Labwire, Inc. Blanket Agreement: 071306 | To Be Used For: Security Services
Labwire,
Inc. Blanket Agreement: 071306
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For: Security Services
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VENDOR:
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Labwire,
Inc.
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Shell
Oil Company
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Address:
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Attn:
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Telephone:
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Fax:
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( )
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Internet:
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Ship
To: As Per BUYER’S
Release
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▇▇▇▇
To: Unless otherwise directed by BUYER’S release Order, invoices are to be
directed to the following address: Shell Oil Company Attn: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ OSP File room 22. 10B ▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
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Non-Taxable Taxable Own
Use Resale Accounting
Code, BUYER’S Release
x x Document
or AFE: As Per BUYER’S
Release
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1. Payment
Terms of Net 30 days will be based on the date invoice is received. All invoices
and packing slips must reference the applicable BUYER Release Document and be
forwarded to the “▇▇▇▇ To” address. Failure to do so
may delay or prevent payment.
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Delivery
term:
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As
per BUYER’S Release,
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if
applicable
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Shipping
Directions:
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As
Per BUYER’S Release,
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if
applicable
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Freight
Charges:
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() Prepaid
& Allowed
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( x
) Prepaid/ Add to Invoice
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) Collect
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Notice: This form contains a
Liability-Indemnity clause. Please read carefully.
Scope
& Duration
This
Blanket Agreement number 071306 (“Agreement”) between Shell Oil Company
(“BUYER”) and Labwire, Inc. (“VENDOR”), having its principal office in Houston,
Texas sets forth the terms and conditions pursuant to which VENDOR is to furnish
Security Services which are further described in Attachment A (individually
and/or collectively, “Work”), including necessary tools, labor, equipment,
materials, supplies (other than those materials or supplies furnished by BUYER),
transportation, testing, clean up, permits, and labor and supervision (including
costs of worker’s compensation and/or employer’s liability insurance and all
payroll taxes on such labor) necessary to provide the Work. This Agreement is
effective as of August 1, 2006 (the “Effective Date”) and shall remain in effect
until terminated as provided herein. In no event shall this Agreement exceed the
maximum term duration of five (5) years from the Effective Date. Prior to
termination, it is understood that BUYER may request a review and modification
of these terms, including but not limited to, scope of work, performance
indicators, pricing, etc. In the event of any conflict between the terms and
conditions set forth in a BUYER Release Document hereunder and this Agreement,
the terms and conditions of this Agreement prevail except to the extent the
terms or conditions of the BUYER Release Document specifically state they
supersede or amend the terms or conditions of this Agreement.
Standard
Terms and Conditions
GENERAL CAUTION: Flammable
liquids and gases may be present in equipment and work areas involved in
performance of this Agreement. VENDOR must take extreme care in such
performance, and accept the entire risk to VENDOR and VENDOR’S employees and
property in connection herewith.
1. Contract.
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1.1
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This
Agreement, when accepted by VENDOR in writing, constitutes the entire
agreement between VENDOR and BUYER concerning its subject matter; and
neither any contrary or additional conditions then specified by VENDOR nor
any subsequent amendment or supplement shall have any effect without
BUYER’S prior written
approval.
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1.2
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Ethics.
BUYER and VENDOR will base their relationship on mutual respect, honesty,
and integrity. Neither party may accept or solicit gifts, entertainment,
or other social favors to influence business decisions. Courtesies of
nominal value and social invitations customary and proper under the
circumstances are not unethical as long as they imply no business
obligation whatsoever or do not involve significant or out-of-the-ordinary
expense.
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1.3
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Changes.
No changes in the Goods and/or Services under this Agreement or any BUYER
Release Document shall be made without the written agreement of both BUYER
and VENDOR.
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2. Quality
Assurance.
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2.1
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VENDOR
warrants that any Service provided will be free of defects in workmanship
and materials. VENDOR Services will be competent and any recommendations
of its representatives will reflect their professional knowledge and
judgment. If any Service fails to conform to this warranty any time within
twelve (12) months after completion of the Service, VENDOR will provide
Services to the same extent as under the original Agreement at VENDOR’S
expense. VENDOR’S standard warranty period applies if longer than 12
months.
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2.2
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Neither
BUYER’S inspection nor failure to inspect shall relieve VENDOR of any
obligation hereunder. No acceptance or payment by BUYER shall constitute a
waiver of the foregoing; and nothing herein shall exclude or limit any
warranties implied by law. The remedies stated herein shall be cumulative
of any other remedies available in law or equity and shall extend to
BUYER, its successors, assigns, and
customers.
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3. Taxes.
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3.1
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BUYER
shall pay to VENDOR, in addition to the prices provided for herein, any
foreign or domestic duty, sales or use tax, fee, or other tax or charge
(“Tax”) that VENDOR may be required by any municipal (including special
taxing authority), state, federal or foreign government law, rule,
regulation or order to collect or pay with respect to the sale,
transportation, storage, delivery, installation or use of the Goods and/or
Services delivered hereunder.
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3.2
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VENDOR
shall indemnify BUYER against any liability and expense in excess of the
amount of Tax due that is incurred by BUYER by reason of VENDOR’S failure
properly to remit said Tax to the proper government agency. In the event
that VENDOR recovers a refund of, or credit for, any Taxes paid to VENDOR
by BUYER with respect to the sale of the Goods and/or Services herein
described or of any taxes measured by the price of such Goods or Services
or the gross receipts from such sale, then VENDOR agrees to refund to
BUYER the full amount of such refund or credit.
