Vendor Agreement

BDC Group Inc.

Terms and Conditions

STATEMENTS OF WORK:

This Agreement serves as a master agreement under which multiple Statements of Work may be issued by the parties. Each Statement of Work shall be governed by the terms and conditions of this Agreement. If there is any conflict or inconsistency between the terms of a Statement of Work and this Agreement, the terms of this Agreement shall control.

SCOPE OF WORK:

Vendor shall furnish all labor, material and equipment required to complete the entire scope of work (“Work”) as described in each Statement of Work issued under this Agreement. The Work includes all services to be performed or things to be furnished by Vendor, as the context reasonably requires, including, without limitation, all supervision, labor, materials, supplies, tools, equipment, light, water, fuel, power, heat, transportation, or other facilities necessary for the completion of the Work, in a safe, expeditious, and orderly manner and in accordance with highest construction practices, and to the satisfaction of the Company. Vendor shall provide, in each Statement of Work, a detailed scope of work including pricing and schedule commitments. Both Company’s and Vendor’s authorized representatives shall sign the applicable Statement of Work prior to the commencement of the Work. In connection with the performance of the Work, Vendor shall also satisfy any applicable obligations set forth in any specifications or other contract documents pertaining to the Work (“Contract Documents”). Vendor shall review all Contract Documents and shall request any clarifications to the Contract Documents or the Work prior to performing Work.

PRICE / PAYMENT:

Company agrees to pay Vendor electronically via an ACH direct deposit into an account designated by the Vendor, the total amount identified in the applicable Statement of Work for the performance of the Work subject to adjustments for authorized changes in the Work, if any, as may be directed in writing by Company. Such price includes, and Vendor hereby accepts liability for payment of all applicable federal, state, county, municipal and other taxes relating to the Work except the Company agrees to be solely liable to pay the applicable two percent (2%) tax imposed by the State of South Dakota on any prime contractor for the value of work performed in that State and any similar tax imposed on prime contractors in any other states in which Vendor performs work for Company. If Vendor receives any invoice or other written document related to such liability, the Vendor shall promptly forward such invoice or written document to the Company for payment. Payment by Company shall be made for Work satisfactorily performed by Vendor. All payments to Vendor shall be inclusive of all of Vendor’s expenses and profits, and Company shall have no further obligation for any compensation, benefits, or payment to or on behalf of Vendor or its employees or agents.

TIME; LIQUIDATED DAMAGES FOR DELAY:

Time is of the essence for the performance of the Work. Vendor shall provide Company with scheduling information in a form acceptable to Company and shall conform to Company’s progress schedules, including any schedule changes made by Company. Vendor understands that if the date of substantial completion established by a Statement of Work is not attained due to the acts or omissions of Vendor or its agents, Company will suffer damages which are difficult to determine and accurately specify. Vendor agrees that if the date of substantial completion is not attained, Vendor shall pay to Company liquidated damages in the amount set forth in the applicable Statement of Work as liquidated damages and not as a penalty for each day that substantial completion extends beyond the required date of substantial completion.

LICENSE:

Vendor shall be properly licensed to conduct business in the state in which it proposes to work.

AUDIT RIGHTS:

Vendor shall keep such books and records on a consistent basis and in accordance with generally accepted accounting principles (GAAP). These books and records shall readily disclose the basis for any charges or credits, ordinary or extraordinary, billed, or due to Company under this Agreement and shall be made available upon request for examination, audit and reproduction by Company and its agents during the term of this Agreement and for a period of two (2) years after the receipt by Vendor of final payment under this Agreement. When requested by Company, Vendor shall permit Company personnel, or its duly authorized agent or representative, access during normal working hours to Vendor’s personnel, property, and records necessary to conduct the Company’s audit. Vendor further agrees to include the above right to audit clause in all sub-subcontracts for services and materials furnished under the terms of this Agreement entitling Company to inspect books and records of sub-Vendors to validate Vendor charges.

