Terms and Conditions

 MASTER CONTRACTOR AGREEMENT

GENERAL TERMS AND INSTRUCTIONS

This Master Contractor Agreement (“Agreement”) between Advanced Power Technologies (“APT”) and the contractor described on the signature page (“Contractor”) is effective the date this Agreement is accepted by APT (the “Effective Date”).

 

  1. AGREEMENT PERIOD: The term of this Agreement shall be from the Effective Date until the last day of the current calendar year unless otherwise stated in this Agreement. This Agreement shall automatically renew for one (1) year periods thereafter unless terminated earlier by either party in writing sixty (60) days prior to the effective termination date. Moreover, this Agreement shall govern all work performed by Contractor for APT during the 1 year time period immediately preceding the effective date.
  2. WORK TO BE PERFORMED: The Contractor’s Scope of Work shall include all services specified in this Agreement and any Work Order provided by APT to the Contractor from time to time. Any Work Order provided by APT to the Contractor in conjunction with this Agreement is incorporated by reference into this Agreement and may be updated or revised by APT from time to time at APT’s sole discretion. By accepting a Work Order, Contractor agrees to perform the work specified in the Work Order in compliance with the terms and conditions in this Agreement and posted on APT’s website. A Work Order shall include a not-to-exceed (“NTE”) or a fixed-quoted amount. Unless agreed upon in writing, APT is not responsible for payment of any amounts incurred by Contractor or Services performed by Contractor in excess of the NTE or fixed-quoted amount. Contractor agrees that it is solely responsible for complying with the NTE or fixed-quoted amount, and cannot seek payment of amounts in excess of the NTE or fixed-quoted amount from APT or the Owner, and cannot recover any materials or product from a project or location.
  3. SERVICE RESPONSE: APT shall issue a Work Order for each assignment to Contractor. Contractor shall respond to service calls placed by APT within the agreed ETA (estimated time of arrival) mutually established and in accordance with the Service Call Instructions attached. If a situation arises where Contractor cannot respond with the agreed upon time, Contractor must contact APT immediately. Only one man and one vehicle should be dispatched per Work Order. Contractor must call APT and receive written approval prior to dispatching additional personnel or vehicles for service. EMERGENCY SERVICE CALLS: Emergency service call response time will be predetermined by APT and agreed by Contractor. If Contractor cannot respond within the agreed upon time, Contractor must contact APT immediately.
  4. TRUCK STOCK: Contractor is required to review all Work Orders prior to dispatching truck to ensure that all of the parts required for each service call are available on the service truck. A second trip travel charge will not be reimbursed for parts which are considered to be typical stock for the service provided. In the event a second trip becomes necessary, Contractor must obtain written approval from APT prior to dispatching. A typical stock list is attached hereto that includes, but is not limited to, items considered to be typical stock. The typical stock list is meant solely to serve as an example to the Contractor, and is by no means comprehensive.
  5. RATES: Contractor shall have the option to purchase parts from Creative Lighting, LLC, APT’s sister distribution company, or from a wholesale distributor. For any part purchased by Contractor, Contractor shall not charge APT a markup in excess of twenty (20%) percent of the cost of the amount paid by Contractor. If the Contractor opts to purchase parts from Creative Lighting, LLC, the attached Material Pricing List sets forth an example of the rates for certain parts from Creative Lighting, LLC. If the Contractor opts to purchase parts from a wholesale distributor, the Contractor must seek competitive rates for parts. Any parts supplied by the Contractor shall be subject to APT’s right to audit/replace as set forth in Paragraph 6  of this Agreement. Rates for labor shall be as set forth on the Contractor Survey Form also attached. APT reserves the right to change the rates for labor or material upon thirty (30) days prior written notice to Contractor. Any future rate changes requested by Contractor must be submitted to APT sixty (60) days prior to their effective date and are subject to the written approval of APT. Each Work Order shall have a dollar limit or NTE or fixed-quoted amount, including tax. Contractor is required to notify APT to obtain prior written approval if the charge for service is going to exceed the dollar limit or NTE or fixed-quoted amount. No additional payment will be made unless written approval is obtained, prior to service being rendered.
  6. RIGHT TO AUDIT/REPLACE: Contractor shall, at all times during the term of this Agreement and for a period of five years thereafter, maintain records of all work performed under the Agreement. APT shall have the right, at any time and at its sole discretion, to audit, inspect, and to receive copies of any invoices or other documents submitted by the Contractor to APT or relating to work performed by the Contractor under the Agreement throughout the duration of the relationship between APT and Contractor. If any audit identifies overpricing or overcharges of any nature by the Contractor, or fraud, misrepresentation, or non-performance by the Contractor, then, in addition to any other remedies provided under this Agreement, APT shall be entitled to recover from the Contractor reimbursement for all costs and expenses associated with the audit. Notwithstanding, APT reserves the right, in its sole discretion and at the Contractor’s expense, to replace any Contractor-supplied part if APT determines that the Contractor overcharged for any part and the Contractor and APT cannot reach an agreement on a reduced price for the part.
  7. SPECIAL INSTRUCTIONS: Contractor must read all special instructions on each Work Order for additional customer requirements. Any such special instructions are incorporated in this Agreement and must be strictly adhered to or complied with.
