msa | Main Street Service

MASTER SUBCONTRACTOR AGREEMENT (MSA) v81721

This Master Subcontractor Agreement (this “Agreement”), by and between Main Street Service Group, LLC, a Michigan limited liability corporation, with a business address at 600 E. Hudson Ave. Royal Oak, MI 48067, Attn: Brandon Kolo (“MSSG”) and you (“Subcontractor”).

WHEREAS, MSSG and Subcontractor are entering into this Agreement to provide for the terms and conditions, which will apply to all projects with Subcontractor, in order to expedite the subcontracting process.

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions contained herein, the parties hereto, intending to be legally bound, do hereby covenant and agree as follows:

Approved Subcontractor. Upon execution of this Agreement and compliance with its terms, MSSG agrees that Subcontractor shall be added to MSSG’s list of approved subcontractors. Notwithstanding the foregoing, Subcontractor’s execution of this Agreement does not guarantee that Subcontractor will receive Work Orders (as defined in Section 2 below).

Work Orders. If at any time during the term of this Agreement, MSSG, either verbally or through one or more written work orders or other instruments, requests Subcontractor to supply or perform services, and Subcontractor agrees to perform those services, each such request, regardless of form, shall be deemed a “Work Order” governed by and subject to the terms and conditions of this Agreement. Each Work Order shall contain, without limitation: (i) a description of the services to be rendered by Subcontractor (the “Work”); (ii) the location of where the Work is to be performed (“Work Location”), and (iii) the bill rate and/or “do not exceed” rate for the Work. This Agreement and each Work Order, including all exhibits thereto, if any, are sometimes collectively referred to herein as the “Servicing Agreements”.

Scope. Subcontractor agrees to (i) furnish all necessary management, service, supervision, labor, equipment, supplies, materials and tools, (ii) obtain all insurance, permits and licenses, and (iii) furnish or obtain any other act or thing, required to diligently and fully perform and complete the Work in strict compliance with the Servicing Agreements and with applicable federal, state and local laws, rules and regulations. Subcontractor shall exert its best efforts, skill and judgment and shall exercise all due diligence to complete the Work in accordance with the highest standards of the industry and in the most expeditious, sound and economical manner. All Work shall be performed to the satisfaction of MSSG and MSSG’s client on whose behalf the Work was performed (each such client is referred to herein as “MSSG’s Client”). Subcontractor’s duties shall not be diminished at any time or in any way by reason of any approval or payment by MSSG for all or any portion of the Work, nor shall Subcontractor be released of any liability by reason of such approval or payment by MSSG.

Subcontractor’s sole and exclusive responsibility for the performance of this Agreement and any Work Order is to MSSG, and it is agreed that all of Subcontractor’s dealings with MSSG’s Clients shall be through MSSG. In the event a change in a Work Order is made by MSSG’s Client directly to Subcontractor, Subcontractor shall promptly notify MSSG of such change prior to commencement of the Work. No extra or additional work or change orders will be paid for by MSSG unless agreed to by MSSG in advance of performance of the Work.

Payment. MSSG shall pay Subcontractor for the Work performed pursuant to a Work Order at the rate specified in the applicable Work Order. In order to receive payment hereunder, Subcontractor shall furnish MSSG with an itemized invoice of all charges incurred in connection with the applicable Work Order. Subcontractor shall bill MSSG in a timely manner so that an invoice is received by MSSG no later than thirty (30) days after the Work is completed pursuant to the applicable Work Order. If requested,

Subcontractor shall include with the invoice (i) documentation that will substantiate all charges on the invoice and (ii) lien waivers from Subcontractor and Subcontractor’s consultants, subcontractors and suppliers, or anyone directly or indirectly employed by them, or anyone for whose acts Subcontractor may be responsible or liable in connection with the Work (“Subcontractor Consultant”). MSSG shall pay all timely and undisputed invoices within thirty (30) days from the date of receipt by MSSG of the invoice. Notwithstanding the foregoing, MSSG may withhold payment for Work performed that is in breach of this Agreement or the applicable Work Order and that is not remedied by Subcontractor, including without limitation, MSSG may withhold payment for Work performed if Subcontractor fails to provide MSSG with Certificates of Insurance, as evidence of the insurance required by Section 8 of this Agreement, including the waiver of subrogation and additional insured endorsements set forth in clauses (i), (ii) and (iii) of Section 8 of this Agreement.

