Subcontractor shall give all notices and comply with all applicable laws, ordinances, rules, regulations and lawful orders of any public authority bearing on the safety of persons or property or their protection from damage, injury or loss.
4.6 Each party agrees that, during the term of this Agreement it shall not directly solicit for hiring any then-current employee of the other party that contributes to the performance of the Services. This provision shall not apply to or be breached by a party advertising open positions, participating in job fairs and the like, or using other forms of soliciting candidates for employment, even if responded to by an employee of the other party, provided the same is not directed specifically at a given employee of the other party.
5. CANCELLATION AND RESCHEDULING.
5.1 All Party Rentals Factory, Inc may cancel the performance of any Service by the delivery to Subcontractor of notice to such effect at any time.
5.2 All Party Rentals Factory, Inc may reschedule the performance of any Service by the delivery to Subcontractor of notice to such effect at any time; provided, however, that All Party Rentals Factory, Inc shall not accelerate the performance schedule for any Service without the prior consent of Subcontractor.
6. REPORTS. Upon the request of All Party Rentals Factory, Inc, Subcontractor shall deliver to All Party Rentals Factory, Inc the detailed reports and documentation with respect to the Services that are specified in the applicable Statement of Work, or otherwise mutually agreed.
7. INSURANCE.
7.1 Subcontractor shall maintain the following insurance with reputable insurance companies reasonably acceptable to All Party Rentals Factory, Inc and duly licensed to conduct business in jurisdictions in which the Services will be performed:
|
Type |
Minimum Limits |
|
Worker Compensation and Occupational Disease Insurance as required by law |
Statutory |
|
Employer's Liability Insurance Utilizing excess liability policy to achieve limit. |
$1,000,000 |
|
Comprehensive General Liability Insurance, including contractor's liability, completed operations and products liability insurance, in each case on an occurrence basis, with personal injury and broad form property damage coverage |
General Aggregate: $1,000,000 Products/Completed Operations: $1,000,000 Personal Injury (Each Person): $1,000,000 Bodily Injury (Each Accident): $1,000,000 Property Damage (Each Accident): $1,000,000 Combined Single Limit: $1,000,000
|
|
Comprehensive Automobile Liability Insurance, including owned vehicle and non-ownership and hired car coverage |
Bodily Injury (Each Person): $1,000,000 Bodily Injury (Each Occurrence): $1,000,000 Property Damage (Each Occurrence): $1,000,000 Property Damage (Total): $1,000,000 Combined Single Limit: $1,000,000 |
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- Subcontractor shall provide All Party Rentals Factory, Inc with an applicable certificate of insurance that (a) evidences the existence of such insurance, (b) provides that such insurance shall not be cancelled except upon the expiration of 30 calendar days after the delivery to All Party Rentals Factory, Inc of notice to such effect and (c) names All Party Rentals Factory, Inc as an additional insured with respect to Subcontractor's Comprehensive General Liability Insurance.
- Subcontractor and All Party Rentals Factory, Inc waive all rights against (a) each other and the subcontractors of any tier, consultants, agents, and employees, each in favor of the other, and (b) the owner of the work site and separate contractors, if any, and their subcontractors and sub-subcontractors, for damages caused by any perils to the extent covered by any property insurance applicable to the Services, except such rights as they may have to the proceeds of such insurance. Subcontractor and All Party Rentals Factory, Inc shall require of its subcontractors of any tier and consultants, by appropriate written agreements, similar waivers each in favor of all other parties enumerated in this section.
7.4 If Subcontractor fails to comply with the provisions of this Section 7, then All Party Rentals Factory, Inc may terminate this Agreement by the delivery to Subcontractor of notice to such effect.
