OURAY Environmental Services, LLC
Subcontractor Authorization to Begin Work Terms and Conditions (“Terms”)
1. If Ouray Environmental Services, LLC (“Ouray") and Subcontractor have concluded a “Subcontractor Agreement for Emergency Response Services” or similar subcontractor or supplier agreement for the provision of services to Ouray or if the Subcontractor agrees to provide services to or for Ouray and is provided notice of these Terms (“Agreement”). The Subcontractor is subject to these Terms, and the Agreement and other documents incorporated by reference are incorporated in their entirety herein by reference.
2. Subcontractor shall furnish the labor, equipment, materials, tools, supervision, and services required to perform the Work described in a duly authorized Work Authorization and at the direction of Ouray. (“Services”) Subcontractor shall comply with all Federal, State/Provincial, and Local laws, rules, regulations, treaties, and conventions governing the Work. Subcontractor agrees to perform the Work in accordance with the rates set forth in the Agreement. Or the Subcontractor’s most up-to-date rate sheet or quotation that it has provided to Ouray.
3. Subcontractor agrees that it is hereby not an employee or an entity that is part of Ouray, or any of Ouray’s affiliates, and shall not portray or communicate to any Client, potential client, contractor, government official, or in any communication that it is Ouray or part of any Ouray affiliate, unless expressly authorized in writing by Ouray’s executive personnel.
4. If providing Emergency Response Services or other related services, Subcontractor’s response team leader or other authorized representative must contact the Ouray project manager by telephone both as the response team departs their location and immediately upon arrival at the project site and then routinely thereafter on a time schedule established by the Ouray project manager. The initial arrival call shall inform the Ouray project manager of known existing site conditions and any unforeseen personnel or equipment requirements. Personnel and equipment authorized for this project are identified in the Work Authorization. Any changes to the personnel and equipment levels authorized in the Work Authorization must be specifically approved in writing by the Ouray project manager prior to implementation.
5. Subcontractor shall respond from the geographic location designated by Ouray in the Work Authorization. Any personnel or equipment mobilized from any location other than that designated by Subcontractor shall have specific prior approval of Ouray or shall be invoiced as if mobilized from the initial geographic response location designated by Ouray.
6. Subcontractor shall provide Ouray with all such documentation required as indicated in the Work Authorization and relevant Agreement. Field notes and captioned photographs must clearly identify and document the root cause of the incident. For example, the Subcontractor may indicate in writing “nail on pallet punctured the bottom of container causing the contents to leak out” and provide photographic evidence supporting the cause of the leak.
7. Invoices received by Ouray more than forty-five (45) days after either the end of each month or completion of a response will only be paid to the extent such invoices can be included in Ouray’s invoice to its Client. Invoices will not be processed for payment until the Ouray project manager has received all the required supporting documentation. Each invoice and all supporting documentation submitted by the Subcontractor must be a complete, stand-alone package and must reference the Ouray Purchase Order Number(s) listed in the Work Authorization or order confirmation.
1. If an invoice is not received before 90-days after the completion of the project, Ouray may deem any invoice from this project as non-payable.
8. Ouray will only process payment for “Payable Invoices” that include a full billing packet. Invoices shall be denied and will not be processed unless the following documents are provided with Suppliers invoice:
1. A “Payable Invoice” means an invoice that is complete, administratively correct, supported by all such documentation, including the following, if applicable:
a. Photographs and or digital images, daily logs, daily personnel sheets, onsite logs, signed daily logs or project report/ field notes, waste profiles, analytical reports, waste disposal documents, and other such documentation necessary to support charges included on each invoice.
b. Each invoice and all supporting documentation must be a complete, stand-alone package, and must reference the applicable Ouray Purchase Order Number cited on the “Work Authorization” and any duly authorized change order.
9. Subcontractor shall reference both the Ouray Purchase Order Number(s) and the physical address or the location of the project site on all field notes, waste profiles, waste disposal documents, analytical reports, shipping tickets, manifests, and bills of lading. Ouray will provide the Subcontractor with the waste generator information necessary to complete all documents.
10. All amounts payable by Ouray exclude amounts in respect of value added tax (VAT) OR goods and services tax (GST) AND/OR other sales tax (Sales Tax), which Ouray shall additionally be liable to pay to the Subcontractor at the prevailing rate (if applicable), subject to receipt of a valid VAT OR GST OR Sales Tax invoice.
11. The Subcontractor shall submit invoices for the Charges plus VAT OR GST OR Sales Tax if applicable to Ouray, within 45 days of performance of the Services OR at the intervals specified in a duly authorized Work Authorization. Each invoice shall include all supporting information reasonably required by Ouray.
12. Ouray shall provide the best available site-specific information regarding its requirements for the Work and shall communicate in a timely manner to the Subcontractor any new information which becomes available or any change in services requested. Ouray shall communicate to the Subcontractor any special hazards or risks involved in the Work of which it becomes aware. Ouray’s duty to inform Subcontractor of known hazards or risks shall not relieve Subcontractor of its independent obligations and duties to perform in accordance with all applicable Federal, State or Local laws, rules, and regulations.
13. The performance of emergency response services is, by its very nature, inherently dangerous and may involve exposure to reactive, flammable, volatile, or otherwise hazardous substances or wastes. In recognition of this, while its employees or subcontractors are on the site of the emergency incident Subcontractor shall maintain strict discipline and perform all Services in strict compliance with all applicable Federal, State, and Local laws, rules, and regulations, including, without limitation, the requirements of the Fair Labor Standards Act, the Occupational Safety and Health Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response Compensation and Liability Act the Hazardous Materials Transportation Act, and the Occupational Safety and Health Framework Directive of 1989.
