Disclaimers

August 9, 2016

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Terms and Conditions for Contractors

  1. TERM OF CONTRACT

The term of the Contract shall commence on the Effective Date (as defined below) and shall end on the Expiration Date identified in the Contract, subject to the other provisions of the Contract. The Effective Date shall be fixed by the Contracting Officer after the Contract has been fully executed by the Contractor and by Hot Mustard Advertising CC and all approvals required by Hot Mustard Advertising CC contracting procedures have been obtained. The Contract shall not be a legally binding contract until after the Effective Date is affixed and the fully-executed Contract has been sent to the Contractor. The Contracting Officer shall issue a written Notice to Proceed to the Contractor directing the Contractor to start performance on a date which is on or after the Effective Date. The Contractor shall not start the performance of any work prior to the date set forth in the Notice to Proceed and Hot Mustard Advertising CC shall not be liable to pay the Contractor for any service or work performed or expenses incurred before the date set forth in the Notice to Proceed. No agency employee has the authority to verbally direct the commencement of any work under this Contract. Hot Mustard Advertising CC reserves the right, upon notice to the Contractor, to extend the term of the Contract for up to three (3) months upon the same terms and conditions. This will be utilized to prevent a lapse in Contract coverage and only for the time necessary, up to three (3) months, to enter into a new contract.

  1. INDEPENDENT CONTRACTOR

In performing the services required by the Contract, the Contractor will act as an independent contractor and not as an employee or agent of Hot Mustard Advertising CC

  1. COMPLIANCE WITH LAW

The Contractor shall comply with all applicable laws and regulations and local ordinances in the performance of the Contract.

  1. ENVIRONMENTAL PROVISIONS

In the performance of the Contract, the Contractor shall minimize pollution and shall strictly comply with all applicable environmental laws and regulations.

  1. COMPENSATION/EXPENSES

The Contractor shall be required to perform the specified services at the price(s) quoted in the Contract. All services shall be performed within the time period (s) specified in the Contract. The Contractor shall be compensated only for work performed to the satisfaction of Hot Mustard Advertising CC.

  1. INVOICES

The Contractor shall send an invoice itemized by line item to the address referenced on the Service Level Agreement promptly after services are satisfactorily completed. The invoice should include only amounts due under the Service Level Agreement.

  1. PAYMENT

Hot Mustard Advertising CC shall put forth reasonable efforts to make payment by the required payment date. The required payment date is: (a) the date on which payment is due under the terms of the Service Level Agreement; (b) thirty (30) days after a proper invoice actually is received at the address if a date on which payment is due is not specified in the Service Level Agreement or c) the payment date specified on the invoice if later than the dates established by (a) and (b) above. Payment may be delayed if the payment amount on an invoice is not based upon the price(s) as stated in the Service Level Agreement. Payment should not be construed by the Contractor as acceptance of the service performed by the Contractor. Hot Mustard Advertising CC reserves the right to conduct further testing and inspection after payment, but within a reasonable time after performance, and to reject the service if such post payment testing or inspection discloses a defect or a failure to meet specifications.

  1. OWNERSHIP RIGHTS

Hot Mustard Advertising CC shall have unrestricted authority to reproduce, distribute, and use any submitted report, data, or material, and any software or modifications and any associated documentation that is designed or developed and delivered to Hot Mustard Advertising CC as part of the performance of the Contract.

  1. HOLD HARMLESS PROVISION

The Contractor shall hold Hot Mustard Advertising harmless from and indemnify Hot Mustard Advertising CC against any and all claims, demands and actions based upon or arising out of any activities performed by the and shall, at the request of Hot Mustard Advertising CC, defend any and all actions brought against Hot Mustard Advertising CC based upon any such claims or demands.

  1. AUDIT PROVISIONS

Hot Mustard Advertising CC shall have the right, at reasonable times and at a site designated by Hot Mustard Advertising Cc, to audit the books, documents and records of the Contractor to the extent that the books, documents and records relate to costs or pricing data for the Contract. The Contractor agrees to maintain records which will support the prices charged and costs incurred for the Contract. The Contractor shall preserve books, documents, and records that relate to costs or pricing data for the Contract for a period of three (3) years from date of final payment. The Contractor shall give full and free access to all records to Hot Mustard Advertising CC.

