Master Agreement for Performance of Work
You (“Vendor”) have requested that WH Building Services, LLC (“Company”) consider purchase, retention, or engagement of Vendor’s products or services (Company and Vendor, each a “Party” and collectively the “Parties”).
1) SCOPE OF SERVICES. During the term of this Master Agreement for Performance of Work as may be amended from time to time, this “Agreement”), Vendor shall perform services set forth on the Statement of Work as may be amended from time to time and together with any additional Statements of Work that are executed by the Parties pursuant to this Agreement (collectively, the “Services”). Vendor warrants that Vendor shall provide all Services hereunder in a professional, responsible, and capable manner consistent with the highest industry standards. Vendor acknowledges that no proposal for services submitted to Company shall be binding on Company, and that only an approved Statement of Work shall constitute Company’s request for service as specified in such Statement of Work.
a) Vendor acknowledges and agrees that: (i) in executing and entering into this Agreement, Company is acting as property manager of various properties, which may in certain instances be owned, in whole or in part, directly or indirectly, by affiliates of Company, and (ii) the Services to be performed by Vendor in connection with this Agreement will be performed for Company in its role as property manager, and no owner of properties serviced in connection with this Agreement shall be bound hereby. Any Company affiliates at whose properties or locations have these services rendered are third party beneficiaries of this Agreement and not bound by the terms and conditions of this Agreement.
b) This Agreement serves to provide general terms and conditions as it relates to services and products provided to Company by Vendor. In the event of a contradiction between the terms in the Statement of Work and this Agreement, the latter shall govern.
2) COMPENSATION.
a) Fees and Expenses. In consideration for the Services to be provided by Vendor pursuant to one or more Statements of Work under Section 1 hereof (such Services under one or more Statements of Work, the “Services”), Vendor shall be compensated for such Services in such amounts, and at such times, as are described on the applicable Statement(s) of Work. Company agrees, subject to the provisions of Section 2(b) below and subject to its right to terminate this Agreement pursuant to Section 4 below, to compensate Vendor in accordance with the foregoing, no more than sixty (60) days following receipt of an invoice issued in accordance with the applicable Statement of Work. Reasonable business efforts will be made to process payments within thirty (30) days.
b) Invoicing and Payment. Company shall pay the agreed fees in accordance with the foregoing when all necessary work is completed, inspected, and approved by Company and Vendor invoices Company for same; provided, however, that in the event Company, in good faith, disputes the accuracy of any invoice or any other matters in connection with any of the Services, payment for the portion which is disputed by Company may be withheld until such dispute is resolved.
c) Exceeding Cost Estimate. The parties agree that Vendor’s fee to perform any of the Services shall not exceed the estimate provided in the applicable Statement of Work, without Company’s prior written approval in the form of a signed contract addendum by an authorized party. Approved work on the basis of “Time & Material” shall include a budget, and Vendor shall provide notification and documentation as to if the final cost of their work will exceed the budget, the reason for the cost overrun, and the revised budget. Furthermore, Vendor shall not be entitled to reimbursement for any expenses of Vendor in connection with this Agreement or any of the Services without Company’s prior written approval, in its sole discretion. Vendor must provide copies of receipts and invoices for reimbursement by Company.
3) TERM. The “Term” of this Agreement shall be set forth in the applicable Statement of Work and shall continue in full force and effect until terminated pursuant to Section 4 below.
4) TERMINATION.
a) By Company. Company shall have the exclusive right, at any time and for any reason (with or without cause), to terminate any Statement(s) of Work without penalty, and without prejudice to any other rights or remedies that Company may have, upon delivery of written notice of such termination to Vendor. Upon receipt of such notice, Vendor shall discontinue its performance of the Services covered by such Statement(s) of Work as promptly as is reasonably possible and shall not incur hereunder, or bill Company for, further charges. Unless Vendor is in breach of this Agreement, Company shall remain obligated to compensate Vendor for then-outstanding sums for Services performed in accordance with this Agreement prior to termination.