INDEPENDENT CONTRACTOR:

The relationship between Company and Vendor shall be only that of an “Independent Contractor.” The detailed manner and method of performing the Work are under the sole control of Vendor, Company being interested only in the results obtained. Nothing in this Agreement shall constitute Vendor as an employee, licensee, partner or agent of Company, and Vendor shall not hold itself out as such. Vendor specifically agrees and understands that neither Vendor nor Vendor’s employees shall be entitled to any of the benefits that are available to Company’s employees.

PROTECTION AND USE OF WORK AND PROPERTY:

Vendor shall continuously maintain adequate protection from damage for all its work and shall protect Company property, and the property and persons of others, from injury or loss arising in connection with this Agreement. Vendor shall comply with and shall cause its employees, other subcontract personnel and sub-subcontract employees and personnel to comply with all Company rules and regulations including those related to Safety, Health and Environment. Where applicable, Vendor’s employees and sub-Vendor personnel shall also comply with all rules and regulations imposed by railroads, DOT, DOA, DOIT, OSHA, EPA, DNR and federal, state, or local law.

CHANGES IN WORK:

Company shall have the right to make changes in the Work in writing, and Vendor shall perform the Work as changed, subject to an equitable adjustment in price and/or time for performance if applicable. Vendor shall make no changes in the Work without written direction from the Company, and Vendor shall not be compensated for any change made without such written direction.

CLAIMS:

Vendor shall give written notice to Company of any claim for additional time and/or compensation relating to the Work within ten (10) days after Vendor knew or should have known of the basis for the claim, or Vendor shall be deemed to have waived such claim. Notwithstanding the foregoing, Vendor shall give written notice to Company of any claim relating to the Work not later than thirty (30) days after completion of the Work or such claim shall be barred. Acceptance of final payment shall constitute a waiver of all claims by Vendor against Company relating to the Work.

INSPECTION:

Vendor shall make the Work accessible at all reasonable times for inspection by Company. Vendor shall, at the first opportunity, inspect all material and equipment delivered to the job site by others to be used or incorporated in the Work and give prompt notice of any defect therein.

DELAY:

In the event that Vendor’s Work is delayed for any reason, including suspension by Company or other acts of Company, Vendor’s sole remedy shall be an extension of time equal to the period of delay, provided Vendor has given Company written notice of the commencement of delay within 48 hours of its occurrence (but such notice is not required in the event the delay results from Company’s issuance of written notice of suspension of the Work). Vendor shall not be entitled to any extension for delays attributable to its own acts or omissions or occurrences under its control. In the event that Company, in its sole discretion, should seek compensation from the owner of the property on which the Work is being performed (the “Owner”) or the general contractor with which Company has contracted to perform the project to which the Work relates (“General Contractor”) as a result of any delay, Vendor shall be entitled to an equitable portion of any amount recovered by Company, minus an allocated share of the cost of pursuing said recovery.

RESPONSIBILITY FOR WORK; WARRANTY:

Neither any provision in this Agreement, nor Company acceptance of the Work, nor the final payment shall relieve Vendor of responsibility for work failing to conform to the requirements of this Agreement. Vendor warrants to Company that all materials and equipment furnished by Vendor or others for Vendor shall be those which are specified by the Contract Documents, new, free from defects and of good quality. Vendor warrants its work against all defects in materials and workmanship for a period of one (1) year from the date of final acceptance by Company. Notwithstanding the foregoing, Vendor shall provide any additional warranty coverage required by the Contract Documents.

PAYMENTS WITHHELD:

Company may withhold any or all amounts otherwise due under this Agreement or any Work Order at any time Company shall deem it necessary to protect itself against claims, damages, losses or expenses from any of the following causes defective or not remedied: claims filed, or reasonably anticipated to be filed, against Company or the real estate and/or improvements involved in the Work, the failure by Vendor to promptly pay the labor, material, equipment, services Vendor used in performance of the Work; reasonable doubt that the Work can be completed for the unpaid balance of the contract sum, or within the period called for by any schedule of progress; failure to perform the Work in strict compliance with the Agreement or any Work Order in the manner acceptable to Company, damages to, or claims by and against Company (whether presently determined or reasonably anticipated) in any way arising out of this Agreement or any other Agreement or Work Order between Company and Vendor, or out of any act or omission of Vendor causing damages to Company, and Company may apply any such amount so withheld to the satisfaction of any such claims, damages, losses or expenses, and any such amount so applied shall be deemed payments made under this Agreement and provided, further, that Vendor shall have no property interest in, or right to, such amount so withheld. Without limiting the foregoing rights, this Agreement also may, in Company’s discretion, be subject to a 10% retainage of funds from each invoice transaction. Vendor shall issue an invoice for the retained funds upon completion of the Work, and acceptance by Company. The retainage invoice shall be accompanied by an affidavit from Vendor, with appropriate lien waivers, detailing Vendor payment of all valid invoices and payments to sub-Vendors and suppliers used in the execution of the Work.