  1. Hot Mustard Advertising CC may, subject to the provisions of Paragraph 17, Force Majeure, and in addition to its other rights under the Contract, declare the Contractor in default by written notice thereof to the Contractor, and terminate (as provided in Paragraph 18, Termination Provisions) the whole or any part of this Contract for any of the following reasons:
  • Failure to begin work within the time specified in the Contract or as otherwise specified;
  • Failure to perform the work with sufficient labor, equipment, or material to ensure the completion of the specified work in accordance with the Contract terms;
  • Unsatisfactory performance of the work;
  • Failure or refusal to remove material, or remove and replace any work rejected as defective or unsatisfactory;
  • Discontinuance of work without approval;
  • Failure to resume work, which has been discontinued, within a reasonable time after notice to do so;
  • Insolvency or bankruptcy;
  • Assignment made for the benefit of creditors;
  • Failure or refusal within 10 days after written notice by the Contracting Officer, to make payment or show cause why payment should not be made, of any amounts due for materials furnished, labor supplied or performed, for equipment rentals, or for utility services rendered;
  • Failure to protect, to repair, or to make good any damage or injury to property; or
  • Breach of any provision of this Contract:
  1. In the event that Hot Mustard Advertising CC terminates this Contract in whole or in part as provided in Subparagraph a. above, Hot Mustard Advertising CC may procure, upon such terms and in such manner as it determines, services similar or identical to those so terminated, and the Contractor shall be liable to Hot Mustard Advertising CC for any reasonable excess costs for such similar or identical services included within the terminated part of the Contract.
  2. If the Contract is terminated as provided in Subparagraph a. above, Hot Mustard Advertising CC, in addition to any other rights provided in this paragraph, may require the Contractor to transfer title and deliver immediately to Hot Mustard Advertising CC in the manner and to the extent directed by the Issuing Office, such partially completed work, including, where applicable, reports, working papers and other documentation, as the Contractor has specifically produced or specifically acquired for the performance of such part of the Contract as has been terminated. Except as provided below, payment for completed work accepted by Hot Mustard Advertising CC shall be at the Contract price. Except as provided below, payment for partially completed work including, where applicable, reports and working papers, delivered to and accepted by Hot Mustard Advertising CC shall be in an amount agreed upon by the Contractor and Contracting Officer. Hot Mustard Advertising CC may withhold from amounts otherwise due the Contractor for such completed or partially completed works, such sum as the Contracting Officer determines to be necessary to protect Hot Mustard Advertising CC against loss.
  3. The rights and remedies of Hot Mustard Advertising CC provided in this paragraph shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Contract.
  4. Hot Mustard Advertising CC’s failure to exercise any rights or remedies provided in this paragraph shall not be construed to be a waiver by Hot Mustard Advertising CC of its rights and remedies in regard to the event of default or any succeeding event of default.
  5. Following exhaustion of the Contractor’s administrative remedies as set forth in Paragraph 19, the Contractor’s exclusive remedy shall be to seek damages in the Board of Claims.
  6. FORCE MAJEURE

Neither party will incur any liability to the other if its performance of any obligation under this Contract is prevented or delayed by causes beyond its control and without the fault or negligence of either party. Causes beyond a party’s control may include, but aren’t limited to, acts of God or war, changes in controlling law, regulations, orders or the requirements of any governmental entity, severe weather conditions, civil disorders, natural disasters, fire, epidemics and quarantines, general strikes throughout the trade, and freight embargoes.

The Contractor shall notify Hot Mustard Advertising CC orally within five (5) days and in writing within ten (10) days of the date on which the Contractor becomes aware, or should have reasonably become aware, that such cause would prevent or delay its performance. Such notification shall (i) describe fully such cause(s) and its effect on performance, (ii) state whether performance under the contract is prevented or delayed and (iii) if performance is delayed, state a reasonable estimate of the duration of the delay. The Contractor shall have the burden of proving that such cause(s) delayed or prevented its performance despite its diligent efforts to perform and shall produce such supporting documentation as Hot Mustard Advertising CC may reasonably request. After receipt of such notification, Hot Mustard Advertising CC may elect either to cancel the Contract or to extend the time for performance as reasonably necessary to compensate for the Contractor’s delay.