b) By Vendor. Vendor shall have the right, at any time and for any reason (with or without cause), to terminate any Statement(s) of Work without penalty, and without prejudice to any other rights or remedies that Company may have, upon delivery of written notice of such termination to Vendor at least thirty (30) days prior to the effective date of such termination. Following the effective date of such termination, Vendor shall discontinue its performance of the Services covered by such Statement(s) of Work and shall not incur hereunder, or bill Company for, further charges. Unless Vendor is in breach of this Agreement, Company shall remain obligated to compensate Vendor for then-outstanding sums for Services performed in accordance with this Agreement prior to termination.
c) Upon the termination of any Statement of Work for any reason at any time, Vendor shall immediately return to Company all of the Company’s property including, but not limited to, confidential or proprietary lists (including, but not limited to, customer, supplier, licensor, and client lists), computers, software, computer files, marketing and sales materials, and any other property, record, document, or piece of equipment belonging to the Company. Vendor shall not (a) retain any copies of the Company’s property, including any copies existing in electronic form, which are in Vendor’s possession, custody, or control, or (b) destroy, delete, or alter any Company property, including, but not limited to, any files stored electronically, without the Company’s prior written consent. The obligations contained in this paragraph shall also apply to any property which belongs to a third party, including, but not limited to, (i) any entity which is affiliated or related to Company, or (ii) the Company’s customers, licensors, or suppliers.
d) If Vendor has any outstanding obligations to the Company upon the termination of Vendor’s engagement for any reason, including, without limitation, any Company property that Vendor fails to return to the Company as set forth above, Vendor hereby authorizes the Company to deduct any amounts owed to the Company, including, without limitation, the full replacement cost of any Company property Vendor fails to return, from Vendor’s compensation or any amounts that would otherwise be due to Vendor from Company. Vendor shall remain liable to the Company for any amounts due and owing to the Company which remain outstanding following such offset.
e) Vendor’s post-termination obligations set forth in this Agreement shall survive the cessation of Vendor’s engagement regardless who causes the cessation or the reason for the cessation.
5) CONDUCT. Vendor acknowledges the nature of the Services to be provided under this Agreement and the importance to Company of the reputation, skill, judgment and competency of all individuals and entities associated with Company. While providing the Services, Vendor shall comply with Company’s rules, policies, and procedures governing Vendor’s conduct as established by Company and communicated to Vendor from time to time including, but not limited to, the following: (a) not unlawfully infringing upon the intellectual property rights of third parties; (b) complying with all rules, policies, and procedures concerning the intellectual property rights, Trade Secrets, Confidential Information, and proprietary information of Company, and/or third parties; (c) not using any computer program or software owned by, or proprietary to, the Company without Company’s written consent; (d) not using any third-party computer program or software without the prior written consent of Company; (e) not discriminating, joking, condoning stereotypes, or engaging in other prejudicial or offensive behavior, on the basis of sex, age, religion, race, color, national origin, disability, or any other category protected by law; (f) not engaging in unwelcome sexual advances to any employee, guest, customer, or contractor of the Company, including, without limitation, verbal and physical conduct; (g) complying with all rules and policies of Company prohibiting discrimination and/or harassment of any kind; and (h) promptly notifying Company in writing of any potential or actual conflict of interest between Vendor and the Company. Vendor shall promptly notify the Company of any conduct by Vendor, its employees or agents, which could reasonably be expected to result in any damage to, or any claim of liability against, the Company or its property for any reason.