In the event that Subcontractor’s undisputed invoice should be furnished to MSSG later than ninety (90) days after completion of the Work, then MSSG shall not be obligated to pay any amounts due on such invoice and MSSG’s account shall be considered as paid in full to the complete satisfaction of such invoice. MSSG shall close out any open work order at $0.00 (non-negotiable) for any undisputed work orders that remain outstanding ninety (90) days after project completion.

Term. The term of this Agreement shall commence on the date hereof and shall remain in effect on a year to year basis until either party terminates this Agreement at any time, for any reason, or no reason, upon fifteen (15) days prior written notice to the other party, unless earlier terminated by MSSG as provided in this Agreement. Termination of this Agreement shall not relieve Subcontractor of its obligations or liabilities hereunder or under any Work Order, including without limitation, unless MSSG determines otherwise, upon termination of this Agreement, Subcontractor shall continue to complete the Work on an existing Work Order in accordance with the terms and provisions of this Agreement. Notwithstanding the foregoing, in the event Subcontractor fails to produce acceptable work under the terms of this Agreement or any Work Order, causes delays in the performance of the Work, fails to follow industry standards, fails to carry proper insurance as provided herein, fails to comply with any terms in this Agreement or becomes insolvent or files for bankruptcy protection, MSSG may terminate this Agreement and/or any Work Order issued hereunder immediately without prior notice. The termination or expiration of this Agreement and/or any Work Order shall not affect any continuing obligation or liability of Subcontractor which would otherwise survive termination of this Agreement, including without limitation, Sections 11, 12, 14 and 15 of this Agreement.

Defect Liability. All materials, fixtures and equipment furnished by Subcontractor in connection with the Work shall be merchantable, free of fault and defect, of good workmanship and quality and fit for any particular purpose for which such materials, fixtures and equipment are required. Subcontractor, at its sole cost and expense (including all parts and labor), shall repair, correct and remedy any defect or deficiency in workmanship (excluding damages or defects caused by normal wear and tear) and shall replace any defective materials, fixtures or equipment used, installed or placed in or upon the Work Location within one (1) year after such Work has been completed, or in the case of a latent defect, within one (1) year of discovery of such defect, provided that MSSG provides Subcontractor written notice of any such defect or deficiency. Subcontractor shall, within forty-eight (48) hours of receipt of notice of such defects, repair or correct any defects discovered by MSSG at Subcontractor’s sole cost and expense, provided that MSSG gives Subcontractor written notice of any such defect within one (1) year after such Work has been completed, or in the case of latent defects, within one (1) year of discovery of such defect. Subcontractor shall be liable for any injury or damage caused to the Work Location or any persons or property thereon by Subcontractor or any Subcontractor Consultant in the performance of the Work. Subcontractor shall indemnify and hold MSSG harmless from any loss, cost, damage, liability or other expense whatsoever that MSSG may suffer or incur as the result of a failure of materials, fixtures, equipment and workmanship within the warranty period. Subcontractor's warranty shall extend to and cover all labor and materials, fixtures and equipment furnished by any Subcontractor Consultant and Subcontractor shall be liable and responsible to MSSG in all respects for the Work of any Subcontractor Consultant.

Compliance. Subcontractor shall comply fully with all laws, orders, citations, rules, regulations, standards and statutes affecting or relating to this Agreement and all Work Orders or the performance thereof, including but not limited to those with respect to occupational health and safety, the handling and storage of hazardous materials, accident and illness prevention, safety equipment and practices, employee eligibility to work in the United States, minimum wage and overtime wages and compliance with all applicable environmental rules and regulations. Subcontractor shall timely pay all taxes, unemployment compensation, permits, fees and licenses required in connection with the Work and/or as required by law.

Insurance. At all times during the term of this Agreement and any Work Order, Subcontractor shall, at its sole cost and expense, maintain, and shall cause its subcontractors to maintain, insurance of the following types of coverage and minimum limits of liability as set forth below, with insurers licensed to do business in the state(s) in which the Work Location(s) is (are) located and having a financial rating of at least "A" and a general policyholder's rating of not less than "A" as rated in the most current "Best" Insurance Reports. None of the requirements contained herein as to types, limits or MSSG's approval of insurance coverage to be maintained by Subcontractor is intended to and shall not in any manner limit, qualify or quantify the liabilities and obligations assumed by Subcontractor under this Agreement, any Work Order or otherwise provided by law.

Comprehensive General Liability or Commercial General Liability insurance covering all operations by or on behalf of Subcontractor providing insurance for bodily injury liability and property damage liability for the limits of liability indicated below and including coverage for premises and operations, products and completed operations and contractual liability insuring the obligations assumed by Subcontractor in this Agreement:

Bodily Injury: $1,000,000 Each Person & Each Occurrence
Property Damage: $1,000,000 Each Occurrence
Aggregate coverage: $2,000,000

Comprehensive Automobile Liability as follows:

Bodily Injury: $1,000,000 Each Person & Each Occurrence
Property Damage: $1,000,000 Each Occurrence

Workers’ Compensation: $500,000 or the State statutory set limit.

The foregoing insurance policies shall include (i) a waiver of subrogation in favor of MSSG, (ii) coverage for MSSG as an additional insured in conjunction with Insurance Service Office (ISO) Additional Insured Form CG2037 or an equivalent form that provides additional insured status for products and completed operations, and (iii) MSSG as an additional insured on a primary and noncontributory basis and such policies shall be the primary coverage without the right of contribution from any other insurance maintained by MSSG. Subcontractor will also name MSSG’s Client as an additional insured and shall include the foregoing clauses (i), (ii) and (iii) herein, if MSSG’s Client requires the same. Certificates of insurance, as evidence of the insurance required by this Agreement, including the waiver of subrogation and additional insured endorsements set forth in clauses (i), (ii) and (iii) above, shall be furnished by Subcontractor to MSSG before any Work hereunder is commenced by Subcontractor. These certificates and the insurance policies required hereunder shall contain a provision that coverage afforded under the policies will not be reduced, canceled or allowed to expire until at least thirty (30) days prior written notice has been given to MSSG. Subcontractor shall require that any and all of its subcontractors shall maintain insurance in like form and amounts including the additional insured endorsements naming MSSG and MSSG’s Client, if required, and shall submit satisfactory evidence to that effect to MSSG.

Subcontractor hereby releases, and shall cause its insurers to release, MSSG and the other Indemnified Parties (as defined in Section 14 hereof) from any and all claims or causes of action whatsoever which Subcontractor and its insurers might otherwise possess resulting in or from or in any way connected with any loss covered or which should have been covered by insurance, including the deductible portion thereof, maintained and/or required to be maintained by Subcontractor pursuant to this Agreement.

The products liability and completed operations coverage provided for in the Commercial General Liability policy shall be maintained by Subcontractor for a minimum of three (3) years following completion of the Work provided under this Agreement and all Work Orders.

Waiver of Lien. Subcontractor does hereby waive the right to hold, claim, assert, file or enforce any mechanic's lien or any lien rights whatsoever against any Work Location or the buildings and improvements located thereon, or the real estate upon which the Work Location is located. Subcontractor shall not cause, suffer or permit any mechanic's liens or material man’s liens arising out of the Work to be filed against any Work Location or any buildings or improvements thereon or the real estate upon which it is located, and Subcontractor shall indemnify and hold MSSG and the buildings, improvements and real estate, harmless from any such liens for labor and materials. In addition to any other remedies available to MSSG, which are hereby expressly reserved, in the event any lien or claim is filed by anyone claiming by, through or under Subcontractor, Subcontractor shall remove and discharge such lien within ten (10) days of the filing thereof, and MSSG may deduct from, and offset against, any sums owing to Subcontractor an amount sufficient to satisfy any such claims. If Subcontractor fails to settle such lien or claim to MSSG’s satisfaction (including the recording of a full release if a lien has been recorded) within ten (10) days after written notice from MSSG, then MSSG may, at its option, settle such lien or claim directly with the holder thereof and deduct all costs and expenses associated with such settlement from amounts due to Subcontractor hereunder.

