S2 Terms & Conditions

Construction – Terms & Conditions

Construction – Terms & Conditions

Last Updated: Feb 6, 2025

Between Contractor and Subcontractor 

This Master Subcontract Agreement is entered into by and between S2 Construction Company, LLC, as Contractor, and you, as Subcontractor, with the intent and understanding that it will serve as a master agreement applying to and governing all projects for which Contractor engages Subcontractor. This Agreement sets forth the terms and conditions under which Subcontractor will provide construction services to Contractor when requested by Contractor. For each specific Project on which Contractor engages Subcontractor, a Purchase Order shall be executed, which the parties agree shall and hereby does incorporate this Agreement by reference, and shall contain additional terms and conditions governing Subcontractor.

This Agreement has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification.

ARTICLE 1

MASTER AGREEMENT AND PURCHASE ORDERS

  1. EFFECTIVE DATE. This Master Subcontract Agreement (“Agreement”) shall be effective for one year after the date Subcontractor clicks “Accept” in the supplier portal during the vendor registration process acknowledging its acceptance to the terms and conditions of, and its agreement to be bound by, this Agreement (“Date of this Master Agreement.”) This Agreement will automatically renew for one-year terms, unless either party provides notice of their intent not to renew. Notice must be provided at least 30 days prior to the renewal date. In the event either party elects not to renew, the terms of this Master Agreement shall remain applicable until all Purchase Orders under this Master Agreement are completed or terminated.
  2. PURCHASE ORDERS. This Master Agreement shall apply to all Purchase Orders agreed to by the parties within the terms of this Agreement until completion of the Purchase Order. In the event of a conflict between terms and conditions of this Agreement and a Purchase Order, the terms of the Purchase Order shall take precedence for the Work provided pursuant to the Purchase Order.
  1. Subcontractor is required to use the Purchase Order system for all transactions to ensure accuracy and efficiency in order processing. By adhering to the Purchase Order system, Subcontractor can help prevent discrepancies and ensure timely payments. Subcontractor must reference the appropriate Purchase Order number on all related documents, including, without limitation, invoices and delivery notes. Compliance with this process is vital for maintaining an organized and effective procurement workflow, benefiting both parties through improved clarity and accountability. Subcontractor understands, acknowledges, and agrees that it is not authorized to perform and is prohibited from performing Work without first obtaining a Purchase Order. Any changes to the scope or cost of Work performed must be approved by Contractor in writing prior to the performance of such additional and/or changed Work. In the event Contractor and Subcontractor agree to additional Work, a reduction in Work, or a change to the cost of Work, such agreement shall be included on a Change Order stipulating the change in Work and fees. Payment of any invoice is not evidence of Contractor’s acceptance of the Work as complete or workmanlike. Subcontractor and its employees, representatives, subcontractors, and agents shall have access to a Property or Properties only to the extent necessary for the proper performance of Work. 
  1. The Subcontractor shall execute the Work set forth in each agreed upon Purchase Order or such other document as the Contractor and Subcontractor may mutually agree upon. Each Purchase Order shall state the name, location, and description of the Project; identify the Owner and Architect; state the Subcontract Time; state the Subcontract Sum; describe the Subcontractor’s Work; and enumerate the Subcontract Documents.
  1. The Contractor is not required to issue any Purchase Orders under this Master Agreement and the Subcontractor may decline to accept any Purchase Order issued by the Contractor.
  1. The Contractor shall make the Subcontract Documents available to the Subcontractor prior to execution of the Purchase Order, and thereafter, upon request. The Contractor may charge the Subcontractor for the reasonable cost to reproduce the Subcontract Documents provided to the Subcontractor.

ARTICLE 2 SUBCONTRACT DOCUMENTS

  1. The Subcontract Documents are enumerated in each Purchase Order and consist of (1) this Master Agreement; (2) the “Prime Contract”, consisting of the Agreement between the Owner and Contractor, as it may be amended from time to time, and the other Contract Documents enumerated therein; (3) the Purchase Order executed by the Contractor and Subcontractor (including, if applicable, Supplementary and other Conditions applicable to the Purchase Order); (4) all Drawings, Specifications, and Addenda issued in connection with the Purchase Order; (5) other documents listed in the Purchase Order; and (6) Modifications issued after execution of the Purchase Order in accordance with the provisions of Article 5, including, without limitation, Change Orders. These form the Subcontract and are as fully a part of the Subcontract as if attached to this Master Agreement or repeated herein.
  1. The Subcontract Documents for each Purchase Order form a separate Subcontract for construction of the Subcontractor’s Work (“the Subcontract”). The Subcontract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations, or any other agreements, either written or oral.
  1. For each Purchase Order, terms not defined in the Prime Contract, this Master Agreement, or in the Purchase Order shall have the same meaning as those in AIA Document A201-2017, General Conditions of the Contract for Construction.
  2. The Subcontract may be amended or modified only by a Modification. A Modification is a written amendment to the Subcontract signed by both parties, or as otherwise described in, and in accordance with the provisions of, Article 5.
  3. The Subcontract Documents shall not be construed to create a contractual or other legal relationship of any kind (1) between the Architect and the Subcontractor, (2) between the Owner and the Subcontractor, (3) between S2C Management, LLC d/b/a S2 Residential and the Subcontractor, (4) between S2 Capital and the Subcontractor, or (5) between any persons or entities other than the Contractor and Subcontractor.
  1. CONFLICTS. In the event of a conflict between the Subcontract Documents and the Prime Contract, the provisions which are more stringent on the Subcontractor and require more, quicker, or better performance by Subcontractor shall govern.
  2. Except to the extent of a conflict with a specific term or condition contained in the Subcontract Documents, the General Conditions governing this Agreement shall be the AIA Document A201-2017, General Conditions of the Contract for Construction.