14. Subcontractor warrants that its conduct of Services of the Work will conform to the standards of care, skill, and diligence normally observed by professionals in the performance of similar Services as of the time Subcontractor provides such Services. Subcontractor agrees to make, at its own expense, all repairs, and replacements required by the failure of materials, mishandling of product, or negligent workmanship supplied by Subcontractor which becomes evident within one (1) year after the date of completion of the Services.
15. Subcontractor shall erect and properly maintain, as required by the conditions and progress of the Services, all necessary safeguards for the protection of its employees and the public. Subcontractor shall furnish Ouray such evidence of compliance as Ouray may from time to time reasonably require.
16. Subcontractor acknowledges and agrees that Ouray, at its sole discretion, may expand, modify and/or discontinue Subcontractor’s services as requested and described in the Work Authorization. However, in the case of discontinuance, Ouray acknowledges and agrees that appropriate demobilization charges may still apply.
17. Regardless of the information provided by Ouray, Subcontractor shall take necessary precautions for the safety of its employees and shall comply with all applicable provisions of Federal, State and Local laws, rules, and regulations.
18. Subcontractor shall immediately, or as soon as possible, report to Ouray all accidents involving personal injury or property damage arising out of, or in connection with, the performance of the Services.
19. Confidentiality is required. Subcontractor and all personnel associated with Subcontractor shall hold in confidence and not disclose information or opinions concerning the Work, the project site, or any other information given to or obtained by Subcontractor without the prior written consent of Ouray unless otherwise required by law. In no event shall Subcontractor or any personnel associated with Subcontractor speak with any media representative without the prior written consent of Ouray Subcontractor shall promptly notify Ouray in the event of a request, demand or subpoena for information or opinions concerning the Work so that Ouray has the opportunity, but not the obligation, to respond to or defend against the request, demand, or subpoena.
20. Subcontractor hereby agrees to fully indemnify, defend and hold harmless Ouray, its Client, and both of their officers, directors, employees, shareholders, subsidiaries, affiliates, and/or agents from and against any and all claims, demands, actions, liability, damages, penalties, costs, expenses, proceedings or investigations, whether judicial or administrative in nature, including, without limitation, costs of defense, settlement and reasonable attorneys’ fees (hereinafter referred to as the “Claims”) which Subcontractor, Ouray or Client may incur, become responsible for, or pay as a result of:
1. Any violation of any environmental, health, and safety laws or other applicable laws or regulations by Subcontractor or its employees, contractors, subcontractors, or agents; and/or
2. Any negligent act or omission or willful misconduct by Subcontractor or its employees, contractors, subcontractors, or agents.
21. Subcontractor, including all officers, directors, employees, subcontractors, agents, and/or representatives shall treat all business information furnished pursuant to the Work as confidential and proprietary. Any information, whether verbal or written, including any technical information which may come within the knowledge of the Parties, their officers, employees, subcontractors, agents, and/or representatives in the performance of the Work, shall not be disclosed without, in each instance, securing the prior consent of the other Party.
22. Subcontractor shall treat as confidential and shall not disclose to others, except as required by law, any information relating to the chemical composition and quantity of materials dealt with in the performance of the Work.
23. Nothing contained within this Article shall prevent either Subcontractor or Ouray from disclosing to others or using, in any manner, information which either Party can show as being available in the public domain or in either Party’s possession prior to the project.
24. Subcontractor agrees that during the performance of the Work and for a period of one (1) year after the completion of the services Subcontractor shall neither directly nor indirectly, approach, engage, or solicit any subcontractor, worker, or employee of Ouray utilized on a Client project where Subcontractor has performed pursuant to a Purchase Order, request for services, or Work Authorization unless the Subcontractor has a previously existing relationship with said subcontractor.
25. Subcontractor agrees that during the performance of the Work and for a period of one (1) year after completion of services, Subcontractor shall neither directly nor indirectly solicit business from the Client, nor shall it conduct any business with the Client which is in direct competition with the services provided by Ouray to the Client, except for work that is solicited by the Client on a competitive basis. Said business shall include but not be limited to, hazardous and non-hazardous waste transportation and disposal, emergency response services, site investigation and remediation, lab pack services, clandestine lab cleanup, and industrial maintenance services. If Subcontractor breaches this provision and legal action is initiated by Ouray to enforce these Terms and Conditions or to seek damages for Subcontractor’s violation of the provisions of these Terms and Conditions, Ouray shall be entitled to recover from Subcontractor all legal costs and expenses, including reasonable attorney fees incurred by Ouray to define, determine, and enforce its rights under this agreement even if this section is later determined to be unenforceable or otherwise invalid.
26. Subcontractor shall at no time, without the prior written consent of Ouray, delegate, subcontract, or assign the performance of the Services or any portion thereof, which are by these Terms, a Work Authorization, a request for services, a Purchase Order, and the Agreement undertaken by Subcontractor. Any such delegation, subcontract, or assignment shall not operate to relieve Subcontractor of its responsibilities hereunder or under the Agreement and Work Authorization; and notwithstanding any such delegation, subcontract, or assignment, Subcontractor shall remain obligated to Ouray in these undertakings. Unless such delegation, subcontract, or assignment was consented to by Ouray in writing, Ouray may treat the delegation, subcontract, or assignment as void.
27. Should any provision of these Terms and Conditions on the one hand conflict with the “Subcontractor Agreement for Emergency Response Services,” or similar subcontractor or supplier agreement for the provision of services to Ouray on the other hand, the latter shall control.
28. Intellectual Property.
1. Subcontractor shall retain its ownership of the intellectual property that it owned prior to entