WHEREAS, Nova is engaged in providing various environmental and construction consulting services for its clients, and desires to engage Contractor, from time to time, to perform certain of such services for Nova’s customers in accordance with the terms and conditions hereof; and
WHEREAS, Contractor is engaged in providing various services related to Nova’s services and desires to accept such engagements from Nova in accordance with the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement and other valuable consideration, the receipt and adequacy of which are hereby acknowledged, Nova and Contractor agree as follows:
1. Services. From time to time during the term of this Agreement, Nova shall issue to Contractor work orders (each a “Work Order” and collectively the “Work Orders”) in substantially the form attached hereto as Exhibit A indicating a desire to engage Contractor to perform certain services (the “Services”) for Nova’s customers (each a “Customer”) on Nova’s behalf as specified in the applicable Work Order. Upon acceptance by the Contractor, Contractor shall perform, in compliance with the terms and conditions of this Agreement and the applicable Work Order, the Services as outlined in such Work Order within the time frame specified in such Work Order. This Agreement does not require either Nova or Contractor to issue, accept or execute any particular Work Order; however, if fully executed, a Work Order shall be governed by this Agreement, whether or not the Work Order specifically refers to this Agreement. It is understood Nova is not obligated to provide Contractor with any minimum amount of work and Contractor is not obligated to accept any assignment from Nova. Contractor shall determine and control hours of work and the means, methods and manner of performing the Services.
2. Payments. In consideration for satisfactory completion of the Services, Nova agrees to pay to Contractor the contract price specified in the applicable Work Order (the “Contract Price”) under the terms and conditions set forth in such Work Order. Contractor agrees that it shall be solely responsible for all costs, expenses, overhead and fees incurred by Contractor in connection with performance of the Services.
3. Status of the Parties.
a. Independent Contractor. Contractor is and will perform the Services under this Agreement as an independent contractor and as such shall have and maintain complete control over and be responsible for all of its operations and personnel in connection with performing the Services. Neither Contractor nor anyone employed by it shall be, represent, act, purport to act or be deemed to be the agent, representative or employee of Nova. This Agreement shall not be deemed to create any form of business organization between Nova and Contractor, nor will it be deemed to give Contractor any type of property interest in any site (each, a “Site”) on which the Services will be performed, nor is either party granted any right or authority to assume or create any obligation or responsibility on behalf of the other party, nor shall either party be in any way liable for any debts or obligations of the other party.
b. Taxes and Charges. Contractor shall be responsible for the payment of all taxes, fees, contributions or other charges in any way applicable to Contractor or to the performance of the Services. Contractor shall have no claim against Nova for the payment of wages or other compensation to Contractor, its employees, contractors and associates, for vacation time-off, sick leave, retirement benefits, social security, workers’ compensation, health or disability benefits, unemployment insurance benefits, or employment benefits of any kind.
4. Representations and Warranties of Contractor. Contractor represents and warrants that the following are true and correct as of the date of this Agreement and as of the dates during which the Services will be performed:
a. Contractor is a professional firm and is knowledgeable and experienced in providing the type of services as contemplated in the Services. The Services shall be performed in the manner consistent with the standards of care, diligence and skill ordinarily exercised by other professional contractors under similar circumstances in accordance with customarily accepted professional practices and procedures. Contractor represents and warrants that it is and will be familiar with the laws, rules, regulations and ordinances affecting each Site upon which the Services will be performed. Contractor is duly organized, validly existing and in good standing under the laws and regulations of the state of its incorporation or formation, as applicable, and as appropriate with respect to each jurisdiction in which it provides Services to Nova.
b. All Personnel of Contractor will and shall be required to abide by the terms and provisions of this Agreement, including, without limitation, the requirements of confidentiality as provided in paragraph 9 below. For purposes of this Agreement, “Personnel” means all officers, affiliates, partners, employees, agents, independent contractors and subcontractors of Contractor.