8. RIGHTS IN WORK PRODUCT.
8.1 To the extent that any service rendered or tangible item delivered by Subcontractor to All Party Rentals Factory, Inc hereunder (“Work “Product”) includes material that is able to be copyrighted or patented under U.S. copyright and patent laws, Subcontractor agrees that these are “works for hire” as that term is defined under such laws and that All Party Rentals Factory, Inc shall own all copyrights and patents thereto, and Subcontractor hereby grants and agrees to grant to All Party Rentals Factory, Inc all of Subcontractor's right, title and interest in and to any and all tangible and intangible material. This includes, without limitation, any and all services product, trade secrets, copyrights and patentable or unpatentable inventions, any and all registrations of copyrights, any and all applications for patents and any and all patents that may issue thereunder) that are first discovered, created, developed or otherwise acquired by Subcontractor or any of its employees, agents or subcontractors during the term of this Agreement resulting from, or arising out of or in connection with, the performance of the Services. Upon the request of All Party Rentals Factory, Inc, Subcontractor shall, at All Party Rentals Factory, Inc’ expense, take, or cause to be taken, all actions necessary to permit All Party Rentals Factory, Inc and its successors and assigns (i) to register, file, prosecute, maintain and protect any and all trade secrets, copyrights, applications for patents or patents that may issue thereunder included in the Work Product and (ii) to perfect the full ownership of all right, title and interest in and to the Work Product. Upon the expiration of the term, or the sooner termination of this Agreement, Subcontractor shall deliver to All Party Rentals Factory, Inc any and all Work Product and related information, and all copies thereof, then in the possession of Subcontractor.
8.2 To the extent that the Work Product does not qualify as works for hire under applicable law as set forth above because Subcontractor already held patents or copyrights therein prior to the commencement of this Agreement, Subcontractor hereby grants to All Party Rentals Factory, Inc an irrevocable, paid-up, non-exclusive, worldwide license (i) to make, use and sell any Work Product under any and all patent rights owned, controlled or in the process of development by Subcontractor in any manner that All Party Rentals Factory, Inc may desire, (ii) to display, perform, use, reproduce or prepare derivative works based on or distributed under any and all copyrights owned or controlled by Subcontractor on any document or other tangible material delivered by Subcontractor to All Party Rentals Factory, Inc in connection with the performance of the Services in any manner that All Party Rentals Factory, Inc may desire and (iii) to disclose and use any and all of the information contained in any document or other tangible material delivered by Subcontractor to All Party Rentals Factory, Inc in connection with the performance of the Services in any manner that All Party Rentals Factory, Inc may desire.
8.3 The provisions of this Section 8 shall survive the expiration of the term, or the sooner termination, of this Agreement for an indefinite period after such expiration or termination.
9. ACCEPTANCE.
9.1 Acceptance of the Services shall occur upon Subcontractor’s receipt of an acceptance notice (“Acceptance Notice”) signed by All Party Rentals Factory, Inc’ customer or All Party Rentals Factory, Inc. The Acceptance Notice shall be provided to Subcontractor upon project completion.
9.2 If there are any incomplete items or outstanding quality items requiring resolution at the end of the performance of any job, Subcontractor shall so note them on a job completion notice form (“Job Completion Notice”), together with the party responsible for resolution and an estimated timeframe required for resolution. Upon resolution of the incomplete or outstanding items, Subcontractor may submit an invoice for the work completed.
9.3 Subcontractor shall perform a final check with an authorized representative of All Party Rentals Factory, Inc on all installation activity to ensure workmanship requirements have been met.
10. WARRANTIES AND STANDARDS.
10.1 Subcontractor warrants that all Services provided pursuant to this Agreement shall conform to All Party Rentals Factory, Inc specifications, which have been accepted by Subcontractor and that all Services will be free of defects during the event period of (the "Warranty Period"). If any of the Services prove defective during the Warranty Period, Subcontractor shall correct the defect at no charge to All Party Rentals Factory, Inc. Subcontractor shall not be obligated to furnish services under this warranty to correct damage resulting from attempts by personnel other than Subcontractor's representatives to correct such defects.
10.2 All Party Rentals Factory, Inc may engage Subcontractor to perform out-of-warranty repairs subject to a charge quoted by Subcontractor and accepted by All Party Rentals Factory, Inc. Subcontractor shall not perform any such repairs until authorized to do so by All Party Rentals Factory, Inc.
10.3 Subcontractor shall assign to the performance of the Services employees or agents of Subcontractor who are experienced and highly skilled in their profession, who shall perform the Services in accordance with the highest standards of workmanship in their professions. Upon the request of All Party Rentals Factory, Inc, Subcontractor shall remove from the performance of the Services any employee or agent who, in All Party Rentals Factory, Inc’ unrestricted opinion, may be guilty of improper conduct or is not qualified or needed to perform the work assigned. Subcontractor shall, within four working hours, remove any of its employees or agents assigned to All Party Rentals Factory, Inc when so directed.