6) RESTRICTIVE COVENANTS. Vendor acknowledges and agrees that: (a) Vendor shall customarily and regularly solicit Customers and/or Prospective Customers for the Company; and/or (b) Vendor shall customarily and regularly engage in making sales or obtaining orders or contracts for products or services to be provided or performed by others in the Company; and/or (c) during the Term, Vendor shall have access to Confidential Information, Trade Secrets, and information concerning employees, Customers, and Prospective Customers of the Company; (d) the Trade Secrets and Confidential Information, are valuable assets of the Company, its Customers, and Prospective Customers, which may not be used for any purpose other than the Company’s Business; (e) the relationships between the Company and its Customers, Prospective Customers, and Employees are valuable assets of the Company, and may not be used for any purpose other than the Company's Business; (f) the Company shall invest its time and money in the development of Vendor’s skills in the Business; and (g) the restrictions contained in this Agreement, including, but not limited to, the restrictive covenants set forth in this Section, are reasonable and necessary to protect the legitimate business interests of the Company, and they shall not impair or infringe upon Vendor’s right to work or earn a living when Vendor’s engagement with the Company ends. Vendor represents and warrants that Vendor is not: (i) subject to any legal or contractual duty or agreement that would prevent or prohibit Vendor from performing the Services or complying with this Agreement, and (ii) in breach of any legal or contractual duty or agreement, including any agreement concerning trade secrets or confidential information, owned by any other person or entity. Vendor further agrees that during Vendor’s engagement with the Company and in connection with the performance of the Services, Vendor shall not breach any legal or contractual duty or agreement Vendor entered into with any former employer or third party.
a) Trade Secrets and Confidential Information. Vendor shall not: (1) both during and after Vendor’s engagement with the Company, use, disclose, reverse engineer, divulge, sell exchange, furnish, give away, or transfer in any way the Trade Secrets or the Confidential Information for any purpose other than the Company’s Business, except as authorized in writing by the Company; (2) during Vendor’s engagement with the Company, use, disclose, reverse engineer, divulge, sell exchange, furnish, give away, or transfer in any way (a) any confidential information or trade secrets of any former employer or third party, or (b) any works of authorship developed in whole or in part by Vendor during any former engagement, employment or for any other party, unless authorized in writing by the former employer or third party; or (3) upon the termination of Vendor’s engagement with the Company for any reason: (a) retain Trade Secrets or Confidential Information, including any copies existing in any form (including electronic form) which are in Vendor’s possession or control, or (b) destroy, delete, or alter the Trade Secrets or Confidential Information without the Company’s prior written consent. The obligations under this subsection shall: (A) with regard to the Trade Secrets, remain in effect as long as the information constitutes a trade secret under applicable law; and (B) with regard to the Confidential Information, remain in effect for so long as such information constitutes Confidential Information as defined in this Agreement. The confidentiality, property, and proprietary rights protections available in this Agreement are in addition to, and not exclusive of, any and all other rights to which the Company is entitled under federal and state law, including, but not limited to, rights provided under copyright laws, trade secret and confidential information laws, and laws concerning fiduciary duties. Notwithstanding anything to the contrary set forth in this Agreement, pursuant to the Defend Trade Secrets Act of 2016 (18 U.S.C § 1833(b)(1)), no individual shall be held criminally or civilly liable under federal or state law for the disclosure of a trade secret that: (1) is made (x) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (y) solely for the purpose of reporting or investigating a suspected violation of law; or (2) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
b) Non-Solicitation of Customers. During the Restricted Period, Vendor shall not, directly or indirectly, solicit any Customer of the Company for the purpose of selling or providing any products or services competitive with the Business or to provide the Services directly to the Customers. The restrictions set forth in this Section shall apply only to those Customers (i) with whom or which Vendor dealt on behalf of the Company, (ii) whose dealings with the Company were coordinated or supervised by Vendor, (iii) about whom Vendor obtained Confidential Information in the ordinary course of business as a result of Vendor’s engagement with the Company, or (iv) who receive products or services authorized by the Company, the sale or provision of which results or resulted in compensation, commissions, or earnings for Vendor within two (2) years prior to the date Vendor’s engagement with the Company ends.
c) Non-Recruit of Employees. During the Restricted Period, Vendor shall not, directly or indirectly, solicit, recruit, or induce any Employee to (i) terminate his or her employment relationship with the Company, or (ii) work for any other person or entity engaged in the Business. For the avoidance of doubt, the foregoing restriction shall also include prohibiting Vendor from disclosing to any third party the names, background information, or qualifications of any Employee, or otherwise identifying any Employee as a potential candidate for employment.