c. All Services supplied by Contractor in the performance of this Agreement shall be supplied by Personnel who are appropriately licensed or certified as required by law, and who are competent and qualified in their respective trades or professions. All Personnel of and used by Contractor in the performance of the Services shall be the Personnel of Contractor and not of Nova. Contractor may not subcontract for the services of others without obtaining Nova’s consent.
d. Contractor shall perform the Services in compliance with all applicable laws, regulations, rules, ordinances and orders of any governmental authority.
e. Contractor understands and acknowledges that its work product will form the basis for information, recommendations and Services Nova provides to Client. Contractor hereby expressly consents to Nova rebranding Contractor’s work for submittal to Client. Upon completion of Services, all files, documents, reports and other work product (“work product”) prepared by Contractor shall be considered Nova property. Contractor agrees to assign any rights in Contractor’s work product, including copyright, to Nova.
a. Termination by Nova. Nova may terminate this Agreement with or without cause effective upon forty-eight (48) hours written notice to Contractor. Contractor shall be (i) paid for all Services performed as of the date of termination and (ii) compensated by Nova for all reasonable, necessary and non-cancelable termination costs actually incurred by Contractor (not to exceed in any case the total Contract Price with respect to any outstanding Work Orders).
b. Term of Agreement; Automatic Renewal. Unless earlier terminated pursuant to the provisions hereof, the term of this Agreement shall be one year from the date of execution, provided that this Agreement shall be deemed to be renewed for successive one year periods unless either Nova or Contractor gives written notice to the other of a desire to terminate this Agreement no later than 30 days prior to the end of the applicable one year term.
c. Delivery of Materials. Upon termination of this Agreement for any reason, Contractor shall immediately deliver to Nova all “Materials” as defined in Paragraph 9 below, held or used by Contractor in connection with the Services. If, at the time of termination, further sums are due Contractor, Contractor shall not be entitled to the sums until all Materials required to be delivered to Nova are delivered.
d. Services. Upon receipt of notice of termination for any reason, Contractor shall promptly cease all Services, except as Nova may, in its discretion, reasonably request Contractor to perform. Any such additional Services requested by Nova shall be performed in compliance with the standard of care as provided in Paragraph 4.a. above and any other terms and provisions of this Agreement.
6. Indemnification and Insurance.
a. Indemnification. Contractor agrees to indemnify, hold harmless, protect and defend Nova, its Customers and any affiliated or related entities, and their respective employees, officers, directors, shareholders, agents and representatives, from and against any and all claims, losses, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, that occurred or are alleged to have occurred in connection with the Services or are alleged to have occurred in whole or in part as a result of or due to the negligence or fault of Contractor, its agents, employees or representatives, regardless of whether or not such claim, loss, liability, damage, costs or expense is caused in part by a party indemnified hereunder.
b. Insurance. Except where specifically waived by Nova in writing, Contractor shall, at its own expense, secure and maintain throughout the term of the Agreement and for a period of one year after termination hereof, the following insurance:
(i) Commercial General Liability Insurance on an occurrence basis with a limit of liability not less than $1,000,000 per occurrence.
(ii) Professional Liability Insurance with a limit of liability not less than $1,000,000 covering professional services performed in connection with Services.
(iii) Contractor’s Pollution Liability with a limit of not less than $1,000,000, if Professional Associate is engaged in Subsurface Investigations, Environmental Abatement or Remediation, or if the Professional Associates work requires the use, treatment, storage, removal or transportation of hazardous materials or petroleum products at, to or from the site.
(iv) Automobile Liability Insurance on all owned, non-owned, hired and leased automotive equipment used in performance of Services in amounts not less than $1,000,000 combined Single Limit for bodily injury and property damage
(v) Workers Compensations insurance in compliance with the laws of the state where Services are being completed including Employers Liability Insurance in the amount not less than $1,000,000.
(vi) all other insurance of the type and on the terms and conditions required by Nova’s underlying contracts with its Customers or as otherwise stated in the Work Order.
(vii) Additional insured. Contractor shall name Nova as an additional insured on Contractor’s insurance.
