You (“Vendor”) have requested that Decron Properties Corp. (“Decron”) consider purchase, retention, or engagement of Vendor’s products or services.
1. SCOPE OF SERVICES. During the term of this Master Agreement for Performance of Work (this “Agreement”), Vendor shall perform services in accordance with one or more purchase orders issued by Decron to Vendor (each such approved purchase order generated by Decron, a “Purchase Order”). Vendor acknowledges that no proposal for services submitted to Decron shall be binding on Decron, and that only a Purchase Order shall constitute Decron’s request for services as specified in such Purchase Order.
Vendor acknowledges and agrees that: (i) in executing and entering into this Agreement, Decron is acting as property manager of various properties, which may in certain instances be owned, in whole or in part, directly or indirectly, by affiliates of Decron, and (ii) the Services (as defined below) to be performed by Vendor in connection with this Agreement will be performed for Decron in its role as property manager, and no owner of properties served in connection with this Agreement shall be bound hereby.
(a) Fees and Expenses. In consideration for the services to be provided by Vendor pursuant to one or more Purchase Orders under Section 1 hereof (such services under one or more Purchase Orders, the “Services”), Vendor shall be compensated for such Services in such amounts, and at such times, as are described on the applicable Purchase Order(s). Decron agrees, subject to the provisions of Section 2(b) below and subject to its right to terminate this Agreement pursuant to Section 4 below, to compensate Vendor in accordance with the foregoing, no more than sixty (60) days following receipt of an invoice issued in accordance with the applicable Purchase Order. Reasonable business efforts will be made to process payments within thirty (30) days.
(b) Invoicing and Payment. Decron shall pay the agreed fees in accordance with the foregoing when all necessary work is completed, inspected and approved by Decron and Vendor invoices Decron for same; provided, however, that in the event Decron, in good faith, disputes the accuracy of any invoice or any other matters in connection with any of the Services, payment for the portion which is disputed by Decron may be withheld until such dispute is resolved.
(c) Exceeding Cost Estimate. The parties agree that Vendor’s fee to perform any of the Services shall not to exceed the estimate provided in the applicable Purchase Order, without Decron’s prior written approval by Decron’s Chief Operating Office or in the form of an approved Change Order Purchase Order, in its sole discretion. Furthermore, Vendor shall not be entitled to reimbursement for any expenses of Vendor in connection with this Agreement or any of the Services without Decron’s prior written approval, in its sole discretion.
3. TERM. Time is of the essence in performing the work set forth in this Agreement. Accordingly, this Agreement shall be effective from the date of Vendor’s commencement of the Services, or the execution of this Agreement, whichever occurs first, and shall continue in full force and effect until terminated pursuant to Section 4 hereof.
(a) Termination by Decron. Decron shall have the right, at any time and for any reason (with or without cause), to terminate this Agreement without penalty, and without prejudice to any other rights or remedies that Decron may have, upon delivery of written notice of such termination to Vendor. Upon receipt of such notice, Vendor shall discontinue its performance of the Services as promptly as is reasonably possible and shall not incur hereunder, or bill Decron for, further charges. Unless Vendor is in breach of this Agreement, Decron shall remain obligated to compensate Vendor for then-outstanding sums for Services performed in accordance with this Agreement prior to the date of termination. If Decron has not issued a Purchase Order to Vendor for a period of three (3) years, this Agreement shall automatically terminate.
(b) Termination by Vendor. In the event that Services under any open Purchase Order remain unfinished, Vendor shall have the right to terminate this Agreement without penalty upon not less than thirty (30) days’ advance written notice to Decron, solely in the event that Decron shall fail to make any payments to Vendor when due in accordance with the terms of this Agreement, subject, however, to Decron’s right to contest or dispute payment in accordance with the terms of this Agreement. Decron’s payment of any such outstanding sums shall negate Vendor’s ability to terminate in accordance with the foregoing. If all Services under all Purchase Orders shall have been completed to the satisfaction of Decron, then Vendor shall have the right to terminate this Agreement upon not less than thirty (30) days’ advance written notice to Decron.
5. CONFIDENTIALITY. Vendor shall not disclose to any third party any information received or gained in the performance of the Services or any of the documents or information which it receives from Decron, except as may be required by law (provided Vendor shall give notice to Decron prior to disclosing any information required to be disclosed by law). The requirements of this Section 5 shall survive the termination of this Agreement.
6. WARRANTY OF PERFORMANCE. Vendor will provide the Services and deliverables in accordance with no less than the standards of care, diligence and professionalism, and the levels of skill, knowledge and judgment normally practiced by nationally recognized businesses performing services of a similar nature. All such Services and deliverables shall be provided with such warranties as are customarily provided by nationally recognized businesses performing services of a similar nature.