10.4 Subcontractor warrants that it holds all licenses and permits required by law to perform the Services. Subcontractor shall be lawfully licensed and regulated by the Contractor's State License Board. Subcontractor shall secure and pay for all permits, fees, licenses, and inspections by government agencies necessary for proper execution and completion of the Services set forth in any Statement of Work.
10.5 Subcontractor warrants that it is not a party to any other existing agreement which would compromise ethics or the confidentiality required to professionally perform the Services.
11. INDEMNIFICATION.
11.1 Subcontractor shall indemnify and defend All Party Rentals Factory, Inc and each of its affiliates, directors, officers, employees and agents (the "All Party Rentals Factory, Inc Indemnitees") against, and hold the All Party Rentals Factory, Inc Indemnitees harmless from, any and all claims, actions, proceedings, liabilities, obligations, losses, damages, costs or expenses (including reasonable attorneys' fees) to the extent (i) relating to death or injury to any person or damage to any property and (ii) resulting from, or arising out of or in connection with, (A) any breach by Subcontractor of any covenant, representation or warranty made by Subcontractor in this Agreement or (B) any act or omission constituting negligence or willful misconduct by Subcontractor or any of its subcontractors, directors, officers, employees or agents during the performance of Subcontractor's obligations under this Agreement. If All Party Rentals Factory, Inc receives notice of any claim, action or proceeding resulting from, or arising out of or in connection with, any such breach, act or omission, then (i) All Party Rentals Factory, Inc shall (A) promptly deliver to Subcontractor written notice thereof, (B) grant to Subcontractor the sole authority, through counsel chosen solely by Subcontractor, to assume the defense thereof and to settle such claim, action or proceeding and (C) reasonably cooperate with Subcontractor in connection therewith, and (ii) All Party Rentals Factory, Inc may participate, at its expense, in such defense or settlement.
11.2 The provisions of this Section 11 shall survive the expiration of the term, or sooner termination, of this Agreement for an indefinite period thereafter.
12. INTENTIONALLY DELETED.
13. CONFIDENTIALITY.
13.1 "Confidential Information" shall mean information that is (i) disclosed by, or on behalf of, either party ("Disclosing Party") to the other party ("Recipient") before or after the date hereof (but before the expiration or sooner termination of this Agreement) in connection with the purpose of this Agreement in written, electronic, photographic or other tangible form (or in oral or visual form and summarized in written form within 30 days after its disclosure) and (i) marked "Confidential," "Proprietary" or "Private" (or in any other manner that indicates that it is confidential or proprietary). Notwithstanding the foregoing, no information disclosed by, or on behalf of, Disclosing Party to Recipient shall constitute Confidential Information to the extent that such information (i) is known to Recipient before receipt thereof, (ii) is generally available to the public at the time of receipt thereof (or thereafter becomes generally available to the public without the breach by Recipient of any obligation to Disclosing Party or any third party), (iii) is received by Recipient from a third party after receipt thereof without the breach by such third party of any obligation to Disclosing Party or any third party or (iv) is independently developed by Recipient after receipt thereof without the use of thereof.
13.2 Recipient shall not use Confidential Information for any purposes other than the purpose of this Agreement. Recipient shall not disclose Confidential Information to any of its directors, officers or employees other than those who have a need to know for the purpose of this Agreement and all such persons shall have an obligation to use and disclose such Confidential Information solely in accordance with this Agreement. Recipient shall not disclose any Confidential Information to any third party other than those affiliates, subcontractors or agents of Recipient who have a need to know for the purpose of this Agreement and who have entered into a written confidentiality agreement with Subcontractor to use and disclose such Confidential Information solely in accordance with this Agreement.
13.3 Recipient shall hold the Confidential Information in strict confidence and shall use the same degree of care to safeguard Confidential Information as it uses for its own confidential information of like importance, but no less than reasonable care. Recipient shall use all reasonable precautions, consistent with Recipient’s treatment of its own confidential information of a similar nature, to prevent the unauthorized use or disclosure of the Confidential Information, including, without limitation, protection of the Confidential Information from theft, dissemination, publication, duplication and unauthorized discovery. Recipient shall not make any copies, synopses or summaries of any Confidential Information except as are necessary for the purpose of this Agreement. If Recipient discovers any disclosure or misuse of any Confidential Information, then Recipient shall promptly notify Disclosing Party and take reasonable actions to prevent any further disclosure or misuse of such Confidential Information.