In the event Company has any questions regarding an Invoice submitted for payment by the Vendor, Company shall agree to notify Vendor at least five (5) business days before payment is due and specify in writing the Company’s concerns with the Invoice. Both Parties shall commit to meet and attempt to resolve the concern within three (3) business days following the receipt of such notice by the Vendor.

COMPLIANCE WITH LAWS:

Vendor shall observe and abide by all applicable laws, regulations, ordinances and other rules of Federal and State government and political subdivisions thereof, and of any other duly constituted public authority having jurisdiction where the Work is to be performed.

INDEMNITY AND VENDOR’S LIABILITY:

Vendor hereby assumes the entire responsibility and liability for all work, supervision, labor, and materials provided under any work order, or other direction, after the master agreement, whether erected in place, and for all plant, scaffolding, tools, equipment, supplies, and other things provided by Vendor until final acceptance of the entirety of the work by owner. In the event of any loss, damage, or destruction thereof from any cause by the Vendor shall be liable therefore, and shall repair, rebuild, and make good said loss, damage or destruction at Vendors cost, subject only to the extent that any net proceeds are payable under any builder’s risk property insurance that may be maintained by owner or contractor, if any.

Vendor shall be liable to contractor for all costs contractor incurs because of any failure of Vendor, or any of its suppliers or Vendors of any tier, to perform. To the fullest extent permitted by law, the Vendor shall indemnify, defend, and hold harmless the contractor, owner and their respective officers, directors, employees and agents (“Indemnified Parties”) from and against all claims, damages, demands, losses, expenses, fines, causes of action, suites or other liabilities, (including all costs, reasonable attorneys’ fees, consequential damages, and punitive damages), arising out of or resulting from, or alleged to arise out of or arise from, the performance of Vendor’s work subsequent to the execution of this agreement, and any work order, whether such claim, damage, loss or expense is attributable to bodily injury, personal injury, sickness, disease or death, or to injury to or destruction of tangible property, including the loss of use resulting therefrom; but only to the extent attributable to the negligence of the Vendor or any entity for which it is legally responsible or vicariously liable and; regardless whether the claim is presented by an employee of Vendor.

Such indemnity obligation shall not be in derogation or limitation of any other obligation of liability of the Vendor, or the rights of the contractor contained in this agreement or otherwise. This indemnification shall not be limited in any way by any limitation on the or type of damages, compensation acts, disability benefits acts, or other employee befits acts, and includes any loss of injury suffered by an employee of the Vendor. This indemnification shall be in addition to any indemnity liability imposed by the contractor documents and shall survive the completion of the work or the termination of this agreement.

LIMITATION OF LIABILITY:

Company and its affiliated entities shall not be liable, regardless of negligence or fault, for any consequential, incidental, or indirect damages or loss of profits sustained by Vendor. Under no circumstances shall the liability of company and its affiliates in aggregate exceed an amount equal to the contract price for work to be performed under the statement of work from which the claim arises.

ASSIGNABILITY:

Neither this Agreement, nor any claim for payment of sums due or to become due, shall be assignable in whole or in part by Vendor or by operation of law, without the written consent of Company. Any such purported assignment without such consent shall be void.