7. Assignment. Nova has the right to transfer or assign this Agreement to any of its subsidiaries, affiliates, successors or lenders without the consent of Contractor; provided, however, that Contractor shall be provided with notice of any such transfer or assignment. Contractor shall not have the right to transfer or assign this Agreement without Nova’s prior written consent.
8. Subcontractors. Contractor will not hire any subcontractors to perform any part of the Services without the advance written approval of Nova. Contractor agrees to obtain the agreement of any such approved subcontractor to be bound by the terms and conditions of this Agreement, including the insurance requirements referenced in Paragraph 6.b and the confidentiality provisions contained in Paragraph 9.
9. Confidentiality and Reports. In order to protect confidentiality, the Services shall be performed, and all communications and “Materials” (as defined below), shall be handled in accordance with the following:
a. Contractor shall not in any manner reveal, disclose or publish the fact that Nova has contracted for the Services of Contractor to any other party without Nova’s prior written consent, except to the extent that such disclosure is required by any local, state or federal law.
b. All books, records, photographs, slides, materials, data, laboratory reports, calculations, drafts, estimates, documents, communications, notes, proposals, reports, scopes of work or related responses, whether in written or in any other form (collectively “Materials”) which are generated by Contractor as a direct result of this Agreement for Nova or a Customer or furnished to Contractor by Nova or a Customer shall be considered as confidential. All materials shall be marked “Privileged and Confidential” by Contractor unless Nova specifically directs otherwise. In order to perform the Services requested, Contractor may require access to Nova’s computer systems, software programs, or other data, including but not limited to Quire, report templates, and other information; Contractor agrees that this is proprietary to Nova or is private or confidential in nature and may not be utilized or retained by Contractor except as expressly authorized by Nova in writing.
c. All Materials shall be kept in controlled access files marked “Privileged and Confidential”. No Materials shall be delivered to any persons unless specifically directed by Nova or as a result of Contractor’s good faith response to a lawful order of a court or governmental authority with competent jurisdiction, provided that Contractor has first given Nova ten (10) days written notice of its intention to make a disclosure in compliance with any such order.
d. Contractor agrees that only those Personnel directly engaged in the Services for Nova shall have access to the Materials.
e. All Materials prepared or developed by or for Contractor exclusively for Nova pursuant to this Agreement shall become the property of Nova upon termination of this Agreement. Upon the termination of this Agreement or at such earlier time as Nova requests, Contractor agrees to deliver to Nova all Materials or otherwise dispose of the Materials if Nova so directs. Contractor may retain a record copy of all Materials (including portions of samples) in a controlled access file accessible only to those Personnel of Contractor directly engaged in the Services, and will not display, reveal or disclose the contents of the Materials so retained to others without Customer’s and Nova’s prior written authorization. Materials may not be used by Contractor for any project, site or purpose other than that expressly set forth herein unless expressly so agreed to by Nova in writing. Nova may decide from time to time to waive the confidential nature of certain of the Materials by disseminating them to third parties in Nova’s sole discretion.
f. Contractor agrees to obtain the same assurance as to confidentiality and non-disclosure as required hereunder from all persons or entities which may be called upon to assist Contractor in providing the Services provided under this Agreement, including, but not limited to, approved subcontractors working under Contractor’s direction.
10. Regulatory Agencies. Contractor will not meet or confer with any member of any federal, state or local regulatory agency concerning the Services or disclose any information about any Site without first obtaining the written consent of Nova and the applicable Customer; however, nothing herein contained shall prohibit, limit or in any manner result in liability for Contractor as a result of Contractor’s good faith response to a lawful order of a court or governmental authority with competent jurisdiction, provided that Contractor has first given Nova ten (10) days prior written notice of its intention to make a disclosure in compliance with any such order. In addition, Contractor will not discuss any matters arising out of this Agreement with members of the press or public and will not issue any press release without the prior written consent of Nova and the applicable Customer.