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3.3
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Notwithstanding
the above, VENDOR
shall not collect, and BUYER shall not pay, any such Tax for which BUYER
furnishes to VENDOR a properly completed exemption certificate or a direct
payment permit certificate or for which VENDOR may claim an available
exemption from Tax, such as exemption for export. BUYER shall be
responsible for any Tax, penalty, and interest if such exemption
certificate or direct payment permit certificate is later held by any
proper authority to be invalid. Further, VENDOR shall not collect, BUYER
shall not pay, and VENDOR shall indemnify BUYER against any liability for
any Tax, fee or other charge based on or measured by the net income or net
worth of VENDOR, or any employment related Tax, fee, or charge (including
without limitation, withholdings for W-2, Social Security, Medicare, or
unemployment compensation
benefits).
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3.4
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This
Agreement shall not be construed to establish a joint venture, partnership
or other formal business organization. Furthermore, the Parties agree that
this Agreement does not constitute a partnership for tax purposes. In the
event that it is so construed, however, the Parties agree to be excluded
from the provisions of Subchapter K of the United States Internal Revenue
Code of 1986, as amended.
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4. Compliance.
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4.1
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In
performance hereunder and every activity connected therewith, VENDOR shall
comply fully with all applicable laws, ordinances, rules and regulations,
and when requested, shall furnish evidence satisfactory to BUYER of such
compliance. Without limiting the foregoing, VENDOR warrants that (a) all
articles and Goods furnished were and shall be produced and all Services
performed in compliance with the Fair Labor Standards Act of 1938 as
amended and (b) VENDOR shall notify BUYER if VENDOR or anyone performing
services under this Agreement is a former employee of a Federal agency who
is prohibited from receiving compensation under 41 U.S.C. 423. In its
performance hereunder, VENDOR shall not employ, contract or subcontract
with persons or entities who have or are suspected of having connections
with organized crime, international terrorism, or interests in illicit
drug or other internationally condemned activities. VENDOR, as a
subcontractor under U.S. Government contracts, hereby certifies and
confirms that VENDOR is and will remain in compliance with all Executive
Orders and laws and the regulations issued thereunder required of
subcontractors under U.S. government contracts, including, but not limited
to the following which, as applicable, are incorporated herein by
reference:
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Executive
Order 11246, as amended; Section 402 of the Vietnam Era Veterans Readjustment
Assistance Act of 1974, as amended; Section 503 of the Rehabilitation Act of
1973, as amended; Executive Order 11625, as amended; Executive Order 12138, as
amended; Small Business Act, as amended; Anti-Kickback Enforcement Act of 1986;
Drug-Free Workplace Act of 1988; Clean Air Act, as amended; Clean Water Act, as
amended; Executive Order 11738, as amended. VENDOR will promptly furnish such
further certificates and assurance of compliance with the foregoing as may from
time to time be requested.
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4.2
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Export Control.
VENDOR acknowledges that it is familiar with and will comply with all
applicable regulations of the United States Department of Commerce and
other government agencies concerning restrictions on participation in
unsanctioned foreign boycotts and/or the export or re-export of United
States origin goods, software and technical data, or the direct product
thereof, to unauthorized persons or destinations. Where appropriate,
VENDOR will assure that the export privileges of its employees, agents,
and subcontractors have not been denied, suspended, or revoked, in whole
or in part, and that such party is not listed on any restricted parties
list published by the US government. Unless otherwise agreed by the
parties, VENDOR will be responsible for obtaining any required U.S.
government authorization, including but not limited to export licenses.
Where appropriate, VENDOR will provide BUYER the Export Control
Classification Number (ECCN) with any product shipment. VENDOR agrees to
abide by all applicable regulations in respect of information supplied by
or on behalf of BUYER, including but not limited to releases of technical
data or software source code to foreign nationals located in the United
States.
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4.3
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Background
Checks. VENDOR, and its subcontractors, if any, will perform an
appropriate background investigation of its employees before entry onto
BUYER premises. Such backgroundinvestigation
should include, but is not necessarily limited to, criminal record
reports, Social Security traces, driving record reports, employment
verification, and education verification, in accordance with federal,
state and local laws.
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4.4
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Codes of
Conduct. VENDOR acknowledges receipt of a copy of Shell’s US Code
of Conduct. VENDOR shall ensure that such Code is respected by VENDOR and
its subcontractors in relation to provision of Goods and Services under
this Agreement. Also Vendor shall ensure that all work performed hereunder
is in compliance with Attachment C, “Voluntary Principles on Security and
Human Rights” and if applicable, “Use of Force” guidelines, attached
hereto and made a part of this
Agreement.
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4.5
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Publicity.
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VENDOR,
its employees, agents, and subcontractors shall not prepare photographs,
articles, press releases, or speeches about the existence of, scope of, or Work
to be performed under this Agreement or any generalities or details about
BUYER’S facilities or business plans without BUYER’S prior written consent.
Applications for approval must be submitted to BUYER in writing and outline the
intended uses thereof. Neither VENDOR nor BUYER will use the name or trademark
of the other in any material prepared for public announcement, general
publication or distribution to any third party without obtaining prior written
permission of the other party. Notwithstanding the foregoing, either party may
distribute a copy of this Agreement to any subsidiary, affiliate, agent, or
subcontractor for purposes of performance hereunder.
5. Infringement.
VENDOR
shall indemnify and defend BUYER against all claims, suits, liability and
expense on account of alleged infringement of any patent, copyright or
trademark, resulting from or arising in connection with the manufacture, sale,
normal use or other normal disposition of any article or material furnished
hereunder or with the performance of any service provided hereunder. BUYER may
participate in the defense of any claim or suit without relieving VENDOR of any
obligation hereunder.
6. Assignment and
Subcontracting.
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6.1
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Neither
this Agreement nor any claim against BUYER arising directly or indirectly
out of or in connection with this Agreement shall be assignable by VENDOR
or by operation of law; provided, however, that BUYER shall have the right
to assign to a successor in interest without consent of
VENDOR.