  8. WORK ORDER CONDITIONS: Issuance of Work Order for work shall constitute a binding agreement between APT and Contractor and shall remain in force until completion or other disposition is made. No work associated with this Agreement is to be further subcontracted by Contractor, except that portion which Contractor is not equipped or licensed to perform. Such assignment shall not relieve Contractor of its obligation herein to the extent any subcontracting is required. Moreover, Contractor must notify APT, provide APT with a copy of the Subcontractors Insurance Certificate for the same coverage as required by the Contractor herein, and obtain permission from APT in writing before any subcontracting will be permitted.
  9. WARRANTY:   Contractor warrants that all work performed shall be performed in professional, skillful, and workmanlike manner and will be free from defects in workmanship. Contractor shall repair and/or replace, at Contractor’s expense, any defects in materials or workmanship which appear within a period of one (1) year from the date the work is completed and shall remedy any damage resulting therefrom.
  10. MATERIALS RESPONSIBILITY: Any materials shipped to Contractor in conjunction with a Work Order for work will remain the property of APT. Upon receipt of materials, Contractor shall assume full responsibility of handling and safekeeping until the work is completed and accepted by an authorized representative of the customer or other disposition as directed by APT. Contractor shall accept materials shipped to it, and shall inspect them for damage and shortage in shipment and shall provide APT with a signed freight bill denoting such damage or shortage within twenty-four (24) hours of receipt. Shipping damages, while in transit, are the responsibility of the common carrier. The manufacturer cannot assume responsibility for the damage of the product either in the original shipment or during the exchange of the whole or part. In accordance with I.C.C. Regulations, the Contractor must inspect all products immediately upon receipt for correct count, damage or defect. Visible damage or difference in count should be noted by the Contractor on the delivery receipt before accepting delivery. Concealed damage must be reported to the carrier within fifteen (15) days after receipt of shipment and a concealed damage report secured. The liability of the manufacturer for shipping damage ceases upon acceptance by the carrier of the shipment in good order at their dock. If damage has occurred it is the responsibility of the Contractor to supply APT with photos of the damage. The photos must CLEARLY SHOW the damage. Do not destroy or remove cartons and/or crates until inspection has been completed. Your claim can be filed with the carrier and costs recovered. All damage must be repaired or corrected before the product leaves Contractor’s premise to be installed.
  11. PERFORMANCE AND QUALITY: Contractor shall complete the work in accordance with the time schedule specifically established on each Work Order. Contractor shall continuously perform all work under this Agreement, and upon completion of this work, shall leave the premises clean and free from rubbish, tools, equipment and other obstructions. Contractor shall maintain minimum interference with business activity at the location(s). The work performed by Contractor will be subject to the inspection and approval of APT or its designee, whose decision, based upon good construction practice and procedure in the area, on all questions arising out of the performance of the work by Contractor, will be final. Any such inspection and approval by APT will not relieve Contractor of its obligations under this Agreement. APT may refuse any portion of Contractor’s work because of unsatisfactory quality of materials or workmanship or any unauthorized deviations from specifications. Contractor agrees to pay all costs involved in replacing and correcting such work. In addition, APT reserves the right to cancel this Agreement or any portion thereof at its election for Contractor’s negligence, slow progress, use of unsatisfactory materials or workmanship, or evidence of fraudulent representation, in each case, in the sole discretion of APT. Contractor further agrees to relinquish any materials shipped to him, if default is declared.
  12. DEVIATION AND AMENDMENT: Contractor shall not deviate from specifications required herein or any referenced documents. Specified procedures must be followed in every respect unless prohibited by law, customer decree or physical impossibility. The Contractor acknowledges that it has examined the site of proposed work and is reasonably aware of all surface and subsurface conditions surrounding the same. As applicable, Contractor has examined the plans and drawings from and is acquainted with the requirements of each. The Contractor shall not be entitled to any claims of extras unless approved by APT in writing. Additional charges shall not be claimed by the Contractor due to weather conditions or job scheduling. For subsequent alterations in procedure, regardless if change is requested by the agent or other customer representative, APT must be notified and written approval secured by the Contractor from APT. Contractor further agrees and understands that no payment whatsoever will be made for any changes exceeding the agreed amount unless charge is necessary and as a result of completely unforeseeable circumstances or conditions and Contractor secures written approval from APT prior to proceeding.
  13. COMPLIANCE WITH LAWS: Contractor shall be responsible for coordination and clearance with all local parties concerned and will be responsible for proper location of any work in relation to existing public service power, underground cable and sewer, and water lines. Contractor shall obtain required permits for this work, but will not pursue variance proceedings, unless it is necessary and is specifically directed by APT. The Contractor shall comply with all applicable Federal, State and Local laws and regulations, and otherwise engage in or comply with other safety requirements that may be required to operate in the safest manner possible.

          APT and Customer acknowledge that applicable law may require special means of disposal of fluorescent lighting tubes and hazardous substances. The terms “hazardous waste”, “hazardous      substance”, “disposal”, “release”, and “threatened release”, as used in this Agreement, shall have the same meaning as set forth in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. (“CERCLA”), the Superfund Amendments and Reauthorization Act of 1986, Pub.L. No. 99?499 (“SARA”), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 49 U.S.C. Section 6901, et seq. or other applicable state or Federal laws, rules or regulations adopted pursuant to any of the foregoing, and as may be amended from time to time.

 

Contractor warrants that it has agreed with APT to provide for the lawful disposal of all such hazardous substances. Contractor will use all commercially reasonable efforts to secure and deliver a Certificate of proper disposal.

 

Contractor shall comply in all respects with all environmental protections, federal, state and local laws, statutes, regulations and ordinances; not cause or permit to exist, as a result of an intentional or unintentional action or omission on its part or on the part of any third party, on any environmental activity where damage may result to the environment, unless such environmental activity is pursuant to the conditions of a permit issued by the appropriate federal, state or locate governmental authorities.

 

  1. O.T. DRUG/ALCOHOL TESTING (F.M.C.S.R. par 382 of Title 49 C.F.R.): Contractor agrees to assure that employees (including full-time, part-time, casual, intermittent, or occasional C.D.L. drivers), leased drivers, and independent, owner operator contractors who are performing “safety-sensitive functions” assumes sole and complete responsibility for ensuring that the employee and/or driver is in complete compliance with applicable D.O.T. Drug/Alcohol testing policies and regulations. The Contractor agrees to fully protect and indemnify APT from any penalties, liabilities, and legal fees associated with non-compliance with D.O.T. Drug/Alcohol Abuse Policy and Federal, State, and Local laws and regulations.

 

  1. INSURANCE AND INDEMNITY:

IDEMNIFICATION:

  1. TO THE FULLEST EXTENT PERMITTED BY LAW, THE CONTRACTOR AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS APT ALONG WITH ANY OTHER ENTITY FOR WHOM INDEMNIFICATION BY THE COMPANY IS REQUIRED (THE “INDEMNITEES”), AGAINST ANY AND ALL LIABILITY AND CLAIMS FOR THE DEATH OF OR INJURY TO ANY PERSON, INCLUDING BUT NOT LIMITED TO EMPLOYEES OF THE CONTRACTOR OR OF ANY INDEMNITEE, OR PROPERTY DAMAGE, INCLUDING THE LOSS OF USE OF PROPERTY, INCLUDING EXPENSES AND ATTORNEYS’ FEES RELATED THERETO, ARISING OR ALLEGED TO ARISE OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, ANY WORK ORDER OR CONTRACTOR’S PERFORMANCE OF THE WORK OR OTHER ACTIVITIES OF THE CONTRACTOR AND ITS AGENTS AND EMPLOYEES ON AND AROUND THE PREMISES AT WHICH THE WORK IS TO BE PERFORMED, EVEN IF SUCH CLAIM OR LIABILITY IS CAUSED IN PART BY THE NEGLIGENCE OF ANY INDEMNITEE, IT BEING THE EXPRESS INTENT OF THE PARTIES THAT THE CONTRACTOR INDEMNIFY THE INDEMNITEES. THE CONTRACTOR ALSO AGREES TO INDEMNIFY INDEMNITEES AND HOLD THEM HARMLESS FROM ALL EXPENSES, INCLUDING ATTORNEYS’ FEES, CAUSED BY OR RELATED TO ANY BREACH BY CONTRACTOR OF THE COVENANTS CONTAINED IN THIS AGREEMENT OR ANY WORK ORDER. THE CONTRACTOR SHALL BE RESPONSIBLE FOR DAMAGE TO OR LOSS OF THE WORK, WHETHER COMPLETED OR UNDER CONSTRUCTION, UNTIL RESPONSIBILITY FOR THE WORK HAS BEEN ACCEPTED BY THE OWNER AND APT, AND THE CONTRACTOR AGREES TO INDEMNIFY INDEMNITEES AGAINST ALL EXPENSES AND COSTS CAUSED BY ANY SUCH DAMAGE OR LOSS FROM ANY CAUSE, EVEN IF SUCH DAMAGE OR LOSS IS CAUSED IN PART BY THE NEGLIGENCE OF ANY INDEMNITEE. THE CONTRACTOR WILL ALSO TAKE PRECAUTIONS TO PROTECT OTHER PORTIONS OF THE WORK. THE CONTRACTOR SHALL PROCURE CONTRACTUAL LIABILITY INSURANCE COVERING ITS OBLIGATIONS HEREIN.
  2. To the extent the Contractor has been paid pursuant to the terms of this Agreement, the Contractor agrees that neither it nor its subcontractors, suppliers or mechanics or anyone claiming under them, shall have any lien upon any work performed or materials furnished pursuant to this Agreement or any Work Order, or the premises on which the work is performed or materials furnished, and the Contractor hereby waives on behalf of itself and its subcontractors, suppliers and mechanics and those claiming under them, all right to any such lien. The Contractor agrees to indemnify APT against all lien claims and bond claims, including expenses, costs of bonds to remove liens, and attorneys’ fees related to such claims, which may be asserted by mechanics, material-men, suppliers or subcontractors of the Contractor or anyone claiming as one of them. The Contractor also agrees that if liens are placed on the work or the premises on which the work is performed or materials furnished, it will immediately obtain such bond that is necessary to remove such lien. If bond claims and/or lien claims are filed by any subcontractors, material-men, suppliers or mechanics of the Contractor, the Company may suspend payments to the Contractor and either withhold money due the Contractor or make payments to the claimants and charge the payments against the Contractor. 
  3. THE CONTRACTOR’S OBLIGATION TO INDEMNIFY AGAINST ANY ATTORNEYS’ FEES OR OTHER COSTS OR EXPENSES INCURRED IN CONNECTION WITH THE DEFENSE OF ANY CLAIMS OR CAUSES OF ACTION SHALL BE CONSTRUED AS A SEPARATE ITEM OF INDEMNIFICATION THAT SHALL BE AN ABSOLUTE OBLIGATION OF THE CONTRACTOR EVEN IF SUCH CLAIMS OR CAUSES OF ACTION ARE INVALID OR GROUNDLESS, OR ARISE FROM THE SOLE OR PARTIAL NEGLIGENCE OF ANY INDEMNITEE.
  1. LEGAL ACTION: In the event of any litigation between APT and Contractor to enforce the provisions of this Agreement or any right of either party thereto, the prevailing party in such litigation shall be entitled to receive from the other party an award of all costs and expenses, including reasonable attorney’s fees, and all legal expenses, incurred in connection with the preparation, execution, protection, enforcement and collection of this Agreement. Costs and expenses shall include but not be limited to the prevailing party’s reasonable attorney’s fees and legal expenses, including reasonable attorney’s fees and legal expenses for bankruptcy proceedings (and including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. This Agreement shall be interpreted under the laws of the State of Florida. Jurisdiction and venue for any legal actions arising out of this Agreement shall be in Broward County, Florida.
  2. TAXES: Required Sales Tax, Use Tax, or any other applicable tax shall be included in the contract dollar amount and paid by the Contractor. APT will only pay taxes to the contractor as specified in the approved Work Order amount.
  3. ASSIGNMENT: This Agreement shall not be assigned by the Contractor or anyone else for the performance of the work or the collection of the proceeds. NOR SHALL THIS AGREEMENT OR ITS PROCEEDS BE ASSIGNED AS COLLATERAL TO ANY BANK OR OTHER LENDER. Any attempt to assign the Agreement either for performance, collection, or collateral, shall operate as an instant forfeiture and repudiation thereof by the Contractor and the rights of the parties shall, in the event, be determined in the same manner as if the Contractor then and there failed and refused to continue to perform under this Agreement. Any attempt by the Contractor to subcontract this Agreement, or any part thereof, without the express written consent of APT shall constitute an Event of Default as described in Paragraph 32 of this Agreement.
  4. INVOICES: Contractor must provide an itemized list for labor, travel, materials, tax and a detailed description of work including delays and extenuating circumstances in order to justify labor hours charged. For invoices received within five (5) days of completion of Work Order, APT will make payment, subject to standard deductions and credits, within sixty (60) days. For invoices received after fifteen (15) days of completion of Work Order, APT may, in its sole discretion, deduct from the payment a late fee of $35.00 per invoice. APT will not be responsible for payment of any invoice received more than twenty (20) days after completion of the Work Order. Invoices submitted without the required documentation will not be considered received until all required documentation is submitted. No line item descriptions submitted on an invoice by the Contractor categorized as “miscellaneous,” “miscellaneous materials,” or the like will be accepted or paid by APT. The following must be included with Contractor’s invoice:
    1. An original APT Work Order. The Work Order must have a customer signature and/or store stamp (as required), a description of services performed and materials itemized;
    2. Photos of completed work (night and day, if lighted, including service work), if requested. Photos of damage, if applicable;
    3. Copy of APT Purchase Order with Contractors signature;
    4. Copy of all applicable permit(s);
    5. E. All documents required by the scope of work as contained in the Work Order; and
    6. F. Confirmations or log-in – log-out documents, as per customer requirements for customer’s electronic/automated/telephonic systems, i.e., IVR, Service Channel, Work Oasis, etc.

Notwithstanding the foregoing, APT reserves the right to withhold payment in whole or in part without becoming liable to Contractor if, in APT’s sole opinion, APT has reasonable grounds to believe that Contractor is or may be liable to APT or has or may default, or that liens, garnishments or attachment have or may be asserted or that there is defective Work. Such withholding will be to the extent and for so long as is reasonably necessary in APT’s sole judgment.

 

  1. SAFETY: Contractor will adhere to all legally mandated and all generally accepted A.P.I., OSHA, state and territorial laws, regulations and standards of safety and workmanship and to ensure site safety standards or job work rules in order to avoid injury to workers and others and damage to equipment, materials and property. Contractor must promptly notify APT in writing of any injuries by Fax by no later than the end of the shift during which the injury occurred.
  2. RESTRICTIVE COVENANTS: During the term of this Agreement and until the third anniversary of the termination of this Agreement, Contractor, on behalf of itself, its respective affiliates, subsidiaries, officers, directors, partners, employees, agents or representatives and, to the extent applicable, its successors and assigns agrees not to: (i) contact any customer that Contractor has performed work for on behalf of APT, except with specific consent of APT; (ii) induce any customer that Contractor has performed work for on behalf of APT or any contractor, subcontractor, or  joint venture partner of APT to patronize any business that is in direct or indirect competition with APT; (iii) canvass, solicit or accept from any subcontractor, a customer that Contractor has performed work for on behalf of APT; or (iv) request or advise any individual or company that is a customer that Contractor has performed work for on behalf of APT or any contractor, subcontractor or joint venture partner of APT to withdraw, curtail or cancel any such customer’s business with APT. Contractor acknowledges and agrees that, in the event of any breach of any provision in this paragraph, in addition to any other remedy to which APT may be entitled at law or in equity, or pursuant to this Agreement, Contractor shall forfeit any monies due it for any invoices that are outstanding at the time of the breach or that become due or payable thereafter.  Moreover, all Work Orders for Contractor shall be deemed cancelled at the time of the breach, and Contractor shall not be entitled to any compensation for any work performed or materials provided.  Additionally, any materials provided to the Contractor directly or indirectly by APT or APT’s customer must be returned to APT or its designee at the Contractor’s expense.
  3. SEVERABLITY: If any provision of this Agreement is adjudged by a court to be invalid or unenforceable, that adjudication will in no way affect any other provision of the said section or any other part of this Agreement, the application of such provision in any other circumstances or the validity or enforceability of this Agreement. If any provision of Section 20, or any part thereof, is held to be unenforceable because of the duration of such provision or the geographic area covered thereby or the nature of the business activity covered thereby, the parties agree that the court making such determination shall reduce the duration, geographic area, and/or business coverage of such provision, and/or to delete specific words or phrases, and in its reduced form such provision will then be enforceable and will be enforced. Upon a breach of any provision of the Restrictive Covenants section, APT shall be entitled to injunctive relief, because the remedy of law would be inadequate and insufficient. In addition, APT shall be entitled to all other damages as provided by law.
  4. INFORMATION: In connection with Contractor’s desire to work with APT on a number of projects (the “Work”), APT has furnished and is furnishing certain information regarding the business activities, operations, methods, customers, subcontractors, joint venture partners of APT to Contractor. The term “Information” shall mean all information that APT has furnished and is furnishing to Contractor whether furnished before or after the date of this Agreement, whether tangible or intangible, and in whatever form or medium provided, as well as all information generated by Contractor or its representatives, as defined below, that contains, reflects, or is derived from the furnished information.
  5. CONFIDENTIALITY: In consideration of APT’s disclosure to it of the Information, Contractor agrees that it will keep the Information secret and confidential and that the Information will not, without the prior written consent of APT, be disclosed by Contractor or by its officers, directors, partners, employees, agents, affiliates, subsidiaries or representatives (collectively, “Representatives”) in any manner whatsoever, in whole or in part, and shall not be used by Contractor or by its Representatives other than in connection with the Work. Moreover, Contractor agrees to transmit the Information only to such of its Representatives who need to know the Information for the sole purpose of assisting Contractor in performing the Work. Contractor shall inform any such Representative of this Agreement and will obtain, in writing, from any such Representative an agreement to be bound by the terms hereof as if a party hereto. In any event, Contractor shall be fully liable for any breach of this Agreement by its Representatives.
  6. RETURN OF INFORMATION: Contractor agrees that, at the conclusion of the Work or within three (3) business days of APT’s request, all copies of the Information in any form whatsoever (including but not limited to any reports, memoranda, or other materials prepared by Contractor (or at its direction) will be delivered by Contractor and its Representatives to APT.
  7. SUBPOENA: In the event that Contractor or any to whom it supplies the Information receives a request to disclose all or any part of the information under the terms of a subpoena or order issued by a court or by a governmental body, Contractor agrees:
    1. To notify APT immediately of the existence, terms and circumstances surrounding such request;
    2. To consult with APT on the advisability of taking legally available steps to resist or narrow such request; and
    3. If disclosure of such Information is required to prevent Contractor from being held in contempt or subject to other penalty, to furnish only such portion of the Information as, in the written opinion of counsel satisfactory to APT, it is legally compelled to disclose and to exercise its best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Information.
  8. AMENDMENT AND MODIFICATION: The parties hereto may amend, modify and supplement this Agreement in such manner as may be mutually agreed upon by them in writing.
  9. BINDING EFFECT: This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns, heirs and legal representatives.
  10. ENTIRE AGREEMENT: This Agreement, the schedules and exhibits attached hereto and the Work Orders contain the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior understandings and agreements of the parties with respect to the subject matter hereof, except all prior confidentiality agreements between the parties hereto are hereby ratified and confirmed and shall not be merged herein or otherwise affected.
  11. EXECUTION IN COUNTERPART: This Agreement may be executed in any number of counterparts, each of which shall be deemed an original.
  12. NOTICES: Except as otherwise expressly provided herein, all notices and other communications shall have been duly given and shall be effective (a) when delivered, (b) when transmitted via telecopy (or other facsimile device) to the number set forth below (provided the receipt thereof shall be confirmed in writing), (c) the day following the day on which the same has been delivered prepaid to a reputable overnight air courier service, (d) the fifth day following the day on which the same is sent by certified or registered mail, postage prepaid, in each case to the respective parties at the address set forth below, or such other address as such party may specify by written notice to the other party hereto:

Advanced Power Technologies, 1500 N. Powerline Rd., Pompano Beach, FL 33069

Attn: Paul Nizer and Devin Grandis

Fax # (954) 984-4400

Notice to Contractor shall be at the address specified in the Contractor Survey Form. Any party may change the address to which notices hereunder are to be sent to it by giving written notice of such change of address in the manner herein provided by giving notice. Any notice delivered personally shall be deemed to have been given on the date it is so delivered, and any notice delivered by registered or certified mail or by Federal Express shall be deemed to have been given on the date it is received.