13.4 Notwithstanding any provision of this Agreement to the contrary, Recipient may disclose any Confidential Information to the extent required by applicable law only if, prior to such disclosure, Recipient (i) delivers to Disclosing Party written notice to such effect promptly after receipt by Recipient of a request for disclosure and (ii) takes reasonable actions, and provides reasonable assistance to Disclosing Party, to secure confidential treatment of such Confidential Information by a protective order or otherwise.
13.5 Recipient may make copies of Confidential Information only to the extent necessary for the purpose of this Agreement and only if all confidential or proprietary markings are reproduced on such copies.
13.6 Promptly after the request of Disclosing Party, Recipient shall, at its option, (i) return to Disclosing Party all originals, copies and excerpts of any Confidential Information or (ii) destroy such originals, copies and excerpts if Recipient delivers to Disclosing Party notice to such effect. Without limiting the generality of the foregoing, the Recipient shall (i) delete any data in its possession containing such Confidential Information from the Recipient’s e-mail systems, text message storage or recovery files, and other electronic information retrieval systems, and (b) destroy all physical copies of the Confidential Information. Notwithstanding the foregoing, Recipient’s legal counsel may retain one copy of such Confidential Information for use solely as a record of the disclosure. If the Confidential Information was provided to Recipient on equipment such as computers (including without limitation desktop computers, laptop or notebook computers, tablet computers or other “smart” devices), USB hard drives, network drives, network drives, discs or other equipment containing software, all such equipment shall be returned to the Disclosing Party promptly upon the Disclosing Party’s request.
13.7 Except as otherwise provided in this Agreement, nothing in this Agreement shall be construed to grant to Recipient any right in any Confidential Information.
13.8 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, DISCLOSING PARTY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY CONFIDENTIAL INFORMATION.
13.9 The obligations of Recipient with respect to any Confidential Information shall survive the expiration of the term, or sooner termination, of this Agreement for an indefinite period thereafter.
13.10 Each Recipient acknowledges that the unauthorized use or disclosure of the Confidential Information may cause irreparable harm to the Disclosing Party. Accordingly, each Recipient acknowledges and agrees that each Disclosing Party will have the unrestricted right and privilege to pursue injunction and/or preliminary injunction against any breach or threatened breach of this Section 13, as well as the right to pursue any and all other rights and remedies available at law or in equity for such a breach. This Section 13 shall survive any expiration or termination of this Agreement.
14. TERM AND TERMINATION.
14.1 The initial term of this Agreement shall commence on the Effective Date and expire upon the expiration of one year after the date thereof, unless sooner terminated in accordance with Section 14.2 hereof. Upon the expiration of the initial term, and each successive term, of this Agreement, the term of this Agreement shall automatically be renewed for one additional one-year term, unless sooner terminated in accordance with Section 14.2 hereof. Upon the expiration of the term of this Agreement, the obligations of each of All Party Rentals Factory, Inc and Subcontractor under this Agreement with respect to any Email work order that has been accepted by Subcontractor shall survive such expiration until such obligations have been fully performed.