OBLIGATIONS TO COMPANY:

With respect to the Work, Vendor is bound to Company to the same extent Company is bound to Owner and General Contractor under any Contract Documents between Company and Owner or General Contractor, and Vendor assumes toward Company all obligations and responsibilities which Company assumes toward Owner or General Contractor. Further, Vendor shall bind every sub-Vendor to the provisions of this Agreement insofar as the same shall be applicable to the sub-Vendor’s work. Vendor shall be fully responsible to Company for the acts or omissions of its sub-Vendors, and of persons either directly or indirectly employed by them.

PERMITS, LICENSES, DEPOSITS, AND BONDS:

Unless otherwise specified in writing, Vendor shall secure all permits and licenses necessary to the performance of the Work, pay all fees and make all deposits pertaining thereto, and shall furnish at its expense all bonds required by proper authorities, and shall submit proof thereof to Company.

TAXES:

(I) Except as noted above in Section 3, Vendor shall pay any and all taxes (including income, gross receipts, sales and use, excise, property, and value added taxes) duties, port dues, currency transfer fees, payroll and withholding taxes (including U.S. Social Security, Medicare, and similar taxes in any jurisdiction), charges, fees, or other assessments prescribed by law, and any penalties or interest relating to any of the above, relating to or arising out of the Work (including labor, materials and equipment), this Agreement, Company payments to the Vendor, or either party’s obligations under this Agreement.

Vendor liability for such assessments is absolute and not contingent upon whether such assessments have been assessed, paid, or included in the compensation to be paid to Vendor.

(II) Vendor is determined to be an “Independent Contractor” and in no way will Vendor or its employees be construed to be “employees” of Company. Vendor is responsible for all payroll taxes and other taxes associated with its own employee. Company shall have the right, as required by any governmental entity, to withhold any required taxes from payments made to Vendor and timely remit said taxes to the taxing authority.

(III) If the Work covered under the Agreement is subject to sales or use, value added, or other similar taxes, the tax(es) must be separately stated in invoices. If taxes cannot be separately stated because they are included in the prices, sums, rates, and other charges, invoices must clearly state that all applicable sales, use, value added, and other similar taxes are included in the invoiced amount. In addition, labor and materials must also be separately stated on the invoice. Company shall have no obligation to reimburse Vendor for payment of government assessments or the costs associated with filings except to the extent applicable law requires that such government assessments be included in Vendor’s charges, and then only to the extent Vendor complies with the obligations of this paragraph.

LIENS:

Vendor shall promptly make payment to all persons, firms, Vendors, and corporations furnishing materials for or performing labor in the performance of the Work provided for in this Agreement and any authorized extension or modification thereof. Nothing contained in this Section, however, shall create any obligation on the part of Company to third parties, or rights or claims for any third parties. Vendor agrees to discharge at once all sub-Vendor and third-party liens that may be filed in connection with the Work and to indemnify and hold harmless Company and the Owner. Vendor agrees that Company, to protect itself against any such liens, will have the right to make settlement direct with such lienors and to deduct the amounts of such settlements from such sum or sums as may be due Vendor.

CONFLICT OF INTEREST:

Vendor shall not use any funds received under the Agreement for illegal or otherwise improper purposes. Vendor shall not pay any commissions, fees, or rebates to any employee of Company, nor favor any employee of Company with gifts or entertainment of other than nominal cost or value.

WAIVER:

Company’s right to require strict performance of Vendor obligations shall not be affected in any way by any previous waiver, forbearance, or course of dealing.

ENTIRETY:

This Agreement comprises the entire agreement between Company and Vendor, and there are no agreements, understandings, conditions, warranties, or representations, oral or written, expressed or implied, that are not merged herein or superseded hereby.

AMENDMENT:

Any amendment to this Agreement shall be valid only if made in writing and signed by both parties.

INVOICING INSTRUCTIONS:

Invoices and As-Builts for completed work shall be submitted. Payments to Vendor will be made in accordance with the terms set forth in the Contract and “Payments Withheld” of the Terms and Conditions, and where so indicated in the applicable Statement of Work, will be based on the Schedules and Pricing. The Invoicing period will be bi- weekly unless otherwise directed by Company Representative or this Agreement. Company will pay Vendor the amounts of such invoices within 30 days from when Customer has approved the work and Company has received payment. If Company has any objections to all or any portion of an invoice, the Company will notify Vendor in accordance with Section 14, give reasons for its objection(s) and pay only the portion of the invoice which is not in dispute. Representatives of Vendor and Company shall confer to resolve any disputed invoices.