d) Non-Disparagement. During Vendor’s engagement and following the termination of Vendor’s engagement with the Company for any reason, Vendor shall not make any disparaging or defamatory statements, whether written or oral, regarding the Company, or any of its officers, directors, or investors.
e) Scope. It is the intent of the parties hereto that the covenants set forth in this Agreement be enforced to the maximum degree permitted by applicable law. If the final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the parties hereto agree that the court making the determination of invalidity or unenforceability will have the power to reduce the scope, duration or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement will be enforceable as so modified after the expiration of the time within which the judgment may be appealed.
f) Injunctive Relief. If Vendor breaches any part of this Section 6, Vendor agrees that: (a) the Company would suffer irreparable harm; (b) it would be difficult to determine damages, and monetary damages alone would be an inadequate remedy for the injuries suffered by the Company; and (c) if the Company seeks injunctive relief to enforce this Agreement, Vendor shall waive and shall not: (i) assert any defense that the Company has an adequate remedy at law with respect to the breach, (ii) require that the Company submit proof of the economic value of any Trade Secret or Confidential Information, or (iii) require the Company to post a bond or any other security. Nothing contained in this Agreement shall limit the Company’s right to any other remedies at law or in equity.
7) ASSIGNMENT OF RIGHTS. Vendor acknowledges and agrees that, as between Vendor and the Company, the Company shall own, and Vendor hereby assigns and, upon future creation, automatically assigns to the Company, all right, title and interest, including, without limitation all Intellectual Property Rights, in and to any existing and future Work Product that (whether created prior to, on or after the Effective Date) (a) is or was created within the scope of Vendor’s engagement with the Company, (b) is based on or results from any work performed within the scope of Vendor’s engagement and is related to the Business, (c) has been or will be paid for by the Company, or (d) was created or improved in whole or in part through use of the Company’s time, personnel, resources, data, facilities, or equipment. All Work Product, to the extent permitted by applicable law, shall constitute work made for hire and shall be owned upon its creation exclusively by the Company.
8) LICENSE. To the extent any materials other than Work Product are contained in the materials Vendor delivers to the Company (“Licensed Materials”), Vendor grants to the Company, without further consideration, an irrevocable, nonexclusive, worldwide, royalty-free license to: (i) use and distribute (internally or externally) copies of, and prepare derivative works based upon, the Licensed Materials and derivative works thereof, and (ii) authorize others to do any of the foregoing, but only on behalf of the Company.
9) ELECTRONIC ACCESS. If Vendor is given access, whether on-site or through remote facilities, to any Company computer or electronic data storage system or network in order to perform any services hereunder, Vendor shall limit such access solely to the performance of those services which have been authorized by the Company, and shall not access or use, or attempt to access or use, any other computer system, electronic file, software, or other electronic databases or services of the Company. Vendor shall strictly follow all Company security rules and procedures for use of the Company’s electronic resources. All user identification numbers and passwords disclosed to Vendor and any information obtained by Vendor as a result of Vendor’s access to and use of the Company’s computer and electronic storage systems, as described herein, shall be deemed to be, and shall be treated as, Confidential Information.
10) WARRANTY OF PERFORMANCE. Vendor will provide the Services and deliverables in accordance with no less than the standards of care, diligence and professionalism, and the levels of skill, knowledge and judgment normally practiced by nationally recognized businesses performing services of a similar nature. All such Services and deliverables shall be provided with such warranties as are customarily provided by reputable, nationally recognized businesses performing services of a similar nature. In the event of a further warranties required with the performance of work, as evidenced in a specific Statement of Work or contract, Vendor shall provide such warranty.