14.2 This Agreement may be terminated prior to the expiration of its term as follows:
(a) By the mutual agreement of the parties;
(b) By either party upon the delivery to the other party (the "Bankrupt Party") of notice to such effect if (A) the Bankrupt Party has filed, or consented by answer or otherwise to the filing against the Bankrupt Party of, a petition for relief or reorganization or liquidation (in connection with a bankruptcy or insolvency proceeding) or taken advantage of any bankruptcy or insolvency law of any jurisdiction, (B) the Bankrupt Party has made a general assignment for the benefit of its creditors, or consented to the appointment of a custodian, receiver, trustee or other officer with similar powers for the Bankrupt Party or for any material part of the Bankrupt Party's properties, (C) a court or governmental authority of competent jurisdiction has, without the consent of the Bankrupt Party, appointed a custodian, receiver, trustee or other officer with similar powers with respect to the Bankrupt Party, (D) an order for relief has been entered against the Bankrupt Party in any case or proceeding for liquidation or reorganization or otherwise to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation (in connection with a bankruptcy or insolvency proceeding) of the Bankrupt Party or (E) any petition of any such relief has been filed against the Bankrupt Party and such petition has not been dismissed within 90 calendar days after such filing;
(c) By either party upon the delivery to the other party (the "Breaching Party") of notice to such effect if (A) the Breaching Party has breached any of its material obligations under this Agreement and (B) such breach has not been cured within 30 calendar days after the receipt by the Breaching Party of notice to such effect;
(d) By All Party Rentals Factory, Inc upon the delivery to Subcontractor of notice to such effect if Subcontractor has acquired control of, or become controlled by or under common control with, any competitor of All Party Rentals Factory, Inc or any affiliate of All Party Rentals Factory, Inc;
(e) By All Party Rentals Factory, Inc upon the expiration of 30 calendar days after the delivery to Subcontractor of notice to such effect; or
14.3 Upon the termination of this Agreement pursuant to clause (b), (c) or (d) of Section 14.2 hereof, the terminating party may cancel any portion of any Email work order with respect to any Service that has not been performed by Subcontractor. If the terminating party does not exercise such right, then the obligations of each of All Party Rentals Factory, Inc and Subcontractor under this Agreement with respect to any Email work order that has been accepted by Subcontractor shall survive the termination of this Agreement until such obligations have been fully performed.
14.4 Upon the termination of this Agreement pursuant to clause (a) of Section 14.2 hereof, except as otherwise provided in this Agreement or as otherwise agreed upon by the parties, neither party shall have any rights or obligations under this Agreement. Upon the termination of this Agreement pursuant to clause (b) or (c) of Section 14.2 hereof, (i) the terminating party may exercise any or all of the rights and remedies available to it under applicable law, and (ii) except as otherwise provided in this Agreement, neither party shall have any rights or obligations under this Agreement. Upon the termination of this Agreement pursuant to clause (d) or (e) of Section 14.2 hereof, except as otherwise provided in this Agreement, neither party hereto shall have any rights or obligations under this Agreement.
15. DISPUTE RESOLUTION.
15.1 Before either party may bring litigation against the other to enforce any provision of this Agreement or resolve any dispute hereunder, the parties shall be required to engage in non-binding mediation pursuant to the terms of this Section 15.1. The party initiating mediation shall provide written notice to the other party of the initiating party’s decision to mediate. Within fifteen (15) days thereafter, the parties shall select a mediator by mutual agreement. The parties shall endeavor to select a mediator who is a retired judge or an attorney with at least five (5) years of experience in mediating commercial contract disputes. If the parties are unable to agree upon a mediator within said fifteen (15) day period, then the parties shall submit the matter to the JAMS (Judicial Arbitration and Mediation Service) at its Orange, California office for selection of a mediator in accordance with Rule 15 of JAMS’s Comprehensive Arbitration Rules & Procedures dated July 20, 2014, or any subsequently adopted version thereof. The location of the mediation shall be at the above-referenced JAMS’s office, or at another location mutually acceptable to the parties. The costs of mediation shall be shared equally by both parties. The mediator shall provide an independent assessment on the merits of the dispute and recommendations for resolution. All discussions that occur during the mediation and all documents prepared solely for the purpose of the mediation shall be confidential and privileged pursuant to California Evidence Code Sections 1119 and 1152. If the dispute is not resolved by mediation within sixty (60) days following selection of the mediator, then the mediation procedures shall be immediately terminated (unless continued by the mutual consent of the parties) and either or both parties may proceed to litigation to enforce this Agreement or resolve the dispute.
15.2 Subcontractor hereby (i) submits to the personal jurisdiction of the federal and state courts located in the State of California with respect to any legal proceeding arising out of any dispute relating to this Agreement and (ii) stipulates that venue for any such legal proceeding may be in Orange County, California. Notwithstanding the foregoing, either party may initiate and prosecute any legal proceeding relating to this Agreement or seek enforcement of any judgment entered in connection with this Agreement, in any proper court having jurisdiction in the United States or elsewhere.
15.3 The provisions of this Section 15 shall survive the expiration of the term, or sooner termination, of this Agreement for an indefinite period thereafter.