(a) Indemnification by Vendor. Vendor shall indemnify, defend and hold harmless (i) Decron, (ii) Decron’s affiliates and subsidiaries, (iii) any property owners who own property for which Services are performed, and (iv) the employees, directors, officers, shareholders, members, representatives and agents of all of the foregoing (collectively, the “Decron Indemnitees”), from and against all liability, claims, suits, losses, damages, costs and demands arising at any time out of or in connection with (I) Vendor’s performance of Services and any other services under this Agreement, (II) Vendor’s breach of any of the provisions of this Agreement, (III) Vendor’s, or its officers’, employees’, agents’ or representatives’ gross negligence or willful misconduct, (IV) the violation of any applicable law, rule, regulation, order or other requirements of any governmental or quasi-governmental authority relating to the Services or this Agreement, (V) bodily injury or death of any person or damage to real or tangible personal property caused, directly or indirectly, by Vendor or its employees, officers, agents or representatives, (VI) any workers’ compensation claims that are made by the employees or contractors of Vendor, or (VII) otherwise in connection with this Agreement.
(b) Indemnification by Decron. Decron shall indemnify, defend and hold harmless Vendor and its employees, directors, officers, shareholders, members, representatives and agents, from and against all liability, claims, suits, losses, damages, costs and demands relating to Decron’s performance of its obligations under this Agreement, to the extent caused by the gross negligence or willful misconduct of Decron.
(c) The terms of this Section 7 shall survive the termination of this Agreement.
8. INSURANCE. Insurance described in this Section 8 shall be maintained during the term of the Agreement and until the end of any applicable periods during which Decron, any Decron Indemnitees, or any person or entity claiming by or through Decron or any Decron Indemnitees could suffer losses, damages, costs, liabilities or otherwise bring a claim in connection with the Services, this Agreement or any applicable insurance policies. Vendor shall maintain insurance in the following amounts:
(i) Professional errors and omissions liability insurance, including contractual and prior acts sufficient to cover the Services provided under this Agreement, with a limit of no less than $1,000,000 and a deductible amount not to exceed $25,000, if required by law or commercially standard for the vendor’s industry,
(ii) Commercial general liability insurance covering bodily injury and property damage, with a limit of no less than $1,000,000 per occurrence and $2,000,000 in the aggregate,
(iii) Automobile liability insurance covering bodily injury and property damage, with a limit of no less than $1,000,000 per occurrence and $1,000,000 in the aggregate,
(iv) Worker’s compensation insurance in the amount or amounts required by applicable law, and
(v) Such other insurance as is reasonable required by Decron from time to time.
All such insurance policies shall name as additional insureds all Decron Indemnitees and any other parties reasonably requested by Decron from time to time.
Upon the request of Decron, Vendor shall provide certificates of insurance evidencing such insurance coverage.
The requirements of this Section 8 shall survive the termination of this Agreement.
9. INDEPENDENT CONTRACTOR. Nothing in this Agreement shall in any way be construed to constitute Vendor as an agent, employee, or representative of Decron. Vendor will have no authority to enter into contracts that bind Decron or create obligations on the part of Decron without the express prior written authorization of Decron. Instead, Vendor’s relationship with Decron will be that of an independent contractor performing the Services. To the extent applicable, Vendor agrees to furnish (or reimburse Decron for) all tools and materials necessary to accomplish the Services, and shall incur all expenses associated with such performance. Vendor will not be eligible for any employee benefits, nor will Decron make deductions from payments made to Vendor for taxes. Vendor acknowledges and agrees that Vendor is obligated to report as income all consideration that Vendor receives under this Agreement, and Vendor acknowledges and agrees to pay all self-employment and other taxes thereon. Vendor further agrees to indemnify Decron and all Decron Indemnitees and hold them harmless to the extent of any obligation imposed on Decron or any Decron Indemnitees to pay withholding taxes or similar items or resulting from Vendor’s being determined not to be an independent contractor. The foregoing indemnity shall survive the termination of this Agreement.
10. NOTICES. Any and all notices, demands or other communications required or desired to be given hereunder by any party shall be in writing and shall be validly given or made to the other party when served personally or when deposited in the United States mail, certified or registered, postage prepaid, return receipt requested or when delivered via reputable overnight courier service (such as UPS or FedEx). If such notice, demand or other communication is served personally, service shall be conclusively deemed made at the time of such personal service. If such notice, demand, or other communication is given by mail, service shall be conclusively deemed given five (5) business days after the deposit thereof in the United States mail, addressed to the party to whom such notice, demand or other communication is given, as hereinafter set forth below. If such notice, demand, or other communication is given by such reputable overnight courier service, service shall be conclusively deemed given the business day after it is sent with such service, addressed to the party to whom such notice, demand or other communication is given, as hereinafter set forth below.
To Decron: Zev Nagel
Decron Properties Corp
6222 Wilshire Boulevard, Suite 400
Los Angeles, CA 90048
T 328 556-6600
With Copy to Tom Schiff, General Counsel, at same address
To Vendor: At Place of Business identified in the Vendor Information field in Vendor Café.
11. SEVERABILITY. If any provision contained in this Agreement is held to be unenforceable by a court of competent jurisdiction, this Agreement shall be construed as if such provision did not exist, and the unenforceability of such provision shall not be held to render any other provision of this Agreement unenforceable.