11) INDEMNIFICATION.
a) Indemnification by Vendor. Vendor shall indemnify, defend with counsel reasonably acceptable to Company and hold harmless (i) Company, (ii) Company’s affiliates and subsidiaries, (iii) any property owners who own property for which Services are performed, and (iv) the employees, directors, officers, shareholders, members, representatives and agents of all of the foregoing (collectively, the “Company Indemnitees”), from and against all liability, claims, suits, losses, damages, costs and demands arising at any time out of or in connection with (I) Vendor’s performance of Services and any other services under this Agreement, (II) Vendor’s breach of any of the provisions of this Agreement, (III) Vendor’s, or its officers’, employees’, agents’ or representatives’ gross negligence or willful misconduct, (IV) the violation of any applicable law, rule, regulation, order or other requirements of any governmental or quasi-governmental authority relating to the Services or this Agreement, (V) bodily injury or death of any person or damage to real or tangible personal property caused, directly or indirectly, by Vendor or its employees, officers, agents or representatives, (VI) any workers’ compensation claims that are made by the employees or contractors of Vendor, or (VII) otherwise in connection with this Agreement.
b) Indemnification by Company. Company shall indemnify, defend, and hold harmless Vendor and its employees, directors, officers, shareholders, members, representatives, and agents, from and against all liability, claims, suits, losses, damages, costs and demands relating to Company’s performance of its obligations under this Agreement, to the extent caused by the gross negligence or willful misconduct of Company.
c) The terms of this Section 11 shall survive the termination of this Agreement.
12) INSURANCE. Insurance described in this Section 12 shall be maintained during the term of the Agreement and until the end of any applicable periods during which Company, any Company Indemnitees, or any person or entity claiming by or through Company or any Company Indemnitees could suffer losses, damages, costs, liabilities or otherwise bring a claim in connection with the Services, this Agreement, or any applicable insurance policies. Vendor shall maintain insurance in the following amounts:
a) Professional errors and omissions liability insurance, including contractual and prior acts sufficient to cover the Services provided under this Agreement, with a limit of no less than $1,000,000 and a deductible amount not to exceed $25,000, if required by law or commercially standard for the vendor’s industry,
b) Commercial general liability insurance covering bodily injury and property damage, with a limit of no less than $1,000,000 per occurrence and $2,000,000 in the aggregate,
c) Automobile liability insurance covering bodily injury and property damage, with a limit of no less than $1,000,000 per occurrence and $1,000,000 in the aggregate,
d) Worker’s compensation insurance in the amount or amounts required by applicable law, and
e) Naming WH Building Services, LLC as named primary and non-contributory additional insured,
f) A waiver of subrogation applies in favor of the Company.
g) Such other insurance as is reasonable required by Company from time to time.
All such insurance policies shall name as the Company Indemnitees and any other parties reasonably requested by Company from time to time as additional insured or loss payees as their interests may appear. Upon the request of Company, Vendor shall provide certificates of insurance evidencing such insurance coverage. The requirements of this Section 12 shall survive the termination of this Agreement.
13) INDEPENDENT CONTRACTOR. Vendor acknowledges and agrees that during the Term, whether or not any services provided by Vendor hereunder are being performed on the Company’s property and regardless of the nature of the task being performed, Vendor is an independent contractor of the Company. Vendor expressly represents that Vendor is an independent contractor of the Company under the laws of the United States, under applicable state laws, and under the common law, and Vendor acknowledges that Company is relying upon this representation. As an independent contractor, neither Vendor nor any of its employees, agents or representatives is: (a) eligible to participate in any employee benefit program offered by Company to its employees or agents; and (b) covered under Company’s worker’s compensation insurance or state unemployment insurance coverages. Vendor acknowledges and agrees that Vendor is solely responsible, and Company has no responsibility, to pay any and all taxes applicable to the compensation Vendor receives from Company or Vendor pays to its own employees, agents, or representatives, including, but not limited to, FICA payments. Vendor further acknowledges and agrees that Vendor is solely responsible for the payment of its own employees, agents and representatives. Subject to the provisions of this Agreement, Vendor may work on projects for entities other than Company during or after the Term at Vendor’s election. However, Vendor shall use Vendor’s best efforts to ensure the timely and proper completion of the Services. Company and Vendor acknowledge and agree that this Agreement does not constitute or appoint Vendor as an agent of Company for any purpose whatsoever. Nothing herein will be deemed to create an employee-employer or agent-principal relationship between Vendor and the Company. Nothing herein will be deemed to authorize Vendor to act as the Company’s agent or legal representative. Vendor hereby acknowledges that it is not authorized to act as the Company’s agent or legal representative or to otherwise act in the name of, or on behalf of, the Company. Vendor hereby agrees that it will not sign any agreements on behalf of the Company without the prior written authorization of the Company.