In the event of a declared emergency by competent governmental authorities, Hot Mustard Advertising CC by notice to the Contractor, may suspend all or a portion of the Contract.

  1. TERMINATION PROVISIONS

Hot Mustard Advertising CC has the right to terminate this Contract for any of the following reasons. Termination shall be effective upon written notice to the Contractor.

TERMINATION FOR CONVENIENCE: Hot Mustard Advertising CC shall have the right to terminate the Contract for its convenience if Hot Mustard Advertising CC determines termination to be in its best interest. The Contractor shall be paid for work satisfactorily completed prior to the effective date of the termination, but in no event shall the Contractor be entitled to recover loss of profits.

NON-APPROPRIATION: Hot Mustard Advertising CC’s obligation to make payments during any fiscal year succeeding the current fiscal year shall be subject to availability and appropriation of funds. When funds (state and/or federal) are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal year period, Hot Mustard Advertising CC shall have the right to terminate the contract. The contractor shall be reimbursed for the reasonable value of any nonrecurring costs incurred but not amortized in the price of the supplies or services delivered under this contract. Such reimbursement shall not include loss of profit, loss of use of money, or administrative or overhead costs. The reimbursement amount may be paid for any appropriations available for that purpose

TERMINATION FOR CAUSE: Hot Mustard Advertising CC shall have the right to terminate the Contract for Contractor default under Paragraph 16, Default, upon written notice to the

Contractor. Hot Mustard Advertising CC shall also have the right, upon written notice to the Contractor, to terminate the Contract for other cause as specified in this Contract or by law. If it is later determined that Hot Mustard Advertising CC erred in terminating the Contract for cause, then, at Hot Mustard Advertising CC’s discretion, the Contract shall be deemed to have been terminated for convenience under the Subparagraph 18.a.

  1. CONTRACT CONTROVERSIES

In the event of a controversy or claim arising from the Contract, the Contractor must, within six months after the cause of action accrues, file a written claim with the contracting officer for a determination. The claim shall state all grounds upon which the Contractor asserts a controversy exists. If the Contractor fails to file a claim or files an untimely claim, the Contractor is deemed to have waived its right to assert a claim in any forum.

The contracting officer shall review timely-filed claims and issue a final determination, in writing, regarding the claim. The final determination shall be issued within 120 days of the receipt of the claim, unless extended by consent of the contracting officer and the Contractor. The contracting officer shall send his/her written determination to the Contractor. If the contracting officer fails to issue a final determination within the 120 days (unless extended by consent of the parties), the claim shall be deemed denied. The contracting officer’s determination shall be the final order of the purchasing agency.

Within fifteen (15) days of the mailing date of the determination denying a claim or within 135 days of filing a claim if, no extension is agreed to by the parties, whichever occurs first, the Contractor may file a statement of claim with Hot Mustard Advertising CC Board of Claims. Pending a final judicial resolution of a controversy or claim, the Contractor shall proceed diligently with the performance of the Contract in a manner consistent with the determination of the contracting officer and Hot Mustard Advertising CC shall compensate the Contractor pursuant to the terms of the Contract.

ASSIGNABILITY AND SUBCONTRACTING

Subject to the terms and conditions of the terms, this Contract shall be binding upon the parties and their respective successors and assigns.

The Contractor shall not subcontract with any person or entity to perform all or any part of the work to be performed under this Contract without the prior written consent of the Contracting Officer, which consent maybe withheld at the sole and absolute discretion of the Contracting Officer.

The Contractor may not assign, in whole or in part, this Contract or its rights, duties, obligations, or responsibilities hereunder without the prior written consent of the Contracting Officer, which consent may be withheld at the sole and absolute discretion of the Contracting Officer.

Notwithstanding the foregoing, the Contractor may, without the consent of the Contracting Officer, assign its rights to payment to be received under the Contract, provided that the Contractor provides written notice of such assignment to the Contracting Officer together with a written acknowledgement from the assignee that any such payments are subject to all of the terms and conditions of this Contract.

For the purposes of this Contract, the term “assign” shall include, but shall not be limited to, the sale, gift, assignment, pledge, or other transfer of any ownership interest in the Contractor provided, however, that the term shall not apply to the sale or other transfer of stock of a publicly traded company.