ARTICLE 3 SCHEDULE OF WORK

  1. TIME IS OF ESSENCE. Time is of the essence for both parties, and they mutually agree to see to the performance of their respective work and the work of their subcontractors so that the entire Project may be completed in accordance with the Subcontract Documents and the Schedule of Work. The Contractor shall prepare the Schedule of Work and may revise such Schedule of Work as the Work progresses. If the Subcontractor fails to prosecute and complete the Subcontractor’s Work as required by the Schedule of Work, the Subcontractor shall be liable to the Contractor for all damages incurred by the Contractor as provided in the Prime Contract.
  1. SCHEDULE OF WORK. Subcontractor shall provide Contractor with scheduling information regarding durations and sequence it proposes for its work. It shall be Subcontractor’s obligation to conform to the updated progress schedule, as updated by Contractor. Contractor shall have the right to reasonably modify the construction schedule to suspend, delay, or accelerate the Work, in whole or in part, or vary the sequence thereof, without compensation to the Subcontractor. In the event such delay or suspension extends the overall time of performance, the Completion Date for the Subcontractor’s Work shall be extended. The Schedule of Work and all subsequent changes thereto shall be provided to the Subcontractor in advance of the required performance
  1. DELAY. Should the Subcontractor’s Work be delayed, hindered, or forced out of sequence, interfered with, or otherwise disrupted in any way by the act or omission of the Contractor, or by any other Contractor or Subcontractor on the Project, or by any cause beyond the Subcontractor’s control and not due to the fault, act or omission on the part of Subcontractor, then the time for completion of the Work shall be extended for a period equivalent to the time lost by reason of any of the aforesaid causes, as determined by the Contractor. Such extension of time shall be the Subcontractor’s sole and exclusive remedy for any such occurrence or occurrences or the cumulative impact thereof.
  1. The Subcontractor recognizes that revisions in the planned schedule are inherent in the nature of construction. This may result in revisions of Contractor’s schedule of the Work during the progress of construction. Subcontractor agrees that Contractor cannot guarantee Subcontractor can start work on any particular date or continue without interruption once started. Contractor will only be responsible for delay conditions resulting in schedule delay solely within its control and which causes Subcontractor manifestly unreasonable delay in the performance of its work, provided Subcontractor gives written notice of the delay. Failure of Subcontractor to give Contractor written notice of the delay within 24 hours of occurrence shall constitute waiver by Subcontractor of any claim of increase in Subcontract Sum or Subcontract Time. The term “manifestly unreasonable” means a delay which is evident, obvious, or apparent and exceeds the bound of reason, moderation, and rationality and which is not in accordance with the practical realities of the Project requirements.

