ADDENDUM TO ORDER TERMS AND CONDITIONS
THIS ADDENDUM TO TERMS AND CONDITIONS (THIS "ADDENDUM") IS APPLICABLE TO PURCHASE ORDER TRANSACTIONS FOR CONSTRUCTION SERVICES PROVIDED TO QUEST DIAGNOSTICS INCORPORATED ("QUEST") ON A STIPULATED SUM BASIS FOR LESS THAN $100,000.
1. BASIC DEFINITIONS
The term "Contract" means this Addendum, together with the Terms and Conditions and any Order. The term "Order" means any written purchase order, release, contract or agreement which attaches, incorporates, or otherwise references this Addendum. The term "Services" means the work and/or services described on an Order. The term "Seller" means any individual, corporation or other entity that is to supply Services pursuant to this Contract. The "Terms and Conditions" means the document entitled Providing Services to Quest Diagnostics and, if included, the document entitled Order Terms and Conditions, to which this Addendum is attached. Capitalized terms used in this Addendum and not otherwise defined shall have the defined meanings stated in the Order or Terms and Conditions.
2. SELLER'S SERVICE
2.1 Seller shall provide the Services according to the specifications set forth in the Order (the "Specifications"). The Services include all services implied thereby, incidental thereto or otherwise required to properly perform such Services.
2.2 When applicable law requires that portions of the Services be performed by licensed professionals, Seller shall provide those Services through the performance of qualified persons or entities duly licensed to practice their professions. Seller represents, covenants and agrees that any architect that is an employee or subcontractor of Seller and who will perform any design portion of the Services and all persons connected with such architect(s) are duly registered and licensed (as may be required) by the appropriate state or local board governing such profession.
If Services are provided on a Design-Build Basis:
2.3 Seller shall submit design documents to Quest at intervals appropriate to the design process for purposes of evaluation and approval by Quest. Design documents shall be based on the Specifications and shall consist of preliminary design drawings, outline specifications or other documents sufficient to establish the size, quality and character of the entire project contemplated by the Services (the "Project"), its architectural, structural, mechanical and electrical systems, and the materials and such other elements of the Project as may be appropriate (the "Design Documents"). Deviations from the Order and Specifications shall be disclosed in the Design Documents. All such Design Documents must be approved by Quest in writing. Seller shall incorporate Quest's suggestions where possible, whether or not they are referenced in the written approval of the Design Documents. When, in the professional judgment of the Seller, incorporation is not possible or not advisable, Seller shall inform Quest in writing as to the specific basis of that opinion. The Design Documents shall include in addition to architectural design information, coordinated and related engineering design documentation which defines the systems and components required for equipment support.
2.4 The Services, to the extent applicable, include normal engineering, consisting of structural, mechanical, civil, plumbing, electrical, fire protection, and other services as required to produce a complete set of documents which are fully delineated and suitable, for permitting and construction in the state and county where the Project site is located.
2.5 Upon Quest's written approval of the Design Documents, Seller shall provide construction documents for review and written approval by Quest. The construction documents shall set forth in detail the requirements for construction of the Project. The construction documents shall include drawings and specifications that establish the quality levels of materials and systems required. Deviations, if any, from the Order and Specifications shall be disclosed in writing. Construction documents may include drawings, specifications, and other documents and electronic data setting forth in detail the requirements for construction of the Work, and shall (i) be consistent with the intent of the Order and Specifications; (ii) provide information for the use of those in the building trades; (iii) include documents customarily required for regulatory agency approvals; and (iv) include drawings and specifications that establish in detail the quality levels of materials and systems required for the Project including, but not limited to, the work required for the architectural, structural, mechanical, electrical, civil, plumbing, life safety, sprinkler, service-connected equipment and site work.
3.1 Seller shall perform the Services in a timely manner to meet the schedule established in the Order by Quest, which schedule includes the planned duration and timeframe for Substantial Completion (as defined below) of the Services. Coordination with Quest and the Other Personnel (as defined below) to meet the schedule is of the essence.
3.2 Substantial Completion is the stage in the progress of the Services when the Services or designated portion thereof is sufficiently complete in accordance with the Contract so that Quest can utilize the Services for their intended use.
3.3 Substantial Completion shall not be deemed to occur, and the Services will not be considered suitable for Substantial Completion review, until all project systems included in the Services are operational as designed and scheduled; all designated or required governmental inspections and certifications have been made and posted; designated instruction of Quest's personnel in the operation of all systems have been completed; all final finishes of the Services are in place; the Services are available to Quest for use intended, subject to agreed correction and completion of Punch List items; and Seller has submitted to Quest the following for review and acceptance: (i) a certificate which states that the Services have been substantially completed in accordance with the Specifications; (ii) all equipment, system and material guarantee certificates (including Seller's general guarantee); (iii) all operation and maintenance manuals; (iv) all as built construction drawings; and (v) all subcontractor and Seller waiver of lien certificates accurately reflecting all payments made up to Substantial Completion.
3.4 When Seller considers that the Services, or a portion thereof which Quest agrees to accept separately, are Substantially Complete, Seller shall prepare and submit to Quest a comprehensive list of items which do not interfere with Quest's intended use but need to be completed or corrected prior to final payment (the "Punch List"). The Punch List shall also indicate the cost of completing the items on the Punch List (the "Punch List Cost"). Failure to include an item on such list does not alter the responsibility: (i) of Seller to complete all Services in accordance with the Contract; or (ii) of Quest to pay for such Services.
3.5 Upon receipt of the Punch List, Quest will make an inspection to determine whether the Services or designated portion thereof is substantially complete. If the inspection discloses any item, whether or not included on the Punch List, which is, in Quest's opinion, not sufficiently complete in accordance with the Contract so that Quest can utilize the Services or designated portion thereof for its intended use, Seller shall, before the Services can be considered Substantially Complete, complete or correct such item upon notification by Quest. In such case, Seller shall then submit a request for another inspection by Quest to determine Substantial Completion. Any items discovered by Quest during the inspection which are not on the Punch List but should be included thereon shall be added by Quest and an updated Punch List will be provided to Seller. Should Quest disagree with the estimated Punch List Cost provided by Seller, Quest shall so indicate the same in writing to Seller, and Seller and Quest shall in good faith negotiate the Punch List Cost.All Punch List Items shall be completed within thirty (30) days of Substantial Completion.
4. SELLER'S DUTIES AND PERSONNEL.
4.1 Seller shall collaborate and cooperate with all personnel and other consultants (if any) retained by Quest (collectively, the "Other Personnel") in connection with the Project and shall perform the Services so that they will be coordinated with that of Quest and Other Personnel. Seller also shall grant Other Personnel access to its work in progress and cooperate with the Other Personnel throughout the performance of its work so that the Project may be completed expeditiously, economically and in furtherance of Quest's interest.
4.2 Seller will be responsible for the supervision, control, compensation, withholdings, health and safety of Seller's employees, agents, consultants and subcontractors ("Seller Personnel"). Quest shall have the right, at any time, to request removal of any Seller Personnel whom Quest deems to be unsatisfactory. Upon such request, Seller shall promptly replace such Seller Personnel with substitute individuals having appropriate skills and training.
4.3 Notwithstanding anything to the contrary contained in the Contract, the parties hereby acknowledge and agree that Quest shall have no right to control the manner, means or method by which Seller performs its Services. Rather, Quest shall be entitled only to direct Seller with respect to the elements of the Services to be performed by Seller and the results to be derived by Quest, to inform Seller as to where and when such Services shall be performed and to review and assess the performance of such services by Seller for the limited purposes of assuring that such Services have been performed and confirming that such results are satisfactory.
4.4 Seller represents that it has carefully examined and understands the applicable drawings and design documents for the Project site and Services, has thoroughly investigated the planned nature, locality, and site of the Services and the conditions and difficulties under which it is to be performed, and that it accepts the Contract on the basis of its own examination, investigation, and evaluation of all such matters and not in reliance upon any opinions or representations of Quest or its officers, agents, servants, or employees. Seller represents that the drawings and design documents provided by Quest are sufficiently complete and detailed to perform the Services to produce Quest's intended results at the cost, within the time, and otherwise fully in compliance with the requirements of the Contract.