12. SUCCESSORS AND ASSIGNS. The covenants and agreements contained herein shall apply to and inure to the benefit of and be binding upon the parties hereto and upon their respective permitted successors and assigns. Vendor may not delegate, assign, sublet or transfer its duties or interest in this Agreement without the prior written consent of Decron, which may be withheld by Decron in its sole discretion. Decron’s interest in this Agreement may be wholly or partially assigned or transferred to any other party, without any consent of, or notice to, Vendor. In the event Decron shall assign this Agreement, or any portion thereof, Decron shall no longer have any liability or obligation in connection with this Agreement, or such portion thereof that was assigned.
13. ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with any exhibits hereto (if any), constitutes the entire agreement among the parties hereto with respect to the subject matter hereof. All previous agreements or understandings with respect to the subject matter hereof, whether written or oral, are superseded and voided hereby. No amendment or modification of this Agreement shall be valid unless it shall be in writing and signed by both of the parties hereto, as identified in Section 2(c) above.
14. WAIVER. The failure of either Decron or Vendor to require the performance of any provision of this Agreement shall in no way affect the respective rights of Decron or Vendor to enforce such provision, nor shall the waiver by Decron or Vendor of any breach of any provision be construed to be a waiver of any succeeding breach or as a waiver or modification of such provision.
15. GOVERNING LAW: DISPUTE RESOLUTION. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of California. Any dispute, controversy or claim arising out of or relating to this Agreement (other than any claims for injunctive or equitable relief), including, but not limited to, the interpretation, breach or termination hereof, shall first be referred to mediation by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) and, in the event such mediation is unsuccessful, such dispute shall then be referred to and finally determined by arbitration in accordance with the JAMS Arbitration Rules. The tribunal will consist of a sole arbitrator selected in accordance with the JAMS Arbitration Rules. The place of arbitration shall be Los Angeles, California. The arbitrator will be instructed to prepare and deliver a written, reasoned opinion stating such arbitrator’s decision within thirty (30) days of the completion of the arbitration. The arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator. The decision of the arbitrator shall be final and non appealable. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof.
16. VENDOR CAFÉ. Decron utilizes the Vendor Café platform (“Vendor Café”) created by Yardi Systems, Inc. (“Yardi”) for the expeditious issuance of Purchase Orders and invoicing. Any and all license fees due and payable to Yardi are the responsibility of Vendor. Decron takes no responsibility for errors or omissions caused by Vendor Café. It is Vendor’s responsibility to manage its contact and remittance information in Vendor Café, as well as to update all required compliance documentation, including, but not limited to, W-9s and other IRS forms and insurance certificates and related documentation. Vendor hereby expressly releases and forever discharges Decron and the Decron Indemnitees from any and all claims, debts, damages, liabilities, losses, demands, obligations, costs, expenses, disputes, actions, and causes of action which Vendor has, or may have, or ever had, or in the future may have which in any way relates to or arises out Vendor’s use of Vendor Cafe. Vendor agrees to release, indemnify and hold harmless Decron and the Decron Indemnitees from any damage, claim, or loss arising out of Vendor’s inaccurate statement or choice of industry code and/or identified location of operation. The foregoing releases and indemnities shall survive the termination of this Agreement.
17. LIMITATION OF LIABILITY. (i) Decron’s liability to Vendor under this Agreement (including, without limitation, with respect to any indemnification obligations hereunder) shall be limited to the total amount of then-unpaid fees for Services that would be payable by Decron to Vendor under any then-outstanding open Purchase Orders at the time any liability arises. In no event shall any affiliate of Decron, including, without limitation, any owner(s) of real property at which any Services are performed, be liable, or incur any obligations, hereunder or otherwise in connection with the matters described herein. In addition to the foregoing, and for the avoidance of doubt, no members, officers, shareholders, directors, employees, agents or representatives of Decron or of any affiliate of Decron (including, without limitation, any owner(s) of real property at which any Services are performed) shall have any personal liability hereunder or in connection with this Agreement or the Services. Vendor shall look solely to Decron in connection with this Agreement and not to the assets of any other person or entity.
(ii) In no event shall either party be liable to the other party for any consequential, special, indirect, or punitive damages (including, but not limited to, lost profits), regardless of whether such liability is based on breach of contract, tort, strict liability, breach of warranties, failure of essential purpose or otherwise.
(iii) This Section 17 shall survive the termination of this Agreement.
18. ATTORNEYS’ FEES. In any court or arbitration proceeding brought by one party hereto against the other to enforce or interpret the terms of this Agreement, or to resolve any dispute concerning any part of the Services, the party prevailing in such proceeding shall be entitled, in addition to such other relief as the court may grant, to an award of its legal costs, including the reasonable fees and disbursements of its attorneys. This Section 18 shall survive the termination of this Agreement.
19. COMPLIANCE WITH LAWS. Vendor agrees to comply with all laws, ordinances, statutes, codes, rules, regulations, orders, interpretations and decrees of governmental or quasi-governmental authorities in connection with the Services and this Agreement.