Independent Contractor. Subcontractor shall perform under the Servicing Agreements as an independent contractor and not as an employee or agent of MSSG. Subcontractor is not authorized to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, MSSG or to bind MSSG in any manner. Subcontractor shall be responsible for payment of all taxes on its income or activities, and MSSG shall not withhold any federal, provincial, state, or local payroll or employment taxes from any fees or other amounts payable under the Servicing Agreements.
Non-Exclusivity. It is expressly agreed and understood between the parties hereto that: (i) this engagement is nonexclusive; (ii) nothing in the Servicing Agreements will in any way restrict MSSG's right to engage others to render the same or similar services; and (iii) subject to Section 12 of this Agreement, nothing in the Servicing Agreements will in any way restrict Subcontractor’s right to render the same or similar services to or for the benefit of any third parties.
Non-Solicitation. Subcontractor agrees that during the term of this Agreement and any Work Order and for a period of twelve (12) months following the last date of service provided by Subcontractor under a Work Order, Subcontractor will not, and Subcontractor will cause Subcontractor Consultants not to, directly or indirectly, through their respective affiliates, another person or otherwise, induce or attempt to induce any client, including without limitation MSSG’s Client, or business relation of MSSG to cease doing business with MSSG, or in any way interfere with the relationship between MSSG and any such client or business relation.
Damages for Default. If Subcontractor should default in performance of the Work or should otherwise commit any act which causes delay to the Work to be performed pursuant to a Work Order, Subcontractor shall be liable for all losses, costs, expenses, liabilities and damages, including consequential damages and liquidated damages, sustained by MSSG, or for which MSSG may be liable to MSSG’s Client or

any other party because of Subcontractor’s default. Subcontractor further agrees that neither the payment of such damages nor any liability incurred for the payment of such damages shall release Subcontractor from its obligation to otherwise fully perform under this Agreement and the applicable Work Order.

Indemnification. Subcontractor agrees that in consideration for any and all Work Orders entered into with MSSG, to the fullest extent permitted by law, Subcontractor shall indemnify, defend and hold harmless MSSG, its subsidiaries and affiliates and MSSG’s Client and each of their respective officers, directors, agents, shareholders, successors and employees (individually, each an "Indemnified Party" and collectively, the "Indemnified Parties") from and against any and all claims, liability, damages, losses, causes of action, costs and expenses (including without limitation attorneys' fees, consultants' fees and court costs) arising out of, relating to or resulting from, or alleged to arise out of, relate to or result from (i) the acts or omission of Subcontractor in carrying out the terms of, or any breach of, this Agreement or any Work Order,

(ii) the act, error, omission or performance or non-performance by Subcontractor or any Subcontractor Consultant in connection with the Work, or (iii) the underpayment, nonpayment or discrepancies in payment made by any Subcontractor Consultant in connection with any Work (hereinafter, clauses (i), (ii) and (iii), singularly and collectively, are referred to as "Indemnity Claims"), regardless of whether the Indemnity Claims are caused by the joint or concurrent negligence or omission, whether active or passive, of any Indemnified Party. Subcontractor, at Subcontractor's sole expense, shall promptly dispose of Indemnity Claims, defend all lawsuits and similar proceedings filed against an Indemnified Party on the account of Indemnity Claims, pay all awards and judgments rendered against an Indemnified Party in connection therewith, and reimburse each Indemnified Party for all reasonable expenses incurred by such Indemnified Party in connection with Indemnity Claims and lawsuits and similar proceedings including, but not limited to, attorneys' fees, expert witness fees, court costs, arbitration costs and all other reasonable costs and expenses (not limited to statutory costs). Subcontractor’s indemnity hereunder shall be without regard to and without any right to contribution from any insurance maintained by MSSG.

Confidential Information. At all times during and after the term of this Agreement and any Work Order, Subcontractor shall, and Subcontractor shall cause Subcontractor Consultants to, preserve in strict confidence all confidential or proprietary information in any form or documents relating to the business, assets or affairs of MSSG, whether or not labeled confidential, revealed, disclosed or furnished to Subcontractor before or after the date hereof by MSSG, either orally, in writing or by inspection, including, without limitation, any client data (including, without limitation, client’s name, business, plans, finances and methods of operation), competitive information, financial information, pricing, business structure, business plans, operations, subcontractors, suppliers and vendors and the terms of the Servicing Agreements (“Confidential Information”). Subcontractor shall not make any use of Confidential Information for its own purposes or for the benefit of any third party. Confidential Information shall not include information that (i) is independently developed by Subcontractor without use of or reference to any Confidential Information as evidenced by appropriate written documentation, (ii) Subcontractor acquired the information prior to disclosure by MSSG from a third party having the legal right to furnish same and not otherwise bound by confidentiality undertakings as evidenced by appropriate written documentation, and (iii) at the time in question, is generally known by or available to the public through no fault of Subcontractor or any Subcontractor Consultant.

Non-Assignment. Neither this Agreement nor any Work Order, in whole or in part, can be assigned or subcontracted by Subcontractor to another party without the prior written consent of MSSG. Any assignment consented to by MSSG shall not operate to relieve Subcontractor of its primary responsibility to MSSG for the due and full performance of the Work.

Notices. All notices, amendments, waivers or other communications pursuant to any Servicing Agreement shall be in writing and shall be deemed to have been duly given if personally delivered, sent by e-mail, sent by facsimile, sent by nationally recognized overnight courier or mailed by registered or

certified mail with postage prepaid, return receipt requested, to the party at the address set forth in the preamble of this Agreement, unless otherwise provided by such party pursuant to this Section 17:

Attorneys’ Fees. Subcontractor shall pay reasonable attorney’s fees, cost and expenses incurred by MSSG for arbitration or any litigation involving disputes arising out of, or relating to, this Agreement or any Work Order, or any breach hereof or thereof, provided MSSG prevails on Subcontractor’s claims against MSSG and/or on MSSG’s claims against Subcontractor. Notwithstanding the foregoing, in the event a party is required to retain counsel to enforce any settlement agreement as a result of mediation or a judgment awarded such party by the arbitrator, then the other party shall be responsible for the reasonable attorney fees, costs and expenses incurred by such party in enforcing the same.

Mediation/Arbitration. If a dispute arises out of, or relates to, this Agreement or any Work Order, or any breach hereof or thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by non-binding mediation administered by the American Arbitration Association under its Commercial Mediation Procedures in effect at the time as a condition precedent to arbitration. A request for mediation shall be made in writing and delivered to the other party and filed with the American Arbitration Association. The parties shall share the mediator’s fees and any filing fees equally. The mediation shall be held in the County of Oakland, State of Michigan. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. Any court action outside of mediation shall only take place in the County of Oakland, State of Michigan.

If within thirty (30) days after service of a written demand for mediation by either party, the mediation does not result in a settlement of the dispute, then any unresolved disputes arising out of, or relating to, this Agreement or any Work Order, or any breach hereof or thereof, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in effect at the time, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, MSSG shall be entitled to seek injunctive relief in any court of competent jurisdiction to prevent any violation of this Agreement by Subcontractor. A demand for arbitration shall be made in writing and delivered to the other party and filed with the American Arbitration Association. The arbitrator shall award attorneys’ fees and other costs incurred by MSSG in accordance with Section 18 of this Agreement. The arbitration shall take place in the County of Oakland, State of Michigan.

Miscellaneous.

No amendment or waiver of any provision of any Servicing Agreement, or consent to any departure by any party hereto from any such provision, shall be effective unless the same shall be agreed in writing by each of the parties hereto. Any amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. The waiver by any party of any breach of this Agreement or any Work Order shall not operate as or be construed to be a waiver by such party of any subsequent breach. No failure by either party at any time to give notice of any breach by the other party of or to require compliance with, any condition or provision of this Agreement shall be deemed a waiver. The failure of a party to insist upon strict adherence to any term or provision of this Agreement, or to object to any failure to comply with any term or provision of this Agreement, shall not be a waiver of that term or provision, stop that party from enforcing that term or provision, or preclude that party from enforcing that term or provision by estoppel or by laches. The receipt by a party of any benefit from this Agreement shall neither constitute such party's waiver nor effect an estoppel on the right of that party to enforce any provision hereof.

This Agreement, together with each Work Order, shall constitute the entire agreement among the parties with respect to the subject matter hereof, and shall supersede all oral and written negotiations, commitments, agreements and understandings relating thereto.
This Agreement and any Work Order shall be governed by and construed in accordance with the laws of the state of Michigan without regard to conflicts of laws principles.

Each of the Servicing Agreements shall inure to the benefit of, and be binding upon, Subcontractor, MSSG and their respective heirs, administrators, executors, successors and permitted assigns.

Any provision of this Agreement or any Work Order which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or thereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

Unless otherwise agreed in writing by the parties, in the event of any conflict or inconsistency between the terms and conditions of this Agreement and any terms or conditions set forth in a Work Order, the terms and conditions of this Agreement will prevail.

The captions of the sections of this Agreement or any Work Order are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement or any Work Order, as the case may be.
This Agreement may be executed by one or more parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.

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MASTER SUBCONTRACTOR AGREEMENT (MSA) v81721

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Miscellaneous.