14) NOTICES. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given a) when personally delivered, (b) (i) if sent during regular business hours on a Business Day, when transmitted by electronic mail to the address set out below for such recipient if the sender on the same day sends a confirming copy of such notice, demand or other communication by a recognized overnight delivery service (charges prepaid) or (ii) if sent on a non-Business Day or outside of regular business hours on a Business Day, on the Business Day after transmission by electronic mail to the address set out below for such recipient if the sender on the same day of transmission sends a confirming copy of such notice, demand or other communication by a recognized overnight delivery service (charges prepaid), or (c) one (1) day after deposit with a reputable overnight courier service
a) To Company:
WH Building Services, LLC
931 Monroe Drive NE, Suite A 102-355
Atlanta, GA 30308
T 917-443-7499
To Vendor:
At Vendor’s address identified in the Statement of Work.
15) SUCCESSORS & ASSIGNS. This Agreement shall be assignable to, and shall inure to the benefit of, the Company’s successors and assigns, including, without limitation, successors through merger, name change, consolidation, or sale of a majority of the Company’s stock or assets, and shall be binding upon Vendor. Vendor shall not have the right to assign Vendor’s rights or obligations under this Agreement.
16) ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with any Statements of Work and exhibits hereto (if any), constitutes constitute the entire agreement between the parties hereto with respect to the subject matter hereof. All previous agreements or understandings with respect to the subject matter hereof, whether written or oral, are superseded and voided hereby. Vendor acknowledges and agrees that the Company may amend the terms and conditions of this Agreement at any time, in its sole discretion, by providing Vendor with at least thirty (30) days’ prior written notice of such changes and Vendor shall be bound by such changes to the Agreement after the effective date of such changes as set forth in the notice unless it terminates this Agreement and all related Statement(s) of Work in accordance with Section 4 of this agreement prior to the effective date of such Amendment.
17) WAIVER/SEVERABILITY. The Company’s failure to enforce any provision of this Agreement shall not act as a waiver of that or any other provision. The Company’s waiver of any breach of this Agreement shall not act as a waiver of any other breach. The provisions of this Agreement are severable. If any provision is determined to be invalid, illegal, or unenforceable, in whole or in part, then such provision shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision cannot be modified to be enforceable, the provision shall be severed from this Agreement to the extent unenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.
18) GOVERNING LAW. The laws of the State of Georgia, and the Defend Trade Secrets Act of 2016, where applicable, shall govern this Agreement. If Georgia’s conflict of law rules would apply another state’s laws, the Parties agree that Georgia law shall still govern. Vendor agrees that any and all claims arising out of or relating to this Agreement shall be brought in a state or federal court in a competent jurisdiction in Georgia. Vendor consents to the personal jurisdiction of the state and/or federal courts located in Georgia. Vendor waives (a) any objection to jurisdiction or venue, or (b) any defense claiming lack of jurisdiction or venue, in any action brought in such courts.