ARTICLE 4 PAYMENTS

  1. SUBCONTRACT SUM
    1. Each Purchase Order shall include a Subcontract Sum, which, the Contractor shall pay to the Subcontractor in current funds in accordance with each individual Subcontract. The Subcontract Sum may only be increased or decreased by the amount set forth in a Change Order.
  1. The Subcontract Sum includes, and Subcontractor shall pay for all labor; materials; tools; equipment; supplies; federal, state, local and all other applicable taxes; transportation; storage facilities; shop drawings; competent supervision; temporary facilities and all other things necessary for performance of the Work covered by the Subcontract.
  1. PROGRESS PAYMENTS
    1. Schedule of Values. Prior to submitting the first Application for Payment, the Subcontractor shall submit an itemized Schedule of Values on AIA Form G703 (or such form satisfactory to Contractor).
    2. Applications for Payment. Subcontractor shall submit individual Applications for Payment for each Subcontract on AIA Form G702 and G703 (or equivalent form) for all Work projected to be completed through the end of the period covered by the Application for Payment.
  1. Payment Period. The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as set forth in the Purchase Order.
  1. Application Due Date. Provided an Application for Payment is received by the Contractor not later than the 25th day of the month, the Contractor shall include the Subcontractor’s Work covered by that application in the next Application for Payment which the Contractor will submit to the Owner. If the Subcontractor’s Application for Payment is received by the Contractor after the application date fixed above, the Subcontractor’s Work covered by it shall be included by the Contractor in the next Application for Payment submitted to the Owner.
  2. Progress Payment to Subcontractor. Contractor shall issue payment to the Subcontractor within ten business days after the Contractor receives payment from the Owner.
  1. Acceptance by Subcontractor. Acceptance of periodic progress payments by Subcontractor shall constitute a waiver of any and all claims by Subcontractor against Contractor or its bond surety prior to date of acceptance unless such claims are expressly made in writing and reserved on the face of the Pay Application or on the face of an affidavit and release, or a lien waiver or an attachment thereto.
  1. Stored Materials. Unless otherwise provided in the Subcontract Documents, and if approved in advance by Owner and Contractor, Applications for Payment may include materials and equipment not incorporated in the Subcontractor’s Work but delivered and suitably stored at the site or some other location agreed upon in writing. Approval of payment for such stored items on or off the site shall be conditioned upon Subcontractor’s submission of bills of sale and applicable insurance or such other procedures satisfactory to the Owner and Contractor to establish the Owner’s title to such materials and equipment or otherwise protect the Owner’s and Contractor’s interests therein, including transportation to the site.
  1. Retainage. For each progress payment made prior to substantial completion of the Subcontractor’s Work, the Contractor may withhold up to 10% as retainage from the payment otherwise due.
  2. Application Disapproval. Upon the partial or entire disapproval by the Contractor of the Subcontractor’s Application for Payment, the Contractor shall provide notice to the Subcontractor. If the Subcontractor disputes the Contractor’s decision regarding a Subcontractor’s Application for Payment in whole or in part, the Subcontractor may submit a Claim in accordance with Article 6. When the basis for the disapproval has been remedied, the Subcontractor shall be paid the amounts withheld.
  1. Lien Release. Provided the Contractor has fulfilled its payment obligation under the Subcontract Documents, the Subcontractor shall defend, indemnify, and hold harmless the Contractor and Owner from all loss, liability, damage, or expense, including reasonable attorney’s fees and litigation expenses, arising out of any lien claim or other claim for payment by any of the Subcontractor’s subcontractors, suppliers, or vendors of any tier. Upon receipt of notice of such lien claim or other claim for payment, the Contractor shall notify the Subcontractor. If approved by the applicable court, when required, the Subcontractor may substitute a surety bond for the property against which the lien or other claim for payment has been asserted.
  2. Remedies for Nonpayment. If the Contractor does not pay the Subcontractor through no fault of the Subcontractor, within seven days from the time payment should be made as provided in the Subcontract, the Subcontractor may, without prejudice to any other available remedies, upon seven additional days’ notice to the Contractor, stop the Work of this Subcontract until payment of the amount owing has been received. The Subcontract Sum shall, by appropriate Modification, be increased by the amount of the Subcontractor’s reasonable costs of demobilization, delay, and remobilization provided, however, that receipt of payment by Contractor from Owner shall be a condition precedent of payment to Subcontractor by Contractor unless the Owner’s failure to make payment is solely caused by Contractor.
  1. Payment Not Acceptance. Progress payment to the Subcontractor is specifically agreed not to constitute or imply acceptance by Contractor or Owner of any portion of the Subcontractor’s Work.
  1. Subcontractor Payment Failure. In the event the Contractor has reason to believe that labor, material, or other obligations incurred in the performance of the Subcontractor’s Work are not being paid, the Contractor shall give written Notice of such claim or lien to the Subcontractor and may take any steps deemed necessary to ensure that any progress payment shall be utilized to pay such obligations. If upon receipt of said notice, the Subcontractor does not: (1) supply evidence to the satisfaction of the Contractor that the monies owing have been paid; or (2) post a bond indemnifying the Owner, the Contractor, and the premises from such claim or lien; then the Contractor shall have the right to (i) retain out of any payments due or to become due to the Subcontractor a reasonable amount to protect the Contractor from any and all loss, damage or expense (including attorney’s fees and any associated costs and expenses) arising out of or relating to any such claim or lien until the claim or lien has been satisfied by the Subcontractor, or (ii) make payment of such claim or lien and deduct the amount thereof from the sums otherwise due Subcontractor hereunder.
  1. SUBSTANTIAL COMPLETION. When the Subcontractor’s Work or a designated portion thereof is substantially complete, in accordance with the requirements of the Subcontract Documents, and accepted by the Contractor, the Contractor shall, upon application by the Subcontractor, make prompt Application for Payment for such Work. Within ten working days following receipt of payment by the Contractor from the Owner covering such substantially completed Work, the Contractor shall, to the fullest extent allowed in the Prime Contract, make payment to the Subcontractor, deducting any portion of the funds for the Subcontractor’s Work to cover costs of items to be completed or corrected by the Subcontractor. Such payment to the Subcontractor shall be the entire unpaid balance of the Subcontract Sum if a full release of retainage is allowed under the Prime Contract for the Subcontractor’s Work prior to the completion of the entire Project.
  2. FINAL PAYMENT. Final payment of the entire unpaid balance of the Subcontract Sum shall be made by the Contractor to the Subcontractor when the Subcontractor’s Work is fully performed in accordance with the requirements of the Subcontract Documents and within ten working days after the Contractor has received payment from the Owner.
  1. Before issuance of the final payment, the Subcontractor, if required, shall submit evidence satisfactory to the Contractor that all payrolls, bills for materials and equipment, and all known indebtedness connected with the Subcontractor’s Work have been satisfied. Acceptance of final payment by the Subcontractor shall constitute a waiver of claims by the Subcontractor, except those previously made in writing and identified by the Subcontractor as unsettled at the time of final Application for Payment. Subcontractor shall furnish to Contractor a general release of all claims and a final lien waiver acceptable to Contractor and Owner.
  2. Final Acceptance. Final acceptance of Work and payment therefore shall not relieve Subcontractor from liability for defects in Work, which may thereafter be discovered.
  1. Contractor shall have the right to withhold and set off or recoup from Subcontractor’s progress payments or final payment or any portion thereof, sufficient funds to compensate Contractor for:
    1. Any liquidated damages withheld by Owner for payment to Contractor due to Subcontractor caused delays in the progress of the Work or default of Subcontractor under the Subcontract.
    2. Actual cost to Contractor incurred as a result of Subcontractor’s failure to adhere to the schedule including, but not limited to, the cost of additional workmen and materials made necessary by Subcontractor’s failure.
    3. Such sum as Contractor determines is necessary to protect Contractor for losses as a result of default by Subcontractor (or a good faith belief of potential default by Subcontractor) under the Subcontract including the filing or probable filing of mechanic’s liens and/or bond claims by any sub-subcontractor and/or material supplier of Subcontractor.
    4. Any sum due Subcontractor by Contractor on any other project for which Subcontractor has performed work under an agreement with Contractor.
    5. Failure of Subcontractor to file with Contractor required insurance certificates and surety bonds.
  2. Contractor may withhold progress payment or final payment from Subcontractor in whole or in part for any failure of Subcontractor to perform the terms and conditions of the Subcontract Documents or for the reasons and circumstances by with the Owner may withhold payment from Contractor, regardless of whether the Owner has actually withheld payment from the Contractor.
  1. Contractor in its sole discretion shall have the right but not the obligation to make payment to Subcontractor and its sub- subcontractors and materials suppliers by the issuance of a joint check to satisfy and debts for furnishing of labor, material, equipment, and supplies to the Project.
  1. INTEREST. Payment due and unpaid under this Subcontract shall bear interest from the date payment is due at such rate as the parties may agree upon in writing. The parties agree on 0% interest on both progress payments and final payment unless otherwise indicated herein.
  2. INVOICES. Subcontractor is required to upload its invoices into the designated supplier portal to ensure a streamlined and efficient payment process. This centralized system allows for accurate tracking, faster processing, and better communication between Subcontractor and the accounts payable team. Subcontractor agrees to submit invoices within sixty (60) calendar days from completion of Work. Subcontractor understands, acknowledges, and agrees that neither Contractor nor Owner are liable (under any contract, quasi-contract, or other theory of liability) for or required to pay any portion of any invoice (including, without limitation, principal, interest, taxes, and fees): (a) that is not submitted to the designated supplier portal within sixty (60) calendar days from completion of Work; or (b) for Work completed without an accompanying authorized Purchase Order number or Change Order, as applicable. By adhering to this procedure, Subcontractor can help maintain a smooth workflow, minimize errors, and facilitate timely payments. Compliance with this section is essential for maintaining a productive and transparent business relationship. Subcontractor has read, understands, acknowledges, and agrees to the terms and conditions set forth in Section 1.2.1, Section 4.6, and Article 5 herein regarding purchase orders, change orders, and invoicing. In the event of any action, cause of action, claim, dispute, or legal action or proceeding arising from or relating to the terms and conditions set forth in Section 1.2.1, Section 4.6, and/or Article 5 herein, Contractor is entitled to recover all costs and expenses incurred in connection with its enforcement or defense of any such action, cause of action, claim, dispute, or legal action or proceeding, including, without limitation, attorneys’ fees and costs.

ARTICLE 5 CHANGES IN THE WORK

  1. CHANGES. The Subcontractor may be ordered in writing by the Contractor, without nullifying the Subcontract, to make changes in the Work which are within the general scope of the Subcontract consisting of additions, deletions, or other revisions, with the Subcontract Sum and the Subcontract Time adjusted accordingly.
  1. NOTIFICATION OF ADDITIONAL COSTS OR TIME. Subcontractor shall within two working days provide written notification to Contractor if a direction could result in additional costs or time of performance. If Subcontractor proceeds with additional work without prior written notification to Contractor, then it is agreed Subcontractor has waived his right to compensation for said work.
  1. INCORPORATING CHANGES. All provisions of the Subcontract shall apply to any changes or extras in a like manner and to the same extent as though said changes or extras were incorporated in the Subcontract. The Subcontractor shall submit Change Order Requests on a form and manner acceptable to the Contractor.
  1. PERFORMANCE. Subcontractor shall proceed with all written directions issued by Contractor so as not to delay the work. Subcontractor shall not make any changes to the work set forth in the Subcontract Documents, either as additions or deletions, without the written direction of Contractor.