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6.2
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VENDOR
shall not subcontract any obligations hereunder without BUYER’S prior
written consent. BUYER’S consent to any subcontracting shall, however, (a)
not constitute a waiver of any right of BUYER to reject Goods and/or
Services which are not in conformance with this Agreement or any BUYER
Release Document; (b) not create any contractual relationship between
BUYER and any subcontractor with respect to the Goods and/or Services to
be provided hereunder or under any BUYER Release Document; or (c) not
relieve VENDOR of its responsibility for all acts or omissions of its
subcontractors hi performance hereunder or under any BUYER Release
Documents.
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6.3
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In
performing Services hereunder, VENDOR will maintain complete control over
and have full responsibility for its employees and agents and will have
full responsibility for the performance of its subcontractors. Any
derivative subcontracts VENDOR has with its’ subcontractors in order to
perform Work for BUYER shall have the necessary insurance coverage
requirements as set forth in Attachment D of this Agreement including
waiver of subrogation and additional insured provisions, Section II. BUYER
reserves no right to direct, supervise or control the operations,
employees or subcontractors of VENDOR. Services under this Agreement must
meet BUYER’S approval and are subject to the general right of inspection
that allows BUYER to ensure satisfactory completion of the
Services.
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Execution
Copy
7. Termination.
BUYER may
terminate this Agreement in whole or in part at any time with or without cause
(including, without limitation, default or breach by VENDOR) by written notice
to VENDOR. Upon receipt thereof, VENDOR shall (a) cease all performance except
as requested by BUYER; (b) at BUYER’S request, assign BUYER all VENDOR’S rights
or terminate to the extent possible all outstanding purchase commitments and
other third party agreements; and (c) take other actions as reasonably requested
by BUYER to effect termination. BUYER shall have right to take possession of any
portion of the Goods or Services in progress. BUYER’S sole liability shall be to
pay reasonable value (but in no event more than the contract price) for such
Goods or Services and/or VENDOR’S prior performance and performance to effect
termination. BUYER may, at its option, complete performance of the Goods or
Services. In the event of BUYER termination for cause pursuant hereto, VENDOR
shall be liable to BUYER for all cost incurred by BUYER completing such
performance in excess of the contract price. Time is of the essence hereof, and
BUYER’S right to require strict performance by VENDOR shall not be affected by
any waiver, forbearance or course of dealing.
8. Withholding and
Enforcement.
BUYER
shall have the right to withhold any money ever payable by it hereunder and
apply the same to payment of any obligations of VENDOR to BUYER or to any other
parties arising in any way out of this Agreement or its performance. VENDOR
shall reimburse BUYER for reasonable attorneys’ fees and costs to enforce VENDOR
obligations under this Agreement.
9. Excuses.
Either
VENDOR or BUYER shall be excused from performance of the obligations hereunder
when and to the extent that such performance is delayed or prevented (and, in
BUYER’S case, its need for the articles, Goods or Services is reduced or
eliminated) by any circumstances reasonably beyond its control, or by fire,
explosion, acts of terrorism, any strike or labor dispute or any act or omission
of any Governmental authority or any group purporting to have authority. To be
so excused, the affected party must provide prompt notice and undertake
reasonable efforts to mitigate the conditions.
10. Ownership of Work
Product.
VENDOR
hereby assigns all right, title and interest in and to the Goods provided or any
work produced as a result of Services hereunder (“Work Product”) to BUYER. For
purposes hereof, Work Product shall include all tangible Work Product prepared
for or provided to BUYER by VENDOR in performance of this Agreement. The Work
Product shall be the sole and exclusive property of BUYER and may be used for
any purpose BUYER desires without additional fee or cost. VENDOR and BUYER agree
that all Work Products not generally available to the public shall be treated as
Confidential Information of BUYER. Any drawings, specifications, or other data
furnished by BUYER to VENDOR shall remain the property of BUYER and shall be
promptly returned to BUYER upon completion of the Work unless VENDOR is
otherwise instructed in writing by BUYER.
11. Performance.
VENDOR
shall perform all Services diligently, carefully and in a good and workmanlike
manner; shall furnish all labor, supervision, machinery, equipment, materials
and supplies necessary therefore; shall obtain and maintain all building and
other permits and licenses required by public authorities in connection with
performance of the Services; and, if permitted to subcontract, shall be fully
responsible for all Services performed by subcontractors. VENDOR shall conduct
all operations in VENDOR’S own name and as an independent contractor, and not in
the name of, or as agent for BUYER. Any provisions in this Agreement which may
appear to give BUYER the right to direct VENDOR as to details of performing the
Services herein covered, or to exercise a measure of control over the Services
shall be deemed to mean that VENDOR shall follow the desires of BUYER in the
results of the Services only.
12. Liability-Indemnity.
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12.1
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VENDOR
shall be solely responsible for all materials, tools, equipment and
services until the Services are completed to BUYER’S
satisfaction.
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12.2
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TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VENDOR SHALL DEFEND,
INDEMNIFY AND HOLD HARMLESS BUYER, ITS PARENT, AFFILIATES AND SUBSIDIARY
COMPANIES, COVENTURERS, AND DIRECTORS, EMPLOYEES AND AGENTS OF SUCH
COMPANIES AGAINST ANY LOSS, DAMAGE, CLAIM, SUIT, LIABILITY, JUDGMENT AND
EXPENSE (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES AND OTHER COSTS OF
LITIGATION), AND ANY FINES, PENALTIES AND ASSESSMENTS, ARISING OUT OF
INJURY, DISEASE OR DEATH OF PERSONS (INCLUDING BUT NOT LIMITED TO VENDOR’S
EMPLOYEES) OR DAMAGE TO OR LOSS OF ANY PROPERTY (INCLUDING BUT NOT LIMITED
TO BUYER’S EXISTING FACILITIES) OR THE ENVIRONMENT OR VIOLATION OF THE
APPLICABLE LAW OF ANY GOVERNMENTAL AUTHORITY HAVING JURISDICTION RESULTING
FROM OR IN CONNECTION WITH PERFORMANCE OR NONPERFORMANCE OF SERVICES UNDER
THIS AGREEMENT BY VENDOR, ITS AGENTS OR SUBCONTRACTORS (INCLUDING BUT NOT
LIMITED TO EMPLOYMENT DECISIONS OR EMPLOYEE RELATIONS PRACTICES OR
POLICIES OF VENDOR, ITS AGENTS OR SUBCONTRACTORS MADE OR INSTITUTED IN
CONNECTION WITH PERFORMANCE OF THIS AGREEMENT), EVEN THOUGH CAUSED BY THE
CONCURRENT AND/OR CONTRIBUTORY NEGLIGENCE (WHETHER ACTIVE OR PASSIVE OR OF
ANY KIND OR DESCRIPTION), STRICT LIABILITY (INCLUDING WITHOUT LIMITATION
STRICT STATUTORY LIABILITY AND STRICT LIABILITY IN TORT), OR OTHER FAULT
OF A PARTY INDEMNIFIED, SUBJECT TO THE NEXT TWO SUCCEEDING SENTENCES
HEREIN. WITHOUT REGARD TO THE EXTENT OF NEGLIGENCE, IF ANY, OF AN
INDEMNIFIED PARTY, VENDOR, AT ITS EXPENSE, SHALL DEFEND ANY SUCH CLAIM OR
SUIT AGAINST AN INDEMNIFIED PARTY AND SHALL PAY ANY JUDGMENT RESULTING
THEREFROM. IF, AFTER VENDOR HAS BOTH DEFENDED ANY SUCH SUIT AND PAID ANY
RESULTING JUDGMENT, IT IS JUDICIALLY DETERMINED THAT THE INJURY, DISEASE,
DEATH, OR DAMAGE WAS CAUSED BY THE SOLE NEGLIGENCE OF A PARTY INDEMNIFIED,
THEN BUYER SHALL REIMBURSE VENDOR FOR THE JUDGMENT AND FOR REASONABLE
DEFENSE COSTS INCURRED.
BUYER
SHALL HAVE THE RIGHT BUT NOT THE DUTY TO PARTICIPATE IN THE DEFENSE OF ANY
SUCH CLAIM OR SUIT WITH ATTORNEYS OF ITS OWN SELECTION WITHOUT RELIEVING
VENDOR OF ANY OBLIGATIONS
HEREUNDER.
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12.3
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The
obligations, indemnities, and liabilities assumed by VENDOR under this
Article 12 shall not be limited by any provisions or limits of insurance
required by Article 13 below and shall survive the termination of this
Agreement.
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12.4
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If
it is judicially determined that any of the indemnity obligations under
this Agreement are invalid, illegal or unenforceable in any respect, said
obligations shall automatically be amended to conform to the maximum
monetary limits and other provisions in the applicable law for so long as
the law is in effect.
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13. Insurance.
Vendor
must comply with all insurance requirements outlined in Attachment D of this
Agreement.
14. Use of
Premises.
VENDOR
shall perform all Services in such manner as to cause minimum interference with
the operations of BUYER and of other contractors on the premises, and shall
take, and cause VENDOR’S and every subcontractor’s employees, agents, licensees,
and permittees to take, all necessary precautions (including those required by
BUYER’S safety regulations) to protect the premises and all persons and property
thereon from damage or injury. VENDOR confirms that safety shall be a primary
consideration in its performance of Services hereunder, and shall meet with
appropriate BUYER personnel to review all site-specific safety regulations prior
to the performance of Services. VENDOR shall investigate accidents (and/or
cooperate with BUYER in conducting investigations of accidents), which arise out
of VENDOR’S Services hereunder and provide copies of non-privileged accident
reports it produces in response to any such investigations. Upon completion of
the Work, VENDOR shall leave the premises clean and free of all equipment, waste
materials and rubbish.
15. Bills and
Liens.
VENDOR
shall pay promptly all indebtedness for labor, materials and equipment used in
performance of the Services. VENDOR shall not be entitled to receive final
payment from BUYER, until VENDOR furnishes evidence satisfactory to BUYER of
full payment of such indebtedness. VENDOR shall not permit any lien or charge to
attach to the Services or the premises; but if any does so attach, VENDOR shall
promptly procure its release, and indemnify BUYER against all damage and expense
incident thereto.
16. Drugs, Alcohol, and
Firearms.
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16.1
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BUYER’S
policy on illegal drugs, alcohol, and firearms, as it relates to
contractors, is set forth below. VENDOR agrees to communicate such policy
to VENDOR’S personnel and agrees to cooperate with BUYER in implementing
such policy on the jobsite(s) covered by this
Agreement.
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16.2
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The
use, possession, transportation, promotion, or sale of illegal drugs or
drug paraphernalia, and/or otherwise legal but illicitly used substances
by anyone while on BUYER’S premises is absolutely prohibited. Except where
specifically authorized, the use, possession, or transportation of
alcoholic beverages, firearms, live ammunition, explosives, or weapons is
also prohibited. VENDOR’S personnel who are found in violation of these
prohibitions will not be allowed on BUYER’S premises and may be referred
to law enforcement agencies for their
action.
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16.3
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The
term “BUYER’S premises” in this Article is used in the broadest sense and
includes all land, property, buildings, structures, installations, boats,
planes, helicopters, cars, trucks, and all other means of conveyance owned
by or leased to BUYER or otherwise being utilized in BUYER’S
business.
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16.4
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Entry
onto BUYER’S premises constitutes consent to and recognition of the right
of BUYER and its authorized representatives to search the person, vehicle,
and other property of individuals while on BUYER’S premises. Such searches
may be initiated by BUYER without prior announcement and will be conducted
at such times and locations as deemed appropriate. VENDOR’S personnel who
refuse to cooperate with searches will not be allowed on BUYER’S
premises.
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16.5
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VENDOR
is required to take whatever steps it deems necessary (including adopting
its own drug control program, if necessary) to ensure that involvement
with drugs on the part of VENDOR’S personnel working on BUYER’S premises
or with BUYER’S personnel does not create a presence of drug-related
problems in the work place. VENDOR may conduct contraband searches and
drug testing of VENDOR’S personnel on BUYER’S premises in areas where
VENDOR is performing work. VENDOR shall notify and obtain approval of
BUYER’S location management prior to conducting such searches or
testing.
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Execution
Copy
17. Right To
Audit.
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17.1
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Right to Audit.
During this Agreement and for four (4) years after completion, VENDOR will
keep accurate, auditable records of all associated charges. BUYER may
inspect and audit those records using its authorized
representatives.
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VENDOR
will keep all these records:
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a)
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Payroll
records that account for total time distribution for VENDOR’S employees
working full or part time on the Work (to permit tracing to payroll and
related tax returns), as well as cancelled payroll checks or signed
receipts for payroll payments in
cash
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b)
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Invoices
for purchases, receiving and issuing documents, and all other unit
inventory records for VENDOR’S stores stocks or capital
items
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c)
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Paid
invoices and canceled checks for purchased materials and subcontractor and
third-party charges
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d)
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Records
related to handling, hauling, and disposing of hazardous materials and/or
hazardous wastes
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e)
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Accurate,
auditable records of gifts, entertainment, or gratuities to individual
BUYER personnel
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18. Competitiveness and Price
Warranty.
VENDOR
warrants that it shall remain competitive in terms of the pricing, quality,
capacity, and delivery of Goods and Services provided to BUYER hereunder. VENDOR
also warrants that the prices for Goods or Services are no less favorable than
those extended by VENDOR to any of its other customers for the same or similar
Goods or Services in similar quantities. VENDOR further warrants that if it
reduces its prices to other customers for the same or similar Goods or Services
during the term hereof, VENDOR shall reduce its prices to BUYER correspondingly.
BUYER shall have the right to audit or review VENDOR’S competitiveness at any
time during the term of this Agreement. Should BUYER determine in good faith
that VENDOR has failed to remain competitive, and VENDOR fails to cure said lack
of competitiveness within a reasonable time, not to exceed thirty (30) days,
then BUYER may immediately terminate this Agreement for cause pursuant to
Article 7.
Additional
Terms and Conditions
The
following additional terms and conditions supplement the preceding standard
terms and conditions. To the extent the standard terms and conditions conflict,
the following Articles shall prevail.
19. Payment and
Invoicing.
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19.1
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As
full and complete compensation for VENDOR’S performance of the Services
and fulfillment of all VENDOR’S obligations under this Agreement, BUYER
shall pay VENDOR the applicable rates and such other sums as are expressly
set forth in Attachment B as being payable or reimbursable to VENDOR. Such
payments shall constitute the entire compensation due VENDOR under this
Agreement for the Services, without limitation, for all profits,
overheads, costs and expenses, including without limitation any income or
other taxes, in any way related to performance of the Services under this
Agreement. No other amounts whatsoever shall be payable by BUYER in
relation to this Agreement.
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Execution
Copy
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19.2
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BUYER
shall reimburse VENDOR the actual, reasonable, verified cost of expenses
incurred by VENDOR associated with performing requested Services provided
such expenses are authorized by BUYER and accompanied by appropriate
receipts. Such reimbursable expenses do not include any relocation
expenses and/or normal daily working and commuting expenses or any other
expenses the BUYER deems are the sole responsibility of VENDOR. VENDOR
must obtain prior written authorization by BUYER prior to incurring any
reimbursable expenses.
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19.3
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In
compliance with the Tax Equity and Fiscal Responsibility Act of 1982
(TEFRA), VENDOR shall submit invoices which reference this Agreement and
VENDOR’S Federal Tax Identification Number or Social Security Number for
all sums due hereunder to avoid BUYER’S withholding a 31% tax from
payments. All invoices must be supported by the necessary documentation
(See Section 19.4 below) to:
Shell
Oil Company
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
OSP
file room 22.10B
▇.▇.
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇
Invoices
will be submitted monthly payable 30 days from receipt of invoice and
approval by BUYER and such invoices must be documented as set forth in
Section 17(Audit
Rights).
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19.4
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Time
sheets signed by VENDOR and acknowledged by BUYER completely and
accurately describing the time worked by VENDOR shall accompany invoices
for the Services performed on a time/material (“t/m”) basis. Reimbursable
items must be supported by appropriate
receipts.
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19.5
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All
payments to VENDOR shall be mailed to the VENDOR’S address as set forth in
this Agreement, unless otherwise requested by BUYER by Release Document or
other means. When any term or condition of VENDOR’S invoice conflicts with
this Agreement, this Agreement shall prevail unless otherwise specifically
agreed in writing in the BUYER Release
Document.
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20. Agreement
Releases.
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20.1
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No
substitutions of any kind (design, material etc.) are acceptable without
written prior approval from appropriate BUYER
representative.
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20.2
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BUYER
representatives may issue releases for Goods and/or Services against this
Agreement using:
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a)
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Verbal
request with a follow-up written
confirmation;
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b)
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Written
Release Document; or
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c)
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Computer-generated
Release Document (e.g., Electronic Data Interchange or
“EDI”).
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20.3
|
Authorized
BUYER contractors may also purchase Goods and/or Services against this
Agreement for BUYER’S end-use. Referencing this Agreement number will
facilitate application of the proper
pricing.