 

  1. EVENT OF DEFAULT AND TERMINATION:
    1. Event of Default: The occurrence of, but not limited to, any one of the following shall constitute an event of default by the Contractor (“Default”) under this Agreement and any Work Order:
  2. The Contractor, at any time, fails to supply a sufficient number of skilled workers or a sufficient quantity of quality materials;
  3. The Contractor fails in any respect to prosecute the Work covered by this Agreement or any Work Order with due diligence;
  4. The Contractor fails to perform work of the quality or caliber required by APT;
  5. The Contractor fails in the performance of any of the agreements including completion of all documentation required;
  6. The Contractor subcontracts, or attempts to subcontract, this Agreement, or any part thereof, without the express written consent of APT; or
  7. The Contractor fails to comply with any of the terms and conditions provided under this Agreement.

Upon a Default, the Contractor shall not be entitled to receive any further payments under this Agreement or any Work Order, but shall nevertheless remain liable for any damages that APT may incur with respect to the Work.

  1. Remedies upon Default: Upon a Default, APT may, after forty-eight (48) hours prior written notice to Contractor, do any of the following:
  1. APT and its employees or agents may enter the premises and take possession, for the purpose of completing the work to be completed under this Agreement or the Work Order in question, of all the materials, tools and equipments thereon, and to finish the work with either APT’s own employees or other subcontractors;
  2. APT may obtain, purchase or retain any such labor and materials necessary for completion of the work, and deduct the cost of doing such from any monies then due or thereafter to become due to the Contractor;
  3. APT may, in its sole discretion, terminate the employment of the Contractor with respect to the work under this Agreement and under any outstanding Work Order.

If the expenses incurred by APT in completing the Work shall exceed the unpaid balance, the Contractor shall be required to pay the difference of such amounts to APT, in addition to any other damages that may be incurred by APT as a result of Contractor’s Default. APT shall credit Contractor’s account with the value of the materials and supplies previously purchased by Contractor and used to remedy the Contractor’s default, however no credit shall be applied for the use or any rental of the Contractor’s equipment. The Contractor hereby waives all claims against APT for any profits, rental for equipment or other damages related to the Contractor’s Default under this Agreement.

  1. IRREPARABLE HARM, INJUNCTION, LEGAL EXPENSES: Contractor acknowledges and agrees that, in the event of any breach of this agreement, APT would be irreparably and immediately harmed and could not be made whole by monetary damages. Accordingly, it is agreed that, in addition to any other remedy to which it may be entitled in law or equity, APT shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to prevent breaches or threatened breaches of this Agreement and/or to compel specific performance of this Agreement, and that neither Contractor nor its Representatives will oppose the granting of such relief. Contractor also agrees to reimburse APT for all costs and expenses, including attorneys’ fees, incurred by APT in attempting to enforce the obligations of Contractor or of its Representatives hereunder.

In the event of any litigation between APT and Contractor to enforce the provisions of this Agreement or any right of either party thereto, the prevailing party in such litigation shall be entitled to receive from the other party an award of all costs and expenses, including reasonable attorney’s fees, and all legal expenses, including reasonable attorney’s fees and legal expenses for bankruptcy proceedings (and including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. Except as provided above, if either party hereto is made a party to any litigation instituted by or against any other party to this agreement, such other party shall indemnify APT or Contractor, as the case may be, against and shall hold it harmless from all costs, expenses, and damages, including reasonable attorney’s fees, incurred in connection therewith.

  1. NO WAIVER: No failure or delay by APT in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof.
  2. AUTHORITY: The parties executing this document hereby represent and warrant that they have the authority to execute this Agreement on behalf of the corporation or partnership.
  3. REASONABLENESS: Contractor acknowledges that the restrictions set forth herein are fair and reasonable and are necessary in order to protect the business of APT and the confidential nature of the Information. Recipient further acknowledges that any information disclosed by APT is unique to the business of APT and would not be revealed to Recipient were it not for its willingness to agree to the restrictions set forth herein.