ARTICLE 6 CLAIMS AND DISPUTES

  1. MEDIATION
    1. Any controversy, Claim, or dispute arising out of or relating to the Subcontract shall be subject to non-binding mediation as a condition precedent to binding dispute resolution set forth in Section 6.2 below.
  1. The parties shall endeavor to resolve their Claims first by non-binding mediation, which shall be administered by the American Arbitration Association in accordance with its then-current Construction Industry Arbitration Rules and Mediation Procedures. A request for mediation shall be made in writing and delivered to the other party to the Subcontract and filed with the person or entity administering the mediation. The request may be made concurrently with the filing of binding dispute resolution proceedings but, in such event, mediation shall proceed in advance of binding dispute resolution proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties. If an arbitration is stayed pursuant to this Section 6.1.2, the parties may nonetheless proceed to the selection of the arbitrator(s) and agree upon a schedule for later proceedings.
  2. The parties shall share the mediator’s fee and any filing fees equally. The mediation shall be held in Dallas, Texas. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.
  1. BINDING DISPUTE RESOLUTION – ARBITRATION 
    1. In the event the parties do not resolve a dispute through non-binding mediation as described in Section 6.1 above, any controversy, Claim, or dispute arising out of or relating to the Subcontract shall be resolved exclusively through binding arbitration, which shall be administered by the American Arbitration Association in accordance with its then-current Construction Industry Arbitration Rules and Mediation Procedures. In the event of any conflict, inconsistency, or ambiguity between Article 6 of this Agreement and the applicable Construction Industry Arbitration Rules and Mediation Procedures, the terms of Article 6 of this Agreement will govern and control.
  1. If non-binding mediation pursuant to Section 6.1 fails, the demand for arbitration must be filed with the American Arbitration Association no later than sixty (60) calendar days following the conclusion of the failed mediation.
  1. The arbitrator or arbitrators shall have the power to rule on his/her/their own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim, counterclaim, or defense without any need to refer such matters first to a court.
  1. The arbitration must be conducted in Dallas, Texas. A demand for arbitration shall be made in writing, delivered to the other party to the Subcontract, and filed with the person or entity administering the arbitration. The party filing a notice of demand for arbitration must assert in the demand all Claims then known to that party on which arbitration is permitted to be demanded.
  1. The award rendered by the arbitrator or arbitrators shall be final and binding on the parties, and judgment may be entered and enforced in accordance with applicable law in any court having jurisdiction thereof.
  1. The arbitrator or arbitrators shall have no power to award any punitive damages or exemplary damages or to ignore or vary the terms of the Subcontract. 
  2. Subcontractor shall pay Contractor’s costs and fees, including attorney’s fees, for arbitration should Contractor prevail on Subcontractor’s claims against Contractor or on Contractor’s claims against Subcontractor, as stated herein.
  1. Consolidation or Joinder
    1. Subject to the then-current Construction Industry Arbitration Rules and Mediation Procedures of the American Arbitration Association, either party may consolidate an arbitration conducted under this Agreement with any other arbitration to which it is a party provided that (1) the arbitration agreement governing the other arbitration permits consolidation; (2) the arbitrations to be consolidated substantially involve common questions of law or fact; and (3) the arbitrations employ materially similar procedural rules and methods for selecting arbitrator(s).
    2. Subject to the then-current Construction Industry Arbitration Rules and Mediation Procedures of the American Arbitration Association, either party may include by joinder persons or entities substantially involved in a common question of law or fact whose presence is required if complete relief is to be accorded in arbitration, provided that the party sought to be joined consents in writing to such joinder. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of a controversy, Claim, dispute, or other matter in question not described in the written consent.
    3. The Contractor and Subcontractor grant to any person or entity made a party to an arbitration conducted under this Section 6.2, whether by joinder or consolidation, the same rights of joinder and consolidation as the Contractor and Subcontractor under this Agreement.
  1. WAIVER OF CLAIMS FOR CONSEQUENTIAL DAMAGES. The Contractor and Subcontractor waive claims against each other for consequential damages arising out of or relating to the Subcontract, including without limitation, any consequential damages due to either party’s termination in accordance with Article 9. Nothing contained herein shall be deemed to preclude an award of liquidated damages, when applicable, in accordance with the requirements of the Subcontract.
  1. CONTINUING CONTRACT PERFORMACE. Pending final resolution of a controversy, Claim, or dispute, except as otherwise agreed in writing, the Subcontractor shall proceed diligently with performance of the Subcontract and the Contractor shall continue to make payments in accordance with the Subcontract Documents.

ARTICLE 7 CONTRACTOR

  1. GENERAL. The Contractor is the person or entity identified as such in this Master Agreement and is referred to throughout the Subcontract Documents as if singular in number. The term “Contractor” means the Contractor or the Contractor’s authorized representative.
  1. AUTHORIZED REPRESENTATIVE. In each Purchase Order, the Contractor shall designate one or more persons who shall be Contractor’s authorized representative(s). Such authorized representative(s) shall be the only person(s) Subcontractor shall look to for instructions, orders, and/or directions, except in an emergency. The Contractor shall not give instructions or orders directly to the Subcontractor’s employees or to the Subcontractor’s Sub-subcontractors or suppliers unless such persons are designated as authorized representatives of the Subcontractor.
  1. TIMELY RESPONSE. The Contractor shall (1) render decisions in a timely manner and in accordance with the construction schedule; (2) review and expedite written responses to submittals made by the Subcontractor; and (3) promptly notify the Subcontractor of subsequent changes in the construction and submittal schedules and additional scheduling details.
  1. COMMUNICATIONS. The Contractor shall promptly make available to the Subcontractor information, including information received from the Owner, that affects the performance of the Subcontract and that becomes available to the Contractor after execution of the Subcontract.
  1. STORAGE ALLOCATION. If available, Contractor shall allocate area(s) for Subcontractor’s materials and equipment during performance of the Subcontract.
  2. DEFECTS IN WORK. The Contractor shall promptly notify the Subcontractor of any fault or defect in the Work under the Subcontract or nonconformity with the Subcontract Documents.
  3. CLAIMS BY THE CONTRACTOR
    1. Liquidated Damages. If the Prime Contract provides for liquidated or other damages for delay beyond the completion date set forth in the Prime Contract, and are so assessed, then the Contractor may assess same against the Subcontractor in proportion to the Subcontractor’s share of the responsibility for such delay. However, other than for damages incurred by the Contractor associated with the Subcontractor’s untimely performance, the amount of such assessment shall not exceed the amount assessed against the Contractor.
    2. The Contractor’s Claims for the costs of services or materials provided due to the Subcontractor’s failure to execute the Work shall require two days’ notice prior to the Contractor providing services or materials, except in an emergency or as needed to meet requirements of existing schedule for performance of the Work.
  1. CONTRACTOR’S REMEDIES. If the Subcontractor defaults or neglects to carry out the Work in accordance with the Subcontract and fails within two working days after receipt of notice from the Contractor to commence and continue correction of such default or neglect with diligence and promptness, the Contractor may, without prejudice to other remedies the Contractor may have, remedy such default or neglect and withhold the reasonable cost thereof from current or future payments due the Subcontractor. If payments due to the Subcontractor are not sufficient to cover such amounts, the Subcontractor shall pay the difference to the Contractor.