Any assignment consented to by the Contracting Officer shall be evidenced by a written assignment agreement executed by the Contractor and its assignee in which the assignee

agrees to be legally bound by all of the terms and conditions of the Contract and to assume the duties, obligations, and responsibilities being assigned.

A change of name by the Contractor, following which the Contractor’s identification number remains unchanged, shall not be considered to be an assignment hereunder. The Contractor shall give the Contracting Officer written notice of any such change of name.

NONDISCRIMINATION/SEXUAL HARASSMENT CLAUSE

During the term of the Contract, the Contractor agrees as follows:

  • In the hiring of any employees for the manufacture of supplies, performance of work, or any other activity required under the Contract or any subcontract, the Contractor, subcontractor or any person acting on behalf of the Contractor or subcontractor shall not by reason of gender, race, creed, or color discriminate against any person who is qualified and available to perform the work to which the contract relates.
  • Neither the Contractor nor any subcontractor nor any person on their behalf shall in any manner discriminate against or intimidate any person involved in the services of the contract, the performance of work or any other activity required under the Contract on account of gender, race, creed, or color.
  • The Contractor and any subcontractors shall establish and maintain a written sexual harassment policy and shall inform their employees of the policy. The policy must contain a notice that sexual harassment will not be tolerated and employees who practice it will be disciplined
  • The Contractor shall not discriminate by reason of gender, race, creed, or color against any subcontractor or supplier who is qualified to perform the work to which the contract relates.
  • The Contractor and each subcontractor shall furnish all necessary employment documents and records to and permit access to its books, records, and accounts by the contracting officer and the Department of Trade and Industry and The Department of Labour for purposes of investigation to ascertain compliance with the provisions of this Nondiscrimination/Sexual Harassment Clause. If the Contractor or any subcontractor does not possess documents or records reflecting the necessary information requested, it shall furnish such information on reporting forms supplied by the contracting officer or the Bureau of Contract Administration and Business Development
  • The Contractor shall include the provisions of this Nondiscrimination/Sexual Harassment Clause in every subcontract so that such provisions will be binding upon each subcontractor.
  • Hot Mustard Advertising CC may cancel or terminate the Contract, and all money due or to become due under the Contract may be forfeited for a violation of the terms and conditions of this Nondiscrimination/Sexual Harassment Clause. In addition, the agency may proceed with debarment or suspension and may place the Contractor in the Contractor Responsibility File.

CONTRACTOR INTEGRITY PROVISIONS

For purposes of this clause only, the words “confidential information,” “consent,” “contractor,” “financial interest,” and “gratuity” shall have the following definitions.

  1. Confidential information means information that is not public knowledge, or available to the public on request, disclosure of which would give an unfair, unethical, or illegal advantage to another desiring to contract with Hot Mustard Advertising CC.
  2. Consent means written permission signed by a duly authorized officer or employee of Hot Mustard Advertising CC, provided that where the material facts have been disclosed, in writing, by prequalification, bid, proposal, or contractual terms, Hot Mustard Advertising CC shall be deemed to have consented by virtue of execution of this agreement.
  3. Contractor means the individual or entity that has entered into the Contract with Hot Mustard Advertising CC, including directors, officers, partners, managers, key employees and owners of more than a five percent interest.
  4. Financial interest means:
    1. Ownership of more than a five percent interest in any business; or
    2. Holding a position as an officer, director, trustee, partner, employee, or the like, or holding any position of management.
  5. Gratuity means any payment of more than nominal monetary value in the form of cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money, services, employment, or contracts of any kind.
  6. The Contractor shall maintain the highest standards of integrity in the performance of the Contract and shall take no action in violation of state or federal laws, regulations, or other requirements that govern contracting with Hot Mustard Advertising CC.
  7. The Contractor shall not disclose to others any confidential information gained by virtue of the Contract.
  8. The Contractor shall not, in connection with this or any other agreement with Hot Mustard Advertising CC, directly, or indirectly, offer, confer, or agree to confer any pecuniary benefit on anyone as consideration for the decision, opinion, recommendation, vote, other exercise of discretion, or violation of a known legal duty by any officer or employee of Hot Mustard Advertising CC.
  9. The Contractor shall not, in connection with this or any other agreement with Hot Mustard Advertising CC, directly or indirectly, offer, give, or agree or promise to give to anyone any gratuity for the benefit of or at the direction or request of any officer or employee of Hot Mustard Advertising CC.
  10. Except with the consent of Hot Mustard Advertising CC, neither the Contractor nor anyone in privity with him or her shall accept or agree to accept from, or give or agree to give to, any person, any gratuity from any person in connection with the performance of work under the Contract except as provided therein.
  11. Except with the consent of Hot Mustard Advertising CC, the Contractor shall not have a financial interest in any other contractor, subcontractor, or supplier providing services, labor, or material on this project.
  12. The Contractor, upon being informed that any violation of these provisions has occurred or may occur, shall immediately notify Hot Mustard Advertising CC in writing.
  13. The Contractor, by execution of the Contract and by the submission of any bills or invoices for payment pursuant thereto, certifies, and represents that he or she has not violated any of these provisions.
  14. The Contractor, upon the inquiry or request of Hot Mustard Advertising CC or any of that official’s agents or representatives, shall provide, or if appropriate, make promptly available for inspection or copying, any information of any type or form deemed relevant by Hot Mustard Advertising CC to the Contractor’s integrity or responsibility, as those terms are defined by Hot Mustard Advertising CC’s statutes, regulations, or management directives. Such information may include, but shall not be limited to, the Contractor’s business or financial records, documents or files of any type or form which refers to or concern the Contract. Such information shall be retained by the Contractor for a period of three years beyond the termination of the Contract unless otherwise provided by law.
  15. For violation of any of the above provisions, Hot Mustard Advertising CC may terminate this and any other agreement with the Contractor, claim liquidated damages in an amount equal to the value of anything received in breach of these provisions, claim damages for all expenses incurred in obtaining another Contractor to complete performance hereunder, and suspend the Contractor from doing business with Hot Mustard Advertising CC. These rights and remedies are cumulative, and the use or nonuse of any one shall not preclude the use of all or any other. These rights and remedies are in addition to those Hot Mustard Advertising CC may have under law, statute, regulation, or otherwise.
  16. CONTRACTOR RESPONSIBILITY PROVISIONS
  17. The Contractor’s obligations pursuant to these provisions are ongoing from and after the effective date of the contract through the termination date thereof.
  18. INTEGRATION

The Contract, including all referenced documents, constitutes the entire agreement between the parties. No agent, representative, employee or officer of either Hot Mustard Advertising CC or the Contractor has authority to make, or has made, any statement, agreement or representation, oral or written, in connection with the Contract, which in any way can be deemed to modify, add to or detract from, or otherwise change or alter its terms and conditions. No negotiations between the parties, nor any custom or usage, shall be permitted to modify or contradict any of the terms and conditions of the Contract. No modifications, alterations, changes, or waiver to the Contract or any of its terms shall be valid or binding unless accomplished by a written amendment signed by both parties. All such amendments will be made using appropriate forms.

  1. CHANGE ORDERS

Hot Mustard Advertising CC reserves the right to issue change orders at any time during the term of the Contract or any renewals or extensions thereof: 1) to increase or decrease the quantities resulting from variations between any estimated quantities in the Contract and actual quantities; 2) to make changes to the services within the scope of the Contract; 3) to notify the Contractor that Hot Mustard Advertising CC is exercising any Contract renewal or extension option; or 4) to modify the time of performance that does not alter the scope of the Contract to extend the completion date beyond the Expiration Date of the Contract or any renewals or extensions thereof. Any such change order shall be in writing signed by the Contracting Officer. The change order shall be effective as of the date appearing on the change order, unless the change order specifies a later effective date. Such increases, decreases, changes, or modifications will not invalidate the Contract, nor, if performance security is being furnished in conjunction with the Contract, release the security obligation. The Contractor agrees to provide the service in accordance with the change order. Any dispute by the Contractor in regard to the performance required under any change order shall be handled through “Contract Controversies”.

For purposes of this Contract, “change order” is defined as a written order signed by the Contracting Officer directing the Contractor to make changes authorized by Hot Mustard Advertising CC.