4.5 If conditions are encountered at the Project site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Specifications and are not conditions which were disclosed to Seller through reports provided by or discussions with Quest prior to the commencement of the Services, or are not conditions which could have been reasonably discovered during Seller's site investigation of the nature, locality, and site of the Services and the conditions and difficulties under which it is to be performed, prior to the commencement of the Services, or (2) unknown physical conditions of an unusual nature which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Specifications, and are not conditions which could have been reasonably discovered during Seller's site investigation of the nature, locality, and site of the Services and the conditions and difficulties under which it is to be performed, prior to the commencement of the Services, then the Seller shall give notice to Quest promptly before conditions are disturbed and in no event later than 10 business days after first observance of the conditions. Quest may investigate such conditions and, if they differ materially and cause an increase or decrease in the Seller's cost of, or time required for, performance of any part of the Services, may negotiate with the Seller an equitable adjustment in the price for the Services or the schedule, or both, or Quest may elect to terminate the Contract. If Quest determines that the conditions at the site are not materially different from those indicated in the Specifications and that no change in the terms of the Contract is justified, Quest shall so notify the Seller in writing, stating the reasons. Claims by the Seller in opposition to such determination must be made within 10 business days after Quest has given notice of the decision.
4.6 Seller shall supervise and direct the Services, using Seller's best skill and attention. Seller shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Services, unless expressly provided otherwise herein.
4.7 Seller shall perform, and have its subcontractors perform, all of the Services in a manner that will not disturb or interfere with the use or occupancy of the Project site by Quest or any tenants of the building of which the Project site is a part or any other construction activities at the Project site.
4.8 Seller and its subcontractors shall take all reasonably necessary safety precautions, including compliance with applicable laws, ordinances, regulations, and orders issued by a public authority, whether federal, state, or local. Seller will be responsible for providing a safe Project site at all times and for the safety of all employees, personnel, equipment and materials within the care, custody, or control of Seller or its subcontractors. Seller and its subcontractors will furnish all required safety equipment and ensure that all employees and personnel at the Project site have and wear personal protective equipment in compliance with applicable safety requirements.
4.9 Seller's duties as set forth herein shall at no time be in any way diminished by reason of any approval by Quest of the Specifications or Services nor shall Seller be released from any liability by reason of such approval by Quest, it being understood that Quest at all times is ultimately relying upon Seller's skill and knowledge in completion of the Services.
4.10 Seller shall secure and pay for any permits, fees, licenses and inspections by government agencies necessary for proper execution and completion of the Services that are customarily secured after execution of the Contract and legally required.
4.11 Seller shall comply with and give notices required by applicable laws, statutes, ordinances, codes, rules, and regulations, and lawful orders of public authorities applicable to performance of the Services. If Seller performs Services contrary to applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, Seller shall assume appropriate responsibility for such Services and shall bear the costs attributable to correction.
4.12 Seller shall confine operations at the Project site to areas permitted by applicable laws, statutes, ordinances, codes, rules and regulations, lawful orders of public authorities, and the Contract and shall not unreasonably encumber the site with materials or equipment.
4.13 Seller shall review for compliance with the information provided to Seller by Quest and submit to Quest and its contractors shop drawings, product data, samples and similar submittals required by the Specifications in coordination with the schedule set forth in the Order and in such sequence as to allow Quest reasonable time for review. By submitting shop drawings, product data, samples and similar submittals, Seller represents to Quest that Seller has (i) reviewed and approved them; (ii) determined and verified materials, field measurements and field construction criteria related thereto, or will do so; and (iii) checked and coordinated the information contained within such submittals with the requirements of the Services and of the Contract. The Services shall be in accordance with approved submittals.
4.14 Tests, inspections and approvals of portions of the Services required by the Contract or by applicable laws, statutes, ordinances, codes, rules and regulations or lawful orders of public authorities shall be made at an appropriate time. Unless otherwise provided, Seller shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to Quest, or with the appropriate public authority, and shall bear all related costs of tests, inspections and approvals. Seller shall give Quest timely notice of when and where tests and inspections are to be made so that Quest may be present for such procedures. Quest shall bear costs of (i) tests, inspections or approvals that do not become requirements until after bids are received or negotiations concluded, and (ii) tests, inspections or approvals where building codes or applicable laws or regulations prohibit Quest, as owner, from delegating the costs to Seller, as contractor or design-builder, as the case may be.
4.15 Seller shall maintain accurate and detailed books, records and diaries of the names and hours of work of all its personnel performing the Services. These books, records and diaries shall be open to inspection and audit by Quest or Quest's authorized representatives during normal business hours, and shall be kept by Seller for a period of seven (7) years after completion of the Services.
4.16 Seller shall keep the Project site and surrounding area free from accumulation of waste materials or rubbish caused by Seller's operations. When the Services are completed, Seller shall remove waste materials, rubbish, Seller's tools, construction equipment, machinery and surplus material from and about the Project site. If Seller fails to so clean up within two (2) days after having received a written notice from Quest specifying such failure, Quest may do so and the cost thereof shall be charged to Seller, who shall pay such cost immediately upon demand of Quest. If Seller fails to pay such costs promptly, Quest may offset such costs against payments due to Seller.