16. AUDIT RIGHTS. Subcontractor shall maintain the books and records that are reasonably necessary to accurately reflect the performance of its obligations under this Agreement and the amounts payable by All Party Rentals Factory, Inc in connection therewith. Subcontractor shall permit All Party Rentals Factory, Inc and its directors, officers, employees and agents to have access during normal business hours to such books and records for the purpose of verifying the performance of such obligations and such amounts, and Subcontractor shall reasonably cooperate with All Party Rentals Factory, Inc in connection therewith.
17. COSTS AND EXPENSES. Except as otherwise provided in this Agreement, each party shall bear any and all costs or expenses incurred by such party in connection with the performance of its obligations under this Agreement.
18. COMPLIANCE WITH LAWS.
18.1 Each party shall comply with all applicable laws and regulations in connection with the performance of its rights and obligations under this Agreement.
18.2 Subcontractor shall procure and maintain all licenses and permits that may be required at any time in connection with its performance of the Services and, upon request, shall deliver to All Party Rentals Factory, Inc copies of such licenses and permits and shall obtain and pay for all inspections and file all notices required in connection therewith.
19. FORCE MAJEURE. Neither party shall be held accountable to perform under this Agreement to the extent that such delay or failure to perform is caused by any of the following (“Force Majeure Conditions”): fire; flood; explosion; war; strike; embargo; government requirement (other than any governmental requirement which Subcontractor should have reasonably known about in the exercise of due diligence); act of God; power blackout; earthquake; volcanic action; public enemy; inability to secure raw materials; governmental action or inaction, including without limitation failure, refusal or delay in issuing permits, approvals and/or authorizations; governmental declarations of local, regional, state-wide or national emergencies, including without limitation governmental declarations which mandate or recommend the full or partial closure of the performing party’s business; restrictive governmental laws, regulations or orders; epidemics; quarantines; or other reasonable causes beyond its normal control, and without fault or negligence of the delayed or non-performing party or its representatives (“Force Majeure Conditions”). Notwithstanding the foregoing conditions, Subcontractor’s liability for loss or damage to All Party Rentals Factory, Inc’ and All Party Rentals Factory, Inc’ customer’s materials in Subcontractor’s control or possession shall not be modified by this provision. The party delayed or unable to perform due to a Force Majeure Condition shall promptly notify the other party, stating the exact nature of the Force Majeure Condition preventing performance under this Agreement and the action being taken to offset the effect of the Force Majeure Condition. If Subcontractor is the delayed or non-performing party, then All Party Rentals Factory, Inc, at its option, may (a) suspend performance under the Agreement until such time as the Force Majeure Condition ceases to exist, (b) seek to obtain performance via other means and accordingly reduce or terminate Subcontractor’s performance requirements under this Agreement, (c) terminate portions of this Agreement for Services not already performed, at no cost to All Party Rentals Factory, Inc when the term of the Force Majeure Condition exceeds 15 calendar days.
20. PUBLICITY. Except as otherwise required by applicable law, neither party shall issue or cause the issuance of any press release or other publication of the existence of this Agreement or the transactions contemplated hereby, without the prior written consent of the other party.
21. NOTICES. Any notices, requests or consents required or permitted under this Agreement shall be in writing and deemed to have been duly given or delivered (a) when personally delivered, (b) when sent by electronic transmission to a party hereto at the e-mail address set forth below for such party (if proof of successful transmission can be reasonably demonstrated), (c) when sent by facsimile transmission to a party hereto at the facsimile number set forth below for such party (if proof of successful transmission can be reasonably demonstrated) or (d) mailed by postage prepaid (return receipt requested), or (e) a reputable overnight courier service (signature service required); in each case addressed to the party hereto to whom such notice, request or consent is to be given or delivered at the following addresses, or at the most recent address specified by notice given to the other party hereto (provided, however, that any notice of an address change shall not be deemed to have been duly given or delivered until actually received):
All Party Rentals Factory, Inc: ALL PARTY RENTALS FACTORY, INC.
451 W Lambert Road Suite 214
Brea, CA 92821
Attention: Felicito Reyes
E-Mail: [email protected]
Subcontractor: Provided on the application submit
22. ASSIGNMENT AND SUBCONTRACTING. Subcontractor shall not assign or subcontract the performance of any of its obligations under this Agreement, in whole or in part, without the prior written consent of All Party Rentals Factory, Inc. All Work performed by a lower tier contractor shall be deemed work performed by Subcontractor. Subcontractor shall bind or cause to be bound by contracts any lower tier contractor at any tier to all terms and conditions of this Agreement. Subcontractor agrees not to hire any lower tier contractor to whose employment All Party Rentals Factory, Inc objects.