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20.4
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This
Agreement does not commit BUYER to make any purchases or request any Goods
or Services hereunder. All orders are subject to acceptance or rejection
by VENDOR.
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20.5
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All
terms and conditions of this Agreement apply to all releases unless the
BUYER Release Document specifically states
otherwise.
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Execution
Copy
21. Affiliates and
Subsidiaries.
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21.1
|
Any
BUYER affiliate or subsidiary, as defined below, in countries legally
recognized by Federal law may use the terms and conditions herein in
orders placed in the United States of America, provided the BUYER
affiliate or subsidiary agrees for such orders to incorporate the terms
and conditions of this
Agreement.
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21.2
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BUYER
has no obligation or liability under this Agreement for any BUYER
affiliate’s/subsidiary’s purchase orders, performance, or failure to
perform. If a BUYER affiliate/subsidiary fails its obligations, VENDOR may
terminate the BUYER affiliate’s/subsidiary’s right to place other purchase
orders. Such a termination will not affect BUYER or any other BUYER
affiliates or subsidiaries.
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21.3
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A
BUYER affiliate/subsidiary has obligations only with respect to orders
placed by it and has no obligation or liability for BUYER’S and other
BUYER affiliates’/subsidiaries’ purchase orders, performance, or failure
to perform.
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21.4 These
definitions apply to the terms “BUYER’S affiliate” and “BUYER’S
subsidiary”:
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a)
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“BUYER’S
affiliate”
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(i)
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The
Ultimate Parent Entity and any entity that the Ultimate Parent Entity
directly or indirectly
controls.
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For this
purpose:
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a)
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The
Ultimate Parent Entity is Royal Dutch Shell pic;
and
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b)
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An
entity directly controls another entity if it owns fifty per cent or more
of the voting rights attached to the issued share capital of the other
entity; and
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c)
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An
entity indirectly controls another entity if a series of entities can be
specified, beginning with the first entity and ending with the other
entity, so related that each entity of the series (except the ultimate
controlling entity) is directly controlled by one or more of the entities
earlier in the series.
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(ii)
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Any
entity not falling under the definition set out in (i) which:
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a)
|
is
for the time being managed or operated by an entity as defined in (i);
or
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b)
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has
a construction-, IT service-, technical service-, business service- or
franchise agreement with any entity as defined in
(i).
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22. Suspension.
BUYER may
require VENDOR to suspend Work hereunder for such period as BUYER may direct. In
the event of such suspension, the parties shall confer and mutually agree as to
the period by which the scheduled completion date and price are to be
adjusted.
23. Pricing.
VENDOR
pricing for Work covered under this Agreement shall be in accordance with
Attachment B to this Agreement
Execution
Copy
24. Price
Change.
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24.1
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VENDOR
agrees to maintain current pricing as shown in Attachment B for a minimum
period of 12 months from the Effective Date of this
Agreement.
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24.2
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VENDOR
will invoice against this Agreement only at stated rates and prices. Price
changes require a written alteration, issued before the effective date of
the change.
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24.3
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VENDOR
will submit requests for price changes in writing, 60 days before the
proposed effective date. Requests should include current net price,
proposed new net price, net price change, and percentage of change. VENDOR
should include enough detail to allow BUYER to evaluate the proposed
change.
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25. Confidential
Information.
VENDOR
and BUYER will not, without the prior written consent of the other, either (a)
disclose the other’s proprietary or commercially sensitive information
(“Confidential Information”) to anyone other than those officers, employees,
agents, or subcontractors who need to know it in connection with performance of
this Agreement and have agreed to be bound by these obligations of
confidentiality or (b) use the other’s Confidential Information for any purpose
other than performance of this Agreement. For purposes of this Agreement, all
data, maps, reports, drawings, specifications, records, technical information,
and computer programs/software concerning BUYER’S operations, processes or
equipment that are provided by BUYER and/or acquired or handled by VENDOR in
connection with this Agreement shall be deemed Confidential Information of
BUYER.
26. Independent
Contractor.
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26.1
|
Except
as otherwise expressly set forth herein, neither VENDOR nor anyone it
employs shall ever be considered BUYER’S employee, agent, servant, or
representative in performing Services under this Agreement. VENDOR’S
personnel will not be eligible to participate in any of BUYER’S employee
benefit plans or to receive any benefits under those plans. In the event
that any federal or state court or agency holds VENDOR to be an employee
of BUYER for any purpose, VENDOR expressly waives any right to participate
in or claim any benefits from any such plans of
BUYER.
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26.2
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To
the maximum extent permitted by law, VENDOR shall defend, indemnify and
hold harmless BUYER, its parent, affiliates, and subsidiary companies,
coventurers, and directors, employees and agents of such companies against
any loss, damage, claim, suit, liability, judgment and expense (including
but not limited to attorneys’ fees and other costs of litigation), and any
fines, penalties, assessments, arising out of any claim of coverage or
eligibility under any of BUYER’S benefit plans, including without
limitation, benefits under any employee pension benefit plans or employee
welfare benefit plans, as defined under the Employee Retirement Act of
1974, as amended from time to time, or any fringe benefit plans or any
other benefits extended to employees of BUYER and/or its parent,
affiliates and subsidiary companies, which claim of coverage or
eligibility is made directly or indirectly by any of VENDOR’S employees,
subcontractors or agents.
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27. Statutory Employer provision
for Services performed in Louisiana.
BUYER and
VENDOR agree that while VENDOR and any of its employees, agents, or
subcontractors are performing Services under this Agreement in Louisiana such
work in whole or in part is a part of the trade, business or occupation of BUYER
and is an integral part of and essential to the ability of BUYER to generate its
goods, products, and services. BUYER or any of its subsidiaries or affiliates
involved in the Services performed hereunder in Louisiana shall be considered a
Statutory Employer within the meaning set forth in La. Rev. Stat. 23:1061 of
those employees, agents, and subcontractors of VENDOR performing Services
hereunder in Louisiana and such employees, agents, and subcontractors shall be
considered Statutory Employees as the meaning is set forth in La. Rev. Stat.