Unless otherwise noted, send invoices to:

BDC Group, Inc

Attn: Accounts Payable

1525 Ketelsen Drive

Hiawatha, IA 52233

office@bdcgroupinc.com

CONFIDENTIALITY:

(I) Any written information, drawings or data disclosed by Company to Vendor as well as the results of the services performed by Vendor for Company and all information becoming known to Vendor concerning Company’s inventions, discoveries, methods, improvements, business plans, ventures, practices, enterprises, exploration, production, transmission, or operation, or any other information affecting the business operations of Company shall be deemed to be confidential and proprietary information of Company, and shall be protected by Vendor in the same manner and with the same degree of care Vendor treats its own confidential or proprietary information during the term of and after the termination of this Agreement. Vendor shall be fully responsible for all confidential or proprietary information of Company in Vendor’s possession and Vendor shall promptly upon completion of the services, or on demand, return all such information and reproductions therefrom to Company.

(II) Such proprietary or confidential information shall not be disclosed, except to the extent required by law, to any third person or entity without the prior written consent of Company. Except in the case of a disclosure required by law, prior to disclosure to any such third person or entity, such third person or entity must have agreed in writing to treat the information as confidential in the same manner as set forth above.

(III) Confidential or proprietary information shall be treated in the manner specified above until such time as: such information is otherwise available in the public domain; such information shall be established to have been lawfully known by Vendor prior to receipt of such information from Company or becomes known by Vendor through a third party not subject to the non-disclosure requirements of the Agreement, or such information is required to be released by a valid law, regulation or court order, and sufficient notice is given by Vendor to Company of any such requirement or request to permit Company to seek an appropriate protective order or exemption from such requirement or request.

(IV) Vendor shall ensure the maintenance of confidentiality and restriction on use set forth in this Agreement are observed by its employees and sub-Vendors, if any. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such party) may disclose to all persons, without limitation of any kind, the tax treatment and tax structure of the transaction and all materials of any kind (including opinions and other tax analyses) that are provided to the party relating to such tax treatment and tax structure.

NON–SOLICITATION:

Vendor agrees that Company’s business and customer contacts have been established at great expense, and that, by virtue of the relationship between Company and Vendor, Vendor will have extensive exposure to Company’s business and customer contacts that would enable Vendor to compete unfairly with Company. As a result, as an inducement to Company to enter into this Agreement, Vendor agrees that during the period of performance of the Work and for a period of two (2) years after completion of the Work, Vendor will not, without Company’s written consent, directly or indirectly, enter into any contracts with or otherwise perform any work or services for, the Owner or General Contractor, where such contracts, work or services involves work substantially similar to the type of work performed by Vendor for Company under this Agreement or by Company for the Owner or General Contractor on the project to which the Work relates.

NON–INTERFERENCE WITH RELATIONSHIPS:

During the period of performance of the Work and for a period of two (2) years after completion of the Work, Vendor shall not directly or indirectly, induce or solicit (other than by means of general advertising of available positions), any employee of Company to terminate his/her employment relationship with Company. If Vendor violates the terms of this provision, Vendor shall pay to Company liquidated damages in an amount equal to the greater of (a) $75,000 or (b) the first year’s annual salary paid or to be paid by Vendor to the employee. The parties agree that this liquidated damage amount is not a penalty but rather a reasonable approximation of the damages likely to be incurred by Company in the event of a violation of this provision.

INSURANCE REQUIREMENTS:

Prior to commencing the work, Vendor shall procure, and thereafter maintain, at its own expense, until final acceptance of the work, or later, as required by the terms of the agreement or any individual work order, insurance coverage required by the contract documents and this agreement, whichever are greater. At a minimum, and subject to modification in individual work orders, the types of insurance and minimum policy limits specified shall be maintained in a form and from insurers acceptable to contractor as set forth below. All insurers shall have at least an A-(excellent) rating by A.M. Best and be qualified to do business in the state where the project is located.