23. RELATIONSHIP OF THE PARTIES. Subcontractor hereby represents that it is engaged in an independent business and will perform its obligations under this Agreement as an independent contractor and not as an employee of All Party Rentals Factory, Inc; that the persons performing Services hereunder are not employees of All Party Rentals Factory, Inc; that Subcontractor has and hereby retains, except as set forth herein, the right to exercise full control of and supervision over the performance of Subcontractor's obligations hereunder and full control over the employment, direction, compensation, and discharge of all employees, agents, and subcontractors assisting in the performance of such obligations; that Subcontractor will be solely responsible for all matters relating to payment of such employees, including compliance with workers’ compensation, unemployment and disability insurance, social security, withholding, and all other applicable laws and regulations governing such matters. Subcontractor shall be solely responsible for all injuries, including death, to all persons, and all loss or damage to property which is attributed to Subcontractor's performance under this Agreement or that of any agent, employee, or subcontractor engaged by Subcontractor.
- COMPETITION. During the term of this Agreement, and for a period of thirty-six (36) months from the expiration of the Term and any Renewal Term or any termination or cancellation of this Agreement, Subcontractor shall not solicit work or a contractual relationship for services similar to the Services provided under a Email work order from the corresponding All Party Rentals Factory, Inc customer and the corresponding Project for which the Services are provided.
- BINDING AGREEMENT. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of All Party Rentals Factory, Inc, and shall be binding upon and inure to the benefit of Subcontractor's heirs, legal representatives, successors, and assigns.
- ENTIRE AGREEMENT.
26.1 This Agreement shall constitute the entire agreement between the parties with respect to its subject matter, and any understanding or representation of any kind made prior to or simultaneous with the execution of this Agreement shall be binding upon the parties only to the extent specifically incorporated herein.
26.2 In the event of any conflict between any provision of this Agreement and any exhibit, schedule or other attachment hereto and any provision of any Email work order or any written acknowledgement of a Email work order (“Order Acknowledgement”), (i) the provision of this Agreement shall prevail, and (ii) to the extent possible, such provisions shall be construed to minimize such conflict and the provision of such Email work order or Order Acknowledgement shall have no force or effect whatsoever.
26.3 No terms and conditions of any Subcontractor proposals, acknowledgements or invoices will modify or add to this Agreement unless specifically and separately agreed to by All Party Rentals Factory, Inc in writing.
27. AMENDMENTS. Any changes to this Agreement requested either by Subcontractor or All Party Rentals Factory, Inc may only be effected if mutually agreed upon in writing by duly authorized representatives of the parties hereto. This Agreement shall not be modified or supplemented, or any rights of a party to it waived except by such in writing.
28. WAIVERS. Failure by either party at any time to require performance by the other party or to claim a breach of any provision of this Agreement shall not be construed as affecting any subsequent breach or the right to require performance with respect thereto, or to claim a breach with respect thereto.
29. SEVERABILITY. The provisions of this Agreement are severable, and if any provision is held invalid or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability will affect only such provision or part thereof in such jurisdiction and will not in any manner affect the provision in any other jurisdiction, or any other provision in this Agreement in any other jurisdiction, to the extent legally permissible. An arrangement which reflects the original intent of the parties will be substituted for such invalid or unenforceable provision.
30. ATTORNEY’S FEES. The prevailing party in any action or proceeding between the parties arising out of or related to this Agreement shall be entitled to recover its reasonable attorney's fees and costs incurred in connection therewith.
31. COUNTERPARTS. The parties may execute any number of counterparts to this Agreement, each of which shall be deemed to be an original, and all of which together shall constitute one and the same agreement.
32. GOVERNING LAW. This Agreement shall be governed by and construed In accordance with the laws of the State of California, without giving effect to the principles of conflicts of laws thereof.
By summitting this partner registration form you accept and agree to these terms and conditions. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth in the introductory paragraph hereof.
ALL PARTY RENTALS FACTORY, INC.