19) COMPANY TECHNOLOGY. Company utilizes the multiple technology platforms (“Company Technology”) for the expeditious issuance of Statements of Work, invoicing, communication, and Vendor tracking. Vendor shall use any required Company Technology Company mandates during the performance of Services. Company takes no responsibility for errors or omissions caused by Company Technology. It is Vendor’s responsibility to manage its contact and remittance information in Company Technology, as well as to update all required compliance documentation, including, but not limited to, W-9s and other IRS forms and insurance certificates and related documentation. Vendor hereby expressly releases and forever discharges Company and the Company Indemnitees from any and all claims, debts, damages, liabilities, losses, demands, obligations, costs, expenses, disputes, actions, and causes of action which Vendor has, or may have, or ever had, or in the future may have which in any way relates to or arises out Vendor’s use of Company Technology. Vendor agrees to release, indemnify, and hold harmless Company and the Company Indemnitees from any damage, claim, or loss arising out of Vendor’s inaccurate statement or choice of industry code and/or identified location of operation. The foregoing releases and indemnities shall survive the termination of this Agreement.
a) Vendor may also utilize Company Technology to update payment information, including but not limited to remittance addresses, payment type, and banking information (for Electronic Funds Transfer or ACH transactions). Vendor is solely responsible for the maintenance of such remittance information, and agrees to release, indemnify, and hold harmless Company and the Company Indemnitees from any damage, claim, or loss arising out of Vendor’s inaccurate remittance information.
20) LIMITATION OF LIABILITY.
a) Company’s liability to Vendor under this Agreement (including, without limitation, with respect to any indemnification obligations hereunder) shall be limited to the total amount of then-unpaid fees for Services that would be payable by Company to Vendor under any then-outstanding open Statement of Works at the time any liability arises. In no event shall any affiliate of Company, including, without limitation, any owner(s) of real property at which any Services are performed, be liable, or incur any obligations, hereunder or otherwise in connection with the matters described herein. In addition to the foregoing, and for the avoidance of doubt, no members, officers, shareholders, directors, employees, agents, or representatives of Company or of any affiliate of Company (including, without limitation, any owner(s) of real property at which any Services are performed) shall have any personal liability hereunder or in connection with this Agreement or the Services. Vendor shall look solely to Company in connection with this Agreement and not to the assets of any other person or entity.
b) In no event shall either party be liable to the other party for any consequential, special, indirect, or punitive damages (including, but not limited to, lost profits), regardless of whether such liability is based on breach of contract, tort, strict liability, breach of warranties, failure of essential purpose or otherwise. The immediately preceding sentence shall apply, including without limitation, to the indemnity provisions in Section 11 above.
c) This Section 20 shall survive the termination of this Agreement.
21) ATTORNEYS’ FEES. In any court or arbitration proceeding brought by one party hereto against the other to enforce or interpret the terms of this Agreement, or to resolve any dispute concerning any part of the Services, the party prevailing in such proceeding shall be entitled, in addition to such other relief as the court may grant, to an award of its legal costs, including the reasonable fees and disbursements of its attorneys. This Section 21 shall survive the termination of this Agreement.
22) COMPLIANCE WITH LAWS. Vendor agrees to comply with all laws, ordinances, statutes, codes, rules, regulations, orders, interpretations, and decrees of governmental or quasi-governmental authorities in connection with the Services and this Agreement.
23) VOLUNTARY AGREEMENT. Vendor acknowledges the validity of this Agreement, including the attached Exhibit A which is incorporated by reference, and represents that Vendor has the legal capacity to enter into this Agreement. Vendor has carefully read the Agreement, knows and understands the terms and conditions, including its final and binding effect, and signs it voluntarily.
EXHIBIT A: DEFINITIONS
A. “Business” means: (i) those activities, products, and services that are the same as or similar to the activities conducted and products and services offered and/or provided by the Company within two (2) years prior to termination of Contractor’s engagement with the Company; and (ii) property management, hotel management, short term rental management, project management, cleaning, installation, and maintenance of the foregoing.