ARTICLE 8 SUBCONTRACTOR

  1. GENERAL. The Subcontractor is the person or entity identified as such in this Master Agreement and is referred to throughout the Subcontract Documents as if singular in number. The Subcontractor shall be lawfully licensed, if required in the jurisdiction where the Project is located.
  1. For all Work the Subcontractor intends to subcontract, the Subcontractor shall enter into written agreements with Sub- subcontractors performing portions of the Work of this Subcontract by which the Subcontractor and the Sub-subcontractor are mutually bound, to the extent of the Work to be performed by the Sub-subcontractor, assuming toward each other all obligations and responsibilities that the Contractor and Subcontractor assume toward each other and having the benefit of all rights, remedies, and redress each against the other that the Contractor and Subcontractor have by virtue of the provisions of this Agreement.
  2. RESPONSIBILITIES. Subcontractor shall furnish all labor, materials, equipment, and services to perform its work in accordance with the Subcontract Documents. If requested by Contractor, Subcontractor shall provide to Contractor a list of its proposed subcontractors and suppliers. Subcontractors shall be responsible for taking field dimensions, providing tests, ordering of materials and all other actions as required to meet the Schedule of Work.
  1. TEMPORARY SERVICES AND EQUIPMENT. The Subcontractor shall furnish all temporary services and/or facilities necessary or appropriate to perform its Work. The Purchase Order shall identify the common temporary services, if any, which are to be furnished by the Contractor.
  1. COORDINATION. The Subcontractor shall (1) cooperate with the Contractor and all others whose work may interfere with Subcontractor’s Work; (2) participate in the preparation of coordination drawings, if required, and work schedules in areas of congestion; and (3) specifically note and immediately advise the Contractor of any such interference with the Subcontractor’s Work.
  1. SUPERVISION. The Subcontractor shall supervise and direct the Subcontractor’s Work and shall cooperate with the Contractor in scheduling and performing the Subcontractor’s Work to avoid conflict, delay in, or interference with the Work of the Contractor, other subcontractors, the Owner, or Separate Contractors.
  1. AUTHORIZED REPRESENTATIVE. In each Purchase Order, the Subcontractor shall designate one or more persons who shall be the authorized Subcontractor’s representative(s). Such authorized representative(s) shall be the only person(s) to whom the Contractor shall issue instructions, orders, or directions.
  2. ADEQUATE NOTICE. Subcontractor shall give adequate notices to all required parties pertaining to Subcontractor’s work and shall notify Contractor when portions of the Work are ready for inspection. The Subcontractor shall coordinate and notify Contractor of all required tests, inspections, and approvals of Subcontractor’s Work so as not to delay the performance of the work.
  1. CLEANUP. Subcontractor shall follow the Contractor’s cleanup directions, and at all times keep the building and premises free from debris resulting from Subcontractor’s Work. Cleanup of Work area shall occur daily.
  1. If the Subcontractor fails to cleanup as provided in the Subcontract Documents, the Contractor may charge the Subcontractor for the Subcontractor’s appropriate share of cleanup costs. If cleanup is not completed within 24 hours of written notice to Subcontractor, Contractor may perform cleanup at rate of $50 per hour and deduct cost from Subcontract Sum.
  2. PROTECTION OF THE WORK. The Subcontractor shall take necessary precautions to properly protect the Subcontractor’s Work and the work of others from damage caused by the Subcontractor’s operations. Should the Subcontractor cause damage to the work or property of the Owner, the Contractor or others, the Subcontractor shall promptly remedy such damage to the satisfaction of the Contractor, or the Contractor may so remedy and deduct the cost thereof from any amounts due or to become due the Subcontractor.
  1. PERMITS, FEES, AND COMPIANCE WITH LAWS. The Subcontractor shall secure and pay for all permits, fees, licenses, inspections, and taxes necessary to complete Subcontractor’s Work in accordance with the Subcontract Documents. The Subcontractor shall give notices and comply with applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities bearing on performance of the Work of the Subcontract.
    1. The Subcontractor shall comply with Federal, state, and local tax laws; social security acts; unemployment compensation acts; and workers’ compensation acts, insofar as applicable to the performance of the Subcontract.
  1. SUBMITTALS. The Subcontractor shall submit Shop Drawings, Product Data, Samples, and similar submittals required by the Subcontract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Contractor or subcontractors.
    1. By submitting Shop Drawings, Product Data, Samples, and similar submittals, the Subcontractor represents to the Contractor that the Subcontractor has (1) reviewed and approved them; (2) determined and verified materials, field measurements, and field construction criteria related thereto, or will do so; and (3) checked and coordinated the information contained within such submittals with the requirements of the Work and of the Subcontract Documents.
  1. PROGRESS REPORTS. The Subcontractor shall furnish to the Contractor periodic progress reports on the Work of the Subcontract as mutually agreed, including information on the status of materials and equipment that may be in the course of preparation, manufacture, or transit.
  1. REJECTION OF WORK. The Subcontractor agrees that the Contractor and the Architect each have the authority to reject the Work of the Subcontractor that does not conform to the Subcontract Documents. Decisions on matters relating to aesthetic effect shall be final and binding on the Subcontractor if consistent with the intent expressed in the Subcontract Documents.
  1. SITE VISITATION. Subcontractor is responsible for visiting the project site and visually inspecting the general and local conditions that could affect its Work. Any failure of Subcontractor to reasonably ascertain, from a visual inspection of the site, the general and local conditions which could affect its Work will not relieve Subcontractor from its responsibility to properly complete its Work without change in the Subcontract Sum.
  1. WORKMANSHIP. Every part of Subcontractor’s Work shall be executed in accordance with the Subcontract Documents in a workmanlike manner. All materials needed by Subcontractor shall be furnished in sufficient quantities to facilitate the proper and expeditious execution of the Work.
  1. SUBSTITUTIONS. No substitutions shall be made in the Subcontractor’s Work unless permitted in the Subcontract Documents and only then upon the Subcontractor first receiving all approvals required under the Subcontract Documents for substitutions. The Subcontractor shall indemnify the Contractor for any increased costs incurred by the Contractor as a result of such substitutions, whether or not the Subcontractor has obtained approval thereof.
  2. SAFETY. Subcontractor is responsible for prevention of accidents arising from or relating to its Work. Subcontractor shall comply fully with all OSHA regulations and amendments, federal, state, and local laws, orders, citations, rules, regulations, standards, and statutes affecting or relating to the conduct of its performance on and in connection with the Subcontract. Subcontractor shall indemnify Contractor for fines, penalties, and corrective measures that result from acts of commission or omission by Subcontractor, his agent, sub-subcontractors, and employees, in failure to comply with such safety rules, regulations, accident prevention and safety program of Owner or Contractor. Establishment of a safety program by Owner or Contractor shall not relieve Subcontractor of its safety responsibilities. The Subcontractor shall notify the Contractor within three days of an injury to an employee or agent of the Subcontractor which occurred at the site.
  1. DUTY TO PROCEED. In the event of any dispute or controversy with Contractor, another subcontractor or other third party involved with the Project, Subcontractor shall not cause or permit any delay or cessation of its Work or cause delay or disruption to the work of any other subcontractor or Contractor on the Project but shall proceed with performance of its Work pending resolution of such dispute or controversy.
  1. WARRANTY. The Subcontractor warrants to the Owner, Architect, and Contractor that materials and equipment furnished under the Subcontract will be of good quality and new unless the Subcontract Documents require or permit otherwise. The Subcontractor further warrants its Work against all deficiencies and defects in materials and/or workmanship and as called for in the Subcontract Documents. The Subcontractor agrees to satisfy such warranty obligations which appear within the guarantee or warranty period established in the Prime Contract without cost to the Owner or the Contractor. If no guarantee or warranty is required of the Contractor in the Prime Contract, then the Subcontractor shall guarantee and warranty its Work for the period of one year from the Date(s) of Substantial Completion of the Project or acceptance or use by the Contractor or Owner of designated equipment, whichever is sooner.
    1. The Subcontractor’s warranty excludes remedy for damage or defect caused by abuse, alterations to the Work not executed by the Subcontractor, improper or insufficient maintenance or operation, or normal wear and tear under normal usage.
  1. If required by the Contractor, the Subcontractor shall provide satisfactory evidence as to the kind and quality of materials and equipment furnished or to be furnished. The Subcontractor further agrees to execute any special guarantees or warranties that shall be required for the Subcontractor’s Work prior to final payment.
  1. All material, equipment, or other special warranties required by the Subcontract Documents shall be issued in the name of the Owner, or shall be transferable to the Owner, and shall commence in accordance with the Subcontract Documents.
  1. DEFICIENCIES. Subcontractor shall notify the Contractor of any deficiencies in any work at the site prior to the commencement of Subcontractor’s Work. Any unreported deficiencies discovered, or which should have been discovered by Subcontractor shall be deemed accepted by the Subcontractor as the commencement of the Subcontractor’s work in such areas and becomes the responsibility of Subcontractor.
  1. MATERIALS FURNISHED BY OTHERS. In the event the scope of the Subcontractor’s Work includes installation of materials or equipment furnished by others, it shall be the responsibility of the Subcontractor to examine the items so provided to confirm the correct quantity and thereupon handle, store, and install the items with such skill and care as to ensure a satisfactory and proper installation. Loss or damage due to acts of the Subcontractor shall be deducted from any amounts due or to become due the Subcontractor.
  1. USE OF CONTRACTOR’S EQUIPMENT. Subcontractor may use Contractor’s equipment only with the express written permission of Contractor’s designated representative and in accordance with Contractor’s terms and conditions for such use.