23:1061.
Execution
Copy
28. Labor Relations for Services
at BUYER’S Facilities.
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28.1
|
VENDOR
will promptly inform BUYER about any labor disputes, expected labor
disputes, or requests or demands from labor organizations that could
reasonably affect Services under this Agreement at BUYER’S facilities.
During negotiation, before making any commitments, VENDOR will advise
BUYER about agreements or understandings with local or national labor
organizations that could affect the
Services.
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28.2
|
BUYER
reserves the right to restrict VENDOR’S hiring more workers, and to
suspend or terminate work, in situations where a labor dispute may
adversely affect work
progress.
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29. Hazard
Communication.
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29.1
|
Both
VENDOR and BUYER agree to comply with the Occupational Safety and Health
Administration (“OSHA”) Hazard Communication Standard (“HCS”) - 29 CFR
1910.1200. The HCS requires employers to inform workers about the hazards
of workplace materials using a written hazard communication program,
labels, substance lists, Material Safety Data Sheets (“MSDS”),
information, and training. Both VENDOR and BUYER will also provide
appropriate health and safety information to those who handle, use, or may
be exposed to chemical
substances.
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29.2
|
VENDOR
will have an MSDS available at the job site for each chemical substance
provided to BUYER. If VENDOR leaves chemical substances in BUYER’S
possession, VENDOR will give BUYER’S representative at the location or
field office the most current
MSDS.
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29.3
|
VENDOR
will furnish only chemical substances listed in the Toxic Substances
Control Act (“TSCA”) Chemical Substance Inventory (maintained by the U.S.
Environmental Protection Agency). VENDOR will verify each chemical’s
inclusion on the TSCA Inventory by sending BUYER a letter or an MSDS. If a
chemical substance is not on the TSCA Inventory, VENDOR will immediately
notify BUYER.
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29.4
|
If
VENDOR deems a returned chemical substance unacceptable for credit, VENDOR
will segregate the returned chemical and immediately contact BUYER and
request BUYER to provide written instructions as to the handling of the
substance. VENDOR may never dispose of or sell these chemicals without
BUYER’S written permission.
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30. Substance Abuse Policy for
Service Conditions.
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30.1
|
Based
on the definitional criteria below, if all or part of the Services under
this Agreement is considered safety/environmentally sensitive, in addition
to standard requirements in Article 16, Drugs, Alcohol, and Firearms, in
this Agreement, VENDOR should have a complete substance abuse policy in
place and functioning. VENDOR’S policy should support BUYER’S objective to
ensure VENDOR’S personnel, working on BUYER’S premises or with BUYER’S
personnel, do not create a presence of substance abuse in the
workplace.
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30.2
|
A
safety/environmentally sensitive VENDOR is any contractor and/or its
subcontractors that provide one or more individuals to perform Services
for BUYER with job responsibility that meets these
criteria:
|
|
a)
|
Requires
exercise of independent action and results in direct and immediate
irreversible effects; and
|
|
b)
|
Creates
substantial risk of serious physical injury to fellow employees or the
general public, or significant environmental
damage.
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Execution
Copy
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30.3
|
If
VENDOR meets the requirements of a safety/environmentally sensitive
contractor based on the above criteria, VENDOR must have a comprehensive
substance abuse policy and practices that include these minimum
elements:
|
|
a)
|
Substance
abuse prohibitions
|
|
b)
|
Employee
notification
|
|
c)
|
Substance
abuse deterrence and
detection
|
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(1)
|
Testing
areas, substances, and cut-off levels at least comparable to BUYER’S (see
below)
|
|
(2)
|
Appropriate
rehabilitation and ensured fitness for duty before permitting employees
with identified substance abuse problems to return to work on BUYER’S
premises
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(3)
|
Searches
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30.4
|
Specifically,
VENDOR must perform testing with regard to all employees who do
safety/environmentally sensitive work, and their immediate supervisors, in
the areas below at the following 8-drug panel testing levels plus
alcohol.
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|
a)
|
Testing
Areas
|
|
(1)
|
Pre-employment |
|
(2)
|
For
cause
|
|
(3)
|
Post
rehabilitation/follow-up for four years after return to
work
|
|
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(4)
|
Random
|
|
|
b)
|
Testing
Cut-off Levels
|
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(1)
|
VENDOR
must test a urine sample for the following additional drugs at cut-off
levels no less stringent than those below. VENDOR should perform an
initial test via Enzyme Multiplied Immunoassay Technique (“EMIT”), and
where positive, follow up with a more precise test, Gas
Chromatography/Mass Spectrometry (“GC/MS”). The test should be considered
positive if there is a presence equal to or greater than the following
levels (“NG/ML”):
|
|
Drug
|
EMIT
|
GC/MS
|
|
Amphetamines
|
1,000
|
500
|
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Barbiturates
|
300
|
100
|
|
Benzodiazepines
|
300
|
100
|
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Cocaine
|
300
|
150
|
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Opiates
|
300
|
150
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THC
(cannabinoids marijuana)
|
20
|
10
|
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Methadone
|
300
|
100
|
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PCP
|
25
|
25
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VENDOR
should test for alcohol abuse, with results of 0.05 percent Blood Alcohol
Content considered positive.