11. Miscellaneous Provisions.
a. Entire Agreement. This Agreement, together with all documents incorporated or referenced herein, contains the entire agreement regarding the subject matter of this Agreement and supercedes all prior understandings and agreements, whether oral or in writing, regarding the subject matter of this Agreement. Any purported modification of this Agreement or of Contractor’s professional responsibility through exculpatory language contained in Contractor’s report shall not be construed to modify this Agreement or Contractor’s liability hereunder, regardless of whether Nova objects to the inclusion of the language.
b. Notice. All notices and demands which either party is required or desires to give to the other shall be given in writing by personal delivery or by express courier services or certified mail, return receipt requested, to the address below for the respective party. However, if any party gives notice of a change of name or address, notices to that party shall thereafter be given as demand in that notice. All notices and demands given by personal delivery or by express courier service shall be effective upon receipt by the party to whom notice or a demand is being given. All notices given by mail shall be effective on the third business day after mailing. The parties’ addresses are as follows:
NOVA CONTRACTOR CONTRACTOR
NOVA Group, GBC _____________________
5320 W. 23rd Street _____________________
Suite 270 _____________________
St. Louis Park, MN 55424 _____________________
c. Attorneys’ Fees. In the event of any dispute involving this Agreement or any action required to enforce any provisions of this Agreement or any remedy available upon default of this Agreement, or to obtain a declaration of rights under this Agreement, the prevailing party shall be entitled to recover from the other party attorneys’ fees and costs as may be reasonably incurred, including the costs of reasonable investigation, preparation and professional or expert consultation incurred by reason of the dispute.
d. Choice of Law and Exclusive Venue. This Agreement shall be governed by the laws of the State of Minnesota and any litigation to enforce any provision of this Agreement, to enforce any remedy available upon default under this Agreement or to obtain a declaration of rights under this Agreement shall be brought and litigated only in Minnesota State Court located in Carver County, Minnesota. The Parties expressly agree to this exclusive venue.
e. Construction and Drafting. Contractor had the opportunity to review this Agreement and request any changes or clarifications; therefore, the rule of construction providing for contracts to be construed strictly against the drafter shall not apply to Nova.
f. Severability. If any term, covenant, condition or provision of this Agreement or its application to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the parties shall renegotiate the unenforceable or invalid terms so as to effect the intent of this Agreement, and the remainder of the provisions of this Agreement, or its application to any person or circumstance, shall remain in full force and effect.
g. Waiver of Covenants, Conditions or Remedies. Waiver by one party of the performance of any covenant or condition under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver of any other covenant or condition under this Agreement.
h. Exhibits. All exhibits and other documents referred to in this Agreement are deemed incorporated in this Agreement, whether or not actually attached.
i. Amendment. This Agreement may not be amended without the written agreement of Nova and Contractor. All amendments, changes, revisions and discharges of this Agreement shall be binding upon the parties despite a lack of legal consideration, as long as they shall be in writing and executed by the parties.
j. Further Acts. Each party agrees to perform any further acts and to execute, acknowledge and deliver any documents which may be reasonably necessary to carry out the provisions of this Agreement.
k. Survival. The provisions of paragraphs 6, 9, 10 and 11 of this Agreement shall survive the expiration or termination of this Agreement.
l. Non-Discrimination. Contractor agrees and warrants that in the performance of this Agreement, Contractor will not discriminate or permit discrimination against any person or group of persons on the grounds of race, color, religious creed, age, marital status, national origin, ancestry, sex, sexual orientation, mental retardation or physical disability, including, but not limited to, blindness, unless it is shown by Contractor that such disability prevents performance of the work involved, in any manner prohibited by the laws of the United States or of the state in which the Services are performed.
m. Electronic Signature and Counterparts. The parties agree that this Agreement may be signed electronically. The parties intend to use an electronic signature as the legally binding equivalent of a handwritten signature. The parties consent to submit and accept documents electronically. The parties consent to enter into agreements electronically. The parties may sign electronically by any words, electronic sound, symbol or process attached to or logically associated with the additional terms and indicating acceptance. This provision shall be construed in accordance with the “e-signature” laws of Minnesota. This Agreement may be signed in counterparts and each counterpart shall be deemed an original; all counterparts together shall constitute a single agreement.
Contractor agrees that use of the SiteLink Application is the Contractor’s electronic signature to this Agreement