ARTICLE 9

TERMINATION, SUSPENSION, OR ASSIGNMENT OF THE SUBCONTRACT

  1. TERMINATION BY THE SUBCONTRACTOR. The Subcontractor may terminate the Subcontract for the same reason and under the same circumstances and procedures with respect to the Contractor as the Contractor may terminate with respect to the Owner under the Prime Contract, or for nonpayment of undisputed amounts due under the Subcontract for 120 days or longer if the Contractor fails to cure within thirty days of receipt of written notice from the Subcontractor of intent to terminate pursuant to this provision. In the event of such termination by the Subcontractor for any reason which is not the fault of the Subcontractor, the Subcontractor’s Sub-contractors, or their agents or employees or other persons or entities performing portions of the Work under contract with the Subcontractor, the Subcontractor shall be entitled to recover from the Contractor payment for Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, as well as reasonable overhead and profit on work executed and costs incurred by reason of such termination. Receipt of payment from Owner to Contractor shall be a condition precedent to the right of Subcontractor to payment for termination unless the termination is due solely to the fault of Contractor. But in no event shall Subcontractor be entitled to unexpended overhead, or unearned profit, or any other monetary damages.
  1. TERMINATION BY THE CONTRACTOR.
    1. Termination for Cause. If the Subcontractor repeatedly fails or neglects to carry out the Work in accordance with the Subcontract Documents or otherwise to perform in accordance with the Subcontract and fails within a three day period after receipt of notice to commence and continue correction of such default or neglect with diligence and promptness, the Contractor may, by notice to the Subcontractor and without prejudice to any other remedy the Contractor may have, terminate the Subcontract and finish the Subcontractor’s Work by whatever method the Contractor may deem expedient. If the unpaid balance of the Subcontract Sum exceeds the expense of finishing the Subcontractor’s Work and other damages incurred by the Contractor and not expressly waived, such excess shall be paid to the Subcontractor. If such expense and damages exceed the unpaid balance of the Subcontract Sum, the Subcontractor shall pay the difference to the Contractor. Contractor may terminate the Subcontractor for the reasons and in accordance with the same procedures as Owner may terminate the Prime Contract.
      1. In the event that termination of the Subcontract for cause (or default) of Subcontractor is later determined not to have been the fault of Subcontractor, then such termination shall be deemed to have been a termination for the convenience of Contractor and Subcontractor agrees that its sole and exclusive remedy for such termination shall be as set forth herein for a termination for the convenience of Contractor.
  1. Termination for Convenience.
    1. If the Owner terminates the Prime Contract for the Owner’s convenience, the Contractor shall promptly deliver notice to the Subcontractor.
    2. In case of such termination for the Owner’s convenience, the Subcontractor shall be entitled to receive payment for Work properly executed, costs incurred by reason of the termination, and reasonable overhead and profit on the Work executed; but not any other damages unless as a precondition to recovery by Subcontractor is that Contractor receives such payment from Owner.
  1. Upon receipt of Notice of Termination, the Subcontractor shall:
    1. Cease operations as directed by the Contractor in the Notice;
    2. Take actions necessary, or that the Contractor may direct, for the protection and preservation of the Work; and
    3. Except for Work directed to be performed prior to the effective date of termination stated in the Notice, terminate all existing Sub-subcontracts and purchase orders and enter into no further Sub-subcontracts and purchase orders.
  1. SUSPENSION OR TERMINATION BY THE CONTRACTOR FOR CONVENIENCE.
    1. The Contractor may, without cause, order the Subcontractor in writing to suspend, delay, or interrupt the Work of the Subcontract in whole or in part for such period of time as the Contractor may determine. In the event of suspension ordered by the Contractor, the Subcontractor shall be entitled to an equitable adjustment of the Subcontract Time and Subcontract Sum.
  1. The Subcontract Time and Subcontract Sum shall be adjusted for increases in the cost and time caused by suspension, delay, or interruption as described in Section 9.3.1. Adjustment of the Subcontract Sum shall include profit on the increased cost of performance caused by suspension, delay, or interruption. No adjustment shall be made to the extent that (1) performance is, was, or would have been so suspended, delayed, or interrupted by another cause for which the Subcontractor is responsible; or (2) an equitable adjustment is made or denied under another provision of the Subcontract.
  1. Contractor at any time and without the default of Subcontractor, and for any reason whatsoever, may terminate this Subcontract either in whole or in part for the convenience of the Contractor. Subcontractor agrees that upon any such termination the Subcontractor shall take such action as set forth above in Section 9.2.2.3 and Subcontractor’s sole and exclusive remedy shall be the payment of the full value of all Work properly performed by Subcontractor as of the date of termination notice less any monies previously advanced to the Subcontractor. Subcontractor agrees to waive any and all claims for damages including unearned overhead and unearned anticipated profits arising from, out of or related to any such termination by Contractor.
  2. In the event the suspension of the Subcontract is ordered by Contractor because of suspension of the Prime Contract by Owner, for the Owner’s convenience, then receipt of payment by Contractor from Owner for the cost of Suspension of the Subcontract shall be a condition precedent to the right of Subcontractor to payment for such suspension.
  1. ASSIGNMENT OF THE SUBCONTRACT.
    1. In the event the Owner terminates the Prime Contract for cause, the Subcontract is assigned to the Owner, provided the Owner accepts the assignment by notifying the Contractor and Subcontractor.