This insurance shall provide a defense and indemnify the contractor, but only with respect to liability for bodily injury, property damage and personal and advertising injury caused in whole or in part by the Vendor’s acts or omissions or the acts or omissions of those acting on the Vendor’s behalf.

Proof of this insurance shall be provided to the Contractor before the Work commences, as set forth below. To the extent that the Vendor subcontracts with any other entity or individual to perform all or part of the Vendor’s Work, the Vendor shall require the other Sub Vendors to furnish evidence of equivalent insurance coverage in all respect, terms, and conditions as set forth herein, prior to the commencement of work by the Sub Vendor. In no event shall the failure to provide this proof, prior to the commencement of the Work, be deemed a waiver by the Contractor of Vendor’s or the Sub Vendor’s insurance obligations set forth herein. If the insurance company(ies) issuing the policy(ies) required by this exhibit deny coverage to the Contractor, the Vendor or the Sub Vendor will, upon demand by the Contractor, defend and indemnify the Contractor at the Vendor’s or Sub Vendor’s expense.

MINIMUM POLICY LIMITS

COMMERCIAL GENERAL LIABILITY INSURANCE

$1,000,000 Each Occurrence Limit (Bodily Injury and Property Damage)
$2,000,000 General Aggregate per Project
$2,000,000 Products & Completed Operations Aggregate
$1,000,000 Personal and Advertising Injury Limit

BUSINESS OR COMMERCIAL AUTOMOBILE LIABILITY INSURANCE

$1,000,000 Combined single limit per accident

WORKERS’ COMPENSATION AND EMPLOYERS’ LIABILITY INSURANCE

$1,000,000 Each Accident
$1,000,000 Each Employee for Injury by Disease
$1,000,000 Aggregate for Injury by Disease

EXCESS OR UMBRELLA LIABILITY

$5,000,000 Occurrence/Aggregate

If engineering or design activities are part of the Work, Professional Liability insurance with limits of $5,000,000 each occurrence covering acts, errors, omissions committed or alleged to have been committed by Vendor, including coverage for loss of use, Ioss of income and loss of business.

The Contractor and owner, along with respective officers, agents and employees shall be named as additional insureds for Ongoing Operations and Products/Complete Operations on the Vendor’s and any Sub Vendor’s Commercial General Liability Policy, which must be primary and non-contributory with respect to the additional insureds. The Vendor shall continue to carry Completed Operations Liability Insurance for at least three (3) years and after either ninety (90) days following Substantial Completion of the Work or final payment to the Contractor on any individual Project, whichever is later, unless otherwise waived in writing.

It is expressly understood by the parties to this Master Agreement that it is the intent of the Parties that any insurance obtained by the Contractor is deemed excess, non-contributory and not co-primary in relation to the coverage(s) procured by the Vendor, the Sub Vendor or any of their respective consultants, officers, agents, Vendors, employees or anyone directly or indirectly employed by any of them, or by anyone for whose acts any of the aforementioned may be liable by operation of statute, government regulation or applicable case law.

To the fullest extent permitted by applicable state law, a Waiver of Subrogation Clause shall be added to the General Liability, Automobile and Workers’ Compensation policies in favor of Contractor and Owner, and this clause shall apply to the Contractor’s and Owner’s officers, agents, and employees, with respect to all Projects during the policy term.

Prior to commencement of Work on any individual Project, Vendor shall submit a Certificate of Insurance in favor of Contractor and an Additional Insured Endorsement (in a form acceptable to the Contractor) as required hereunder. The Certificate shall provide for thirty (30) days’ notices to Contractor or cancellation or any change in coverage. To the extent that the Vendor has added Contractor as an additional insured on a blanket basis (in a form acceptable to the Contractor), the Vendor shall submit a Certificate of Insurance in favor of Contractor on an annual basis. Copies of insurance policies shall promptly be made available to the Contractor upon request.