B. “Confidential Information” means (a) information of the Company, to the extent not considered a Trade Secret under applicable law, that (i) relates to the business of the Company, (ii) possesses an element of value to the Company, (iii) is not generally known outside the Company, and (iv) would damage the Company if disclosed, and (b) information of any third party provided to the Company which the Company is obligated to treat as confidential (such third party to be referred to as the “Third Party”), including, but not limited to, information provided to the Company by its licensors, suppliers, or Customers. Confidential Information includes, but is not limited to, (i) future business plans, (ii) the composition, description, schematic or design of products, future products or equipment of the Company or any Third Party, (iii) communication systems, audio systems, system designs and related documentation, (iv) advertising or marketing plans, (v) information regarding independent contractors, employees, licensors, suppliers, Customers, or any Third Party, including, but not limited to, Customer lists compiled by the Company, and Customer information compiled by the Company, and (vi) information concerning the Company’s or the Third Parties’ financial structure and methods and procedures of operation. Confidential Information shall not include any information that (i) is or becomes generally available to the public other than as a result of an unauthorized disclosure, (ii) has been independently developed and disclosed by others without violating this Agreement or the legal rights of any party, or (iii) otherwise enters the public domain through lawful means.
C. “Customer” means any person or entity to which the Company has sold its products or services.
D. “Employee” means any person who (i) is employed by the Company at the time Contractor’s engagement with the Company ends, or (ii) was employed by the Company during the last year of Contractor’s engagement with the Company (or during Contractor’s engagement if engaged less than a year).
E. “Intellectual Property Rights” are all: (a) patents and associated reissues, divisions, renewals, extensions, provisional, continuations and continuations-in-part; (b) all inventions, whether patentable or not and whether or not reduced to practice; (c) registered and unregistered trademarks, service marks, certification marks, trade dress, logos, trade names, brand names, corporate names, business and product names, internet domain names, internet uniform resource locators, and internet protocol addresses and all goodwill associated with these rights; (d) Trade Secrets, industrial rights, industrial designs; (e) registered and unregistered works of authorship, copyrights, moral rights and publicity rights; (f) all rights to computer software, computer software source code, proprietary databases and mask works and all documentation and developer tools associated with these; (g) proprietary rights that are similar in nature to those enumerated in (a) through (f) anywhere in the world, (h) all enhancements and improvements to and all derivations of any of the rights enumerated in (a) through (g); and (i) all applications, registrations and documentation associated with the rights described in (a) through (g).
F. “Licensed Materials” means any materials that Contractor utilizes to perform the Services, or delivers to the Company, which (i) do not constitute Work Product, (ii) are created by Contractor or of which Contractor is otherwise in lawful possession, and (iii) Contractor may lawfully utilize for the benefit of, or distribute to, the Company.
G. “Prospective Customer” means any person or entity to which the Company has solicited to purchase the Company’s products or services.
H. “Restricted Period” means the time period during Contractor’s engagement with the Company and for one (1) year after Contractor’s engagement with the Company ends for any reason.
I. “Trade Secrets” means information of the Company, and its licensors, suppliers, clients, and customers, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, a list of actual customers, clients, licensors, or suppliers, or a list of potential customers, clients, licensors, or suppliers which is not commonly known by or available to the public and which information (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
J. “Work Product” means: (a) any data, databases, materials, documentation, computer programs, inventions (whether or not patentable), designs, trademarks, trade dress, and/or works of authorship, including but not limited to, discoveries, ideas, concepts, properties, formulas, compositions, methods, programs, procedures, systems, techniques, products, improvements, innovations, writings, pictures, audio, video, images, and artistic works, and any related application or registrations, and each and every original, interim and final version, copy, replica, prototype, or other original work of authorship thereof or in any way related thereto, any and all reproductions, distribution rights, ancillary rights, performances, displays, derivative works, amendments, versions, modifications, copies, or other permutations of the foregoing, regardless of the form or type and the renewals and extensions thereof; (b) any subject matter (including but not limited to any new and useful process, machine, manufacture, composition, or matter, or any new and useful improvement thereof) protected or eligible for protection under patent, copyright, proprietary database, trademark, trade dress, Trade Secret, rights of publicity, confidential information, or other property rights, including all worldwide rights therein; (c) any goodwill, commercial and economic benefits, relationship and contracts arising out of or resulting from Contractor’s engagement; and (d) any Intellectual Property Rights included within and associated with the items described in (a), (b) and (c).