9.4.3 Termination of a Subcontract under this Article 9 shall not be deemed a termination of other Subcontracts under this Master Agreement.

ARTICLE 10 INDEMNIFICATION

  1. To the fullest extent permitted by law, the Subcontractor shall defend, indemnify, and hold harmless the Owner, Contractor, S2 AZ Construction Company LLC, S2C Management, LLC d/b/a S2 Residential, S2C FL Management, LLC, S2 NC Management LLC, S2C TN Management LLC, S2 Capital, Architect, Architect’s consultants, and each of their respective parents, predecessors, subsidiaries, and related and/or affiliated entities, as well as each of their respective current and former officers, directors, principals, partners, managers, members, employees, successors, assigns, insurers, reinsurers, attorneys, and agents thereof, from and against any and all actions, causes of action, claims, demands, obligations, rights, suits, damages, losses, liabilities, penalties, fines, costs, judgments, settlements, expenses (including, without limitation, attorneys’ fees, professional fees, and court costs), and any other amounts arising from or related to any action, cause of action, claim, demand, suit, or proceeding, whether in tort, contract, equity, or otherwise (collectively, “Claim(s)”), which in any way arise out of or in connection with, relate to, or result from: (1) the performance of the Work; (2) any breach of the terms of the Subcontract; (3) bringing Regulated Materials onto or near the Project Site or adjacent sites (that are not specified or required to be utilized to complete the Work) or mishandling Regulated Materials; (4) termination of any Agreements or contracts under the Subcontract; (5) negligent, grossly negligent, or intentional acts, activities, or omissions of Subcontractor or its employees, representatives, sub-subcontractors, or agents, or any other person or entity directly or indirectly employed by it or for whose acts or omissions it may be liable; or (6) bodily injury, sickness, disease, or death to any person, or damage to property. Such obligations shall not be construed to negate, abridge, or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Section 10.1.
  1. COMPLIANCE WITH LAWS. The Subcontractor agrees to be bound by, and at its own cost, comply with all federal, state, and local laws, ordinances, and regulations (herein collectively referred to as “laws”) applicable to the Subcontractor’s Work including, but not limited to, equal employment opportunity, safety, and all other laws with which the Contractor must comply according to the Subcontract Documents. The Subcontractor shall be liable to the Contractor and the Owner for all loss, cost, and expense attributable to any acts of commission or omission by the Subcontractor, its employees, representatives, and agents, and any other person or entity directly or indirectly employed by them or for whose acts or omissions they may be liable, arising out of or resulting from the failure to comply therewith, including, but not limited to, any fines, penalties, or corrective measures.

ARTICLE 11 INSURANCE AND BONDS

  1. SUBCONTRACTOR’S REQUIRED INSURANCE COVERAGE. Prior to the start of its Work, Subcontractor shall, at its sole expense, purchase and maintain the insurance coverage set forth below, and any additional coverages required for a Project as set forth in a Purchase Order. The insurance required shall be written with insurance carriers licensed to do business in all states in which Work is performed and which have an AM Best Rating of A VII or better. The general liability insurance shall cover all labor, materials, and/or services furnished pursuant to a purchase order or change order and shall include a contractual liability endorsement. 
General LiabilityRequired LimitCoverage
$1,000,000Each Occurrence
$2,000,000General Aggregate
$1,000,000Product – Comp/Op Aggregate
$1,000,000Personal and Advertising Injury
AutoRequired LimitCoverage
$1,000,000Any Auto – Combined Coverage
Excess GL CoverageRequired LimitCoverage
$1,000,000Each Occurrence
$1,000,000Aggregate
Workers’ CompensationRequired LimitCoverage
$500,000Employer’s Liability – Each Accident
$500,000Employer’s Liability – Each Accident
$500,000Employer’s Liability – Each Accident
  1. For each Subcontract, coverages shall be maintained without interruption from the Date of Commencement of the Subcontractor’s Work until the date of final payment and until the expiration of the warranty period for correction of Work or for such other period for maintenance of completed operations coverage as specified in the Prime Contract.
  1. Certificates of Insurance. The Subcontractor shall provide Certificates of Insurance acceptable to the Owner and Contractor evidencing compliance with the coverage requirements set forth above and any additional requirements set forth in the Subcontract at the following times: (1) prior to commencement of the Subcontractor’s Work; (2) upon renewal or replacement of each required policy of insurance; and (3) upon the Contractor’s written request. The certificates shall show the Contractor and the Owner as additional insureds on the Subcontractor’s Commercial General Liability and any excess or umbrella liability policy. Subcontractor is not authorized and is hereby prohibited from accepting any purchase order or change order and performing any Work if for any reason Subcontractor does not have or maintain the requisite insurance coverage limits. As a condition precedent to the commencement of Work, Subcontractor shall furnish Contractor with a current certificate(s) of insurance (“COI”) accompanied by an additional insured endorsement for the general liability policy which names the following as additional insureds: Contractor, S2 AZ Construction Company LLC, Owner, S2C Management, LLC d/b/a S2 Residential, S2C FL Management, LLC, S2 NC Management LLC, and S2C TN Management LLC. The additional insureds endorsement shall not contain any exclusions. Any applicable excess/umbrella policies must be issued on a follow-form basis. All coverage shall be primary and non-contributory. In addition, a waiver of subrogation shall apply in favor of each additional insured referenced above on all policies as permitted by law.
  1. Failure to provide certificate of insurance and bond shall be ground for rescinding the Subcontract by Contractor or withholding payment of Subcontract Sum at Contractor’s election.
  1. Notice of Cancellation or Change in Coverage. Within three business days of the date the Subcontractor becomes aware of an impending or actual cancellation or expiration of any insurance required by the Subcontract Documents, the Subcontractor shall provide Notice to the Contractor. Upon receipt of Notice from the Subcontractor, the Contractor shall, unless the lapse in coverage arises from an act or omission of the Contractor, have the right to suspend the Work in accordance with this Master Agreement until the lapse in coverage has been cured by the procurement of replacement coverage by the Subcontractor. The furnishing of Notice by the Subcontractor shall not relieve the Subcontractor of any contractual obligation to provide any required coverage. Subcontractor acknowledges and agrees that neither Contractor nor Owner are required to pay for and are not in any other way liable (under any contractual, quasi-contractual, or other theory of liability) for any Work performed: (i) without a current COI and additional insured endorsement on file with Contractor or Owner that meets the requirements set forth herein; or (ii) during any period in which there is a lapse in the requisite insurance coverage.
  1. REQUIRED PERFORMANCE BOND AND PAYMENT BOND. The Subcontractor’s performance bond and payment bond obligations shall be as required in the Purchase Order.
  2. WAIVER OF SUBROGATION. The Contractor and Subcontractor waive all rights against each other and any of their subcontractors, sub-subcontractors, agents, and employees for causes of loss to the extent covered by the insurance obtained or issued pursuant to the Subcontract. The policies issued shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the damage or loss.

ARTICLE 12 GENERAL PROVISIONS

  1. NOTICES. All Notices or communications shall be in writing and shall be delivered in person, by mail, by courier, or via electronic transmission with a written confirmation from recipient of the receipt of such Notice. All Notices shall be deemed to be given on the date received.
  1. MUTUAL RIGHTS AND RESPONSIBILITIES. The Contractor and Subcontractor shall be mutually bound by the terms of this Master Agreement and, to the extent that the provisions of the Prime Contract apply to this Master Agreement and to the Work of the Subcontractor, the Contractor shall assume toward the Subcontractor all obligations and responsibilities that the Owner, under the Prime Contract, assumes toward the Contractor, and the Subcontractor shall assume toward the Contractor all obligations and responsibilities that the Contractor, under the Prime Contract, assumes toward the Owner and the Architect. The Contractor shall have the benefit of all rights, remedies, and redress against the Subcontractor that the Owner, under the Prime Contract, has against the Contractor, and the Subcontractor shall have the benefit of all rights, remedies, and redress against the Contractor that the Contractor, under the Prime Contract, has against the Owner, insofar as applicable to this Master Agreement. Where a provision of the Prime Contract is inconsistent with a provision of this Master Agreement, this Master Agreement shall govern.
  1. INCONSISTENCIES AND OMISSIONS. Should inconsistencies or omissions appear in the Subcontract Documents, it shall be the duty of the Subcontractor to so notify the Contractor in writing within three (3) working days of the Subcontractor’s discovery. Upon receipt of said Notice, the Contractor shall instruct the Subcontractor as to the measures to be taken and the Subcontractor shall comply with the Contractor’s instructions. If Subcontractor performs work knowing it to be contrary to any applicable laws, statutes, ordinances, building codes, rules, or regulations without Notice to Contractor and advance approval by appropriate authorities, including Contractor, then Subcontractor shall assume full responsibility for such Work and shall bear all associated costs, charges, fees, and expenses necessarily incurred to remedy the violation(s).
  2. SEVERABILITY. The invalidity of any provision of the Subcontract Documents shall not invalidate the Subcontract or its remaining provisions. If it is determined that any portion of the Subcontract violates any law or is otherwise invalid or unenforceable, then that provision shall be revised only to the extent necessary to make that provision legal and enforceable. In such case, the Subcontract shall be construed, to the fullest extent permitted by law, to give effect to the parties’ intentions and purposes in executing the Subcontract.
  1. GOVERNING LAW. This Agreement shall be governed and construed in accordance with the laws of the State of Texas, without regard to its conflicts of law or choice of law principles.
  1. PAY-WHEN-PAID. The Subcontractor hereby acknowledges that to the extent permitted by applicable law, payments are contingent upon the Contractor receiving payment from the Owner, and the Subcontractor expressly agrees to accept the risk that it will not be paid for Work performed if the Contractor, for whatever reason, is not paid by the Owner for such Work. The Subcontractor represents that payment for Work performed will be based primarily on the credit and ability to pay of the Owner, and not on that of the Contractor, and the Subcontractor agrees that payment by the Owner to the Contractor for Work performed by the Subcontractor shall be a condition precedent to any payment obligation for the Contractor to the Subcontractor.
  1. PRIVITY. Until final completion of the Project, the Subcontractor agrees not to perform any work, relating to the project, directly for the Owner or any tenants thereof, or deal directly with the Owner’s representatives in connection with the Project, unless otherwise directed in writing by the Contractor. All work for this Project performed by the Subcontractor shall be processed and handled exclusively by the Contractor.
  1. ELECTRONIC SIGNATURES. Contractor and Subcontractor agree that this Master Agreement, Purchase Orders, and any amendments or changes thereto requiring signature of the parties hereto may be signed electronically, in lieu or wet ink, and that such signatures shall not be denied legal effect or enforceability solely because they are electronic in nature. Electronic signature means one communicated by Contractor or Subcontractor, as applicable, in electronic mail or in any electronic form, sound, symbol, or process attached to or logically associated with the Purchase Order or other record document and executed and adopted by a person with intent to sign the record.

ARTICLE 13

SCOPE OF THIS MASTER AGREEMENT

  1. ENTIRE AGREEMENT. This Master Subcontract Agreement represents the entire and integrated Agreement between the Contractor and Subcontractor and supersedes all prior negotiations, representations, or any other agreements, either written or oral. This Master Agreement may be amended only by written instrument signed by both Contractor and Subcontractor.
  1. This Master Agreement is comprised of the following documents:
    1. Master Subcontract Agreement Between Contractor and Subcontractor;
    2. Prime Contract between the Owner and Contractor, including all exhibits thereto;
    3. Other documents, if any, forming part of the Agreement: Subcontract Documents referenced in Section 2.1 herein.