DEFAULT; TERMINATION; SUSPENSION:

If Vendor should, in the sole opinion of Company, refuse to or fail to properly prosecute the Work in accordance with this Agreement or disregard instructions of Company, or in the opinion of Company, fail to make adequate progress toward completion of the project or disregard applicable laws, ordinances or the instructions of any authority or otherwise violate any provision of this Agreement, Company may, upon giving Vendor five (5) business days written notice, in its discretion either suspend or terminate the Agreement for cause if Vendor fails to cure default with five (5) business days. In the event of termination under this paragraph, Vendor shall be entitled to payment for Work satisfactorily provided by Vendor through the date of such termination, if payment has been received by Company from owner, but Vendor shall not be entitled to any damages of any kind, including but not limited to lost profits, overhead or any consequential or incidental damages. In the event Company terminates Vendor for cause as set forth in this paragraph, Company shall be entitled to recover from Vendor its attorney’s fees and expenses in any litigation that may result. Either Party shall be entitled to recovery of its costs and expenses, including reasonable attorneys’ fees and expenses, incurred in enforcing its rights under this Agreement.

In addition, Company may, at any time, terminate this Agreement for Company’s convenience and without cause upon written notice to Vendor. In the event of termination without cause, Vendor shall be entitled to payment for Work satisfactorily provided by Vendor through the date of such termination if payment has been received by Company from owner, but Vendor shall not be entitled to any damages of any kind, including but not limited to lost profits, overhead or any consequential or incidental damages.

DISPUTE RESOLUTION; GOVERNING LAW; JURISDICTION:

This Agreement shall be governed by and construed and interpreted in accordance with the internal substantive laws of the state in which the Work is performed, without giving effect to the principles of conflict of laws. Any action, suit or proceeding by either party concerning this Agreement shall be brought in the courts of the state in which the Work is performed, and each of the parties hereby consents to the personal jurisdiction in such courts (and in the appropriate appellate courts) in any such action or proceeding and waives any objection to personal jurisdiction and/or venue. If a dispute arises out of or relates to this Agreement or its breach, the parties shall endeavor to settle the dispute first through direct discussions. Unless otherwise agreed in writing, Vendor shall continue the Work and maintain the schedule of the Work during any dispute resolution proceedings.

SAFETY PRECAUTIONS AND PROGRAMS:

Vendor shall have overall responsibility for safety precautions and programs in the performance of the Work. While this Paragraph establishes the responsibility for safety by Vendor, it does not relieve Vendor of its responsibility for the safety of persons or property in the performance of their work, nor for compliance with the provisions of applicable laws and regulations. Vendor’s safety program shall comply with the requirements of governmental and quasi-governmental authorities having jurisdiction. Vendor shall seek to avoid injury, loss, or damage to persons or property by taking reasonable steps to protect: (a) its employees and other persons at the worksite; (b) materials and equipment stored at onsite or offsite locations for use in the Work; and (c) property located at the site and adjacent to Work areas, whether the property is part of the Work.

Vendor shall report immediately in writing to Company all recordable accidents and injuries occurring at the worksite. When Vendor is required to file an accident report with a public authority, Vendor shall furnish a copy of the report to Company. Damage or loss not insured under property insurance which may arise from the Work to the extent caused by the negligent acts or omissions of Vendor, or anyone for whose acts Vendor may be liable, shall be promptly remedied by Vendor. If Company deems any part of the Work or worksite unsafe, Company, without assuming responsibility for Vendor’s safety program, may require Vendor to stop performance of the Work or take corrective measures satisfactory to Contractor or both. If Vendor does not adopt corrective measures, Company may perform them and deduct their cost from the contract price. Vendor agrees to make no claim for damages, for an increase in the contract price, or for a change in the contract time based on Vendor’s compliance with Company’s reasonable request.

RISK OF LOSS & DAMAGE:

Risk of loss and/or damage to the Work and all materials to be used by Vendor in performing the Work and materials located or stored at the worksite shall be upon Vendor until the date of substantial completion of the Work. For purposes of liability for risk of loss and damage, Vendor shall be deemed to hold and control the materials for purposes of protecting and insuring against loss of or damage to all such materials.

PROGRESS REPORTS & STATUS:

Vendor shall submit such progress reports and shall participate in such project conferences as Company may require from time to time with all such reports to be in such format as Company may reasonably require from time to time.