5. PAYMENT TERMS.
5.1 Based upon monthly invoices submitted to Quest by Seller, Quest shall make progress payments on account of the price for the completed Services to Seller as provided herein. Each invoice shall show the percentage of completion of the Services as of the end of the immediately preceding month. A ten percent (10%) retainage will be withheld from progress payments until the final payment is due and payable.
5.2 Each invoice submitted by Seller shall be accompanied by the following, all in form and substance satisfactory to Quest: (i) a duly executed and acknowledged sworn statement showing all subcontractors with whom the Seller has entered into subcontracts, the amount of each such subcontract, the amount requested for any subcontractor in the invoice and the amount to be paid to Seller from such invoiced payment, together with similar sworn statements from all subcontractors, where available; and (ii) duly executed waivers of mechanics' and material men's liens establishing payment or satisfaction of all such obligations.
5.3 Final payment shall be made by Quest to Seller when (i) the Services, including Punch List Items, have been fully performed by Seller except for the Seller's responsibility to correct defective or nonconforming Services, as provided in the Contract (ii) a final invoice and all required supporting documentation have been submitted by Seller and reviewed and reasonably approved by Quest; (iii) Seller has submitted all necessary paperwork from all pertinent governmental agencies (if required) which will enable Quest to procure a final approval from such governmental agencies; and (iv) all other requirements of the Contract have been fulfilled. Provided such preconditions have been satisfied, final payment shall be made by Quest not more than thirty (30) days after receipt of Seller's final invoice.
5.4 Prior to final payment, Seller shall furnish Quest with the following: (i) all maintenance and operating manuals as set forth in the Specifications; (ii) shop drawings reflecting "as built" conditions for concealed work; and (iii) all original guarantees and warranties from subcontractors, vendors, suppliers and manufacturers properly completed in Quest's name or valid assignments and/or transfers thereof either where permitted or consented to by the insurers where required.
6. CHANGE ORDERS Quest shall have the right to authorize or direct the making of such changes to the designs, work or materials to be used by Seller in connection with the Services as Quest shall from time to time determine to be appropriate. Within a reasonable time after receipt of such request for change which shall not exceed five (5) business days, Seller shall notify Quest of the cost and change in schedule, if any, due to such requested change. If acceptable to Quest, the parties shall execute a written amendment to the Contract confirming their agreement with such change, the cost, and schedule adjustment, if any. Seller shall not commence any change in Services until Quest signs such written amendment.
7. QUEST'S RIGHT TO CARRY OUT THE SERVICES. If Seller defaults or neglects to carry out the Services in accordance with the Specifications and fails within a seven (7) day period after receipt of written notice from Quest to commence and continue correction of such default or neglect with diligence and promptness, Quest, without prejudice to any other remedy Quest may have, may immediately correct such deficiencies and deduct the reasonable cost thereof from the payment then or thereafter due the Seller.
8. CONSTRUCTION AND MECHANIC'S LIENS. Seller shall at all times keep the Project site free and clear of any and all construction and mechanics liens, of any kind and character whatsoever, arising from, or in any manner whatsoever attributable to, work performed on or in connection with the Services at the Project site due to any work performed by it or any subcontractor, and shall take such action as Quest may reasonably request to promptly discharge any such construction or mechanics liens which may be placed on the Project site by any contractor, subcontractor, supplier or laborer, providing goods or services to Seller or any subcontractor. Seller shall defend, indemnify and hold Quest harmless from and against all claims, actions, judgments, costs and expenses (including actual reasonable attorney's fees and expenses) asserted against or incurred by Quest as a result of the assertion of any construction or mechanics lien or of any right to obtain the same on or in respect of the Project site by any subcontractor, supplier or laborer performing work or providing services to Seller or any subcontractor. Upon request, Seller shall prepare and deliver to Quest such sworn statements and waivers with respect to work performed by it and any of its subcontractors as Quest may from time to time reasonably request.
9. ON-PREMISES GUIDELINES.
9.1 Seller will ensure that Seller Personnel assigned to work on Quest's premises will: (i) to the extent permitted by local law, participate in a pre-employment criminal background check covering the counties in which the person was employed or resided for the past seven years (or longer as required by State legislation), and inform Quest of any negative findings; (ii) maintain a current and complete list of the persons' names and social security numbers; (iii) obtain for each person a valid identification badge from Quest and ensure that it is displayed to gain access to and while on Quest's premises (it is Quest's policy to deactivate any such badge if not used for one month); (iv) maintain a signed acknowledgement that each person will comply with Quest's On-Premises Guidelines set forth herein, including the search guidelines; (v) ensure that each person with regular access to Quest's premises registers their vehicles with Quest and complies with all parking restrictions and with vehicle registration requirements, if any; (vi) inform Quest if a former employee of Quest will be assigned work under the Contract, such assignment subject to Quest approval; (vii) at Quest's request, remove a person from Quest's premises and not reassign such person to work on Quest's premises (Quest is not required to provide a reason for such request) and (viii) notify Quest immediately upon completion or termination of any assignment and return Quest's identification badge. Upon Quest's request, Seller will provide documentation to verify compliance with this Section.
9.2 Seller will ensure that Seller Personnel assigned to work on Quest's premises: (i) will not conduct any non-Quest related business activities (such as interviews, hirings, dismissals or personal solicitations) on Quest's premises; (ii) will not conduct Seller Personnel training on Quest's premises, except for on-the-job training, (iii) will not attempt to participate in Quest benefit plans or activities; (iv) will not send or receive non-Quest related mail through Quest's mail systems and (v) will not sell, advertise or market any products or distribute printed, written or graphic materials on Quest's premises without Quest's written permission.
9.3 Seller will ensure that Seller Personnel assigned to work on Quest's premises: (i) do not bring weapons of any kind onto Quest's premises; (ii) do not manufacture, sell, distribute, possess, use or be under the influence of controlled substances (for non-medical reason) or alcoholic beverages while on Quest's premises; (iii) do not have in their possession hazardous materials of any kind on Quest's premises without Quest's authorization; (iv) acknowledge that all persons, property, and vehicles entering or leaving Quest's premises are subject to search and (v) remain in authorized areas only (limited to the work locations, cafeterias, rest rooms and, in the event of a medical emergency, Quest's medical facilities). Seller will promptly notify Quest of any accident or security incidents involving loss of or misuse or damage to Quest's intellectual or physical assets, physical altercations, assaults or harassment and provide Quest with a copy of any incident report involving the above. Seller must coordinate with Quest access to Quest's premises during non-regular working hours.
9.4 In the event Seller Personnel have access to information, information assets, supplies or other property, including property owned by third parties but provided to Seller Personnel by Quest (collectively, "Quest Assets"), Seller will ensure that Seller Personnel: (i) will not remove Quest Assets from Quest's premises without Quest's authorization; (ii) will use Quest Assets only for purposes of the Services and reimburse Quest for any unauthorized use; (iii) will only connect with, interact with or use programs, tools or routines that Quest agrees are needed to provide Services; (iv) will not share or disclose user identifiers, passwords, cipher keys or computer dial port telephone numbers and (v) in the event the Quest Assets are confidential, will not copy, disclose or leave such assets unsecured or unattended. Quest may periodically audit Seller's data residing on Quest Assets.
9.5 Seller will provide management direction to Seller Personnel provided under the Contract, at no additional cost to Quest. The person Seller designates to provide such personnel management shall have full supervisory authority over all day-to-day employment relationship decisions relating to Seller Personnel, including those decisions relating to: wages, hours, terms and conditions of employment, hiring, discipline, performance evaluations, termination, counseling and scheduling. Seller's designee responsible for each work location will be responsible to know that work location's planned holiday (and other closing) schedules and the impacts all such schedules have on Seller Personnel. Seller will conduct orientation sessions with Seller Personnel before placement on an assignment with Quest, during which orientation such Seller Personnel will be told who at Seller is responsible for enforcement of this Section and how that person can be contacted. Seller will, from time to time, ensure that all of its Seller Personnel working under the Contract will continue to be aware of this information. Seller shall indemnify, defend and hold harmless Quest and its directors, officers and employees (collectively, "Indemnitees") from and against any damages, liability and costs (including reasonable attorney's fees) relating to or arising out of any assertion that an Indemnitee should be deemed the "employer" or "joint employer" of any Seller Personnel.
10. ORDER OF PRECEDENCE. The various documents constituting the Contract shall insofar as possible, be so interpreted as to be consistent with one another. In the event of a conflict, ambiguity, or inconsistency, the following order of precedence shall apply: (i) the latest change order to the Contract, (ii) the Order, as amended, (iii) this Addendum, and (iv) the Terms and Conditions.