Execution
Copy
33. Year ▇▇▇▇
▇▇▇▇▇▇▇▇.
|
33.1
|
VENDOR
represents and warrants that all Goods and Services provided hereunder
will be Year 2000 Compliant and, more specifically,
will:
|
|
a)
|
Function
without interruption or human intervention with four digit year processing
on any data, input, or output which includes an indication of date (“Date
Data”), including errors or interruptions from function which may involve
Date Data from more than one century or leap years regardless of the date
of processing or date of Date
Data;
|
|
b)
|
Provide
results from any operation accurately reflecting any Date Data used in the
operation performed, with output in any form, except graphics, having four
digit years;
|
|
c)
|
Accept
two digit year Date Data in a consistent manner that resolves any
ambiguities as to century in a defined manner;
and
|
|
d)
|
Provide
date interchange in the ISO 8601:1988 standard of
CCYYMMDD.
|
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33.2
|
If
any Goods or Services delivered hereunder are not as described in this
Article, Year 2000 Compliant replacements, or modifications shall be
performed by VENDOR at the cost of
VENDOR.
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34. Headings.
The
article headings in this Agreement are solely for convenience and shall not be
considered in its interpretation. Unless the context clearly indicates
otherwise, words used in the singular include the plural and words in the plural
include the singular.
35. Continuing
Obligations.
All
warranty, withholding and enforcement, liability, indemnity, intellectual
property, confidentiality, audit, and dispute resolution obligations and
responsibilities assumed by the parties during the term of this Agreement shall
survive the termination or expiration hereof.
36. Waiver.
Except as
expressly provided for, no waiver shall be deemed to have been made by either
party unless expressed in writing and signed by the waiving party. The failure
of either party to insist in any one or more instances upon strict performance
of any of the terms or provisions of this Agreement, or to any option or
election herein contained, shall not be construed as a waiver or relinquishment
for the future of such terms, provisions, option or election. No waiver by any
party of any one or more of its rights or remedies under this Agreement shall be
deemed to be a waiver of any prior or subsequent rights or remedies hereunder or
at law. All remedies afforded in this Agreement shall be taken and construed as
cumulative; that is, in addition to every other remedy available at law or in
equity.
37. Deliveries.
Unless
otherwise specified, all deliveries shall be in strict accordance with this
Agreement or any BUYER Release Documents. If delivery dates cannot be met,
VENDOR shall promptly inform BUYER in writing of any anticipated or actual
delay, the reasons for the delay and the actions being taken to overcome or to
minimize the delay. If BUYER does not approve alternate delivery dates, BUYER
shall have the right to cancel this Agreement without further liability,
purchase elsewhere, and hold VENDOR accountable for all direct damages resulting
from VENDOR’S failure to meet the original delivery dates. Upon delivery to
BUYER, VENDOR shall convey clear title to the Goods, free of any lien,
encumbrance or security interest.
Execution
Copy
When this
Agreement is applied to purchases in the United States for use outside the
United States in countries legally recognized by federal law, the BUYER will be
responsible for all additional direct costs for export. Indirect additional
costs will be negotiated on an individual basis. The parties will abide by all
applicable export control regulations of the United States Department of
Commerce and other agencies concerning the export or re-export of United States
source technical data or software, or the direct product thereof, to
unauthorized destinations.
38. Communications.
All
notices, requests, demands, and other communications to any party under this
Agreement shall be in writing (including facsimile or similar writing) and shall
be given to a party at the address or facsimile number specified for such party
below or such other address or number as such party shall at any time otherwise
specify by like notice to the other party. Each such notice, request, demand, or
other communication shall be effective (a) if given by facsimile, at the time
such facsimile is transmitted and the appropriate confirmation is received (or,
if such time is not during a business day, at the beginning of the next business
day); (b) if given by mail, five business days (or if to an address outside the
United States, ten calendar days) after such communication is deposited in the
United States mail with first-class postage prepaid; or (c) if given by any
other means, when delivered at the address pursuant hereto. The address and
facsimile number for each party for purpose of notice are:
|
To:
To:
|
BUYER
Attn:
Regional Security Advisor (Currently ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇)
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Lab wire, Inc
Attn:
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
281/797-6335
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39. Severability.
If any of
the provisions of this Agreement shall be invalid or unenforceable, such
invalidity or unenforceability shall not invalidate or render unenforceable the
entire Agreement, but rather the entire Agreement shall be construed as if not
containing the particular invalid or unenforceable provision or provisions, and
the rights and obligations of each party shall be construed and enforced
accordingly.
40. Exhibits To The
Agreement
Schedule
A - Scope of Work Schedule B - Price Schedule, Schedule C - Shell Voluntary
Principles on Security and Human Rights/ Use of Force Standards & Guidelines
Schedule D – Insurance
41. Entire
Agreement.
This
Agreement, its attachments and the BUYER Release Documents entered into
hereunder set forth the entire agreement between BUYER and VENDOR with respect
to the supply of the Goods and Services by VENDOR to BUYER from the Effective
Date and supersede and replace any other agreement or understanding in respect
of such subject matter whether in writing or otherwise, entered into or existing
prior to the Effective Date. Neither this Agreement nor any BUYER Release
Document hereunder shall be altered, amended or modified except in writing duly
signed by both parties.
42. Acceptance.
By
signing below, each party signifies that it has carefully examined and agrees to
be bound by all terms and conditions which are contained in this Agreement
(including all front pages, the Standard Terms and Conditions contained in
Articles 1 through 18 and the Additional Terms and Conditions contained in
Articles 19 through 42.
Authorized BUYER Representative
|
Signature:
|
//s//
▇▇▇▇ ▇▇▇▇▇
|
Date:
8/8/8-06
|
|
|
Name:
|
▇▇▇▇
▇ ▇▇▇▇▇
|
Title:
Head, US Corporate Security Services
|
|
|
Telephone:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
Authorized
VENDOR
|
Signature:
|
//s//
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
Date:
8-8-06
|
|
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
Title:
CEO
|
|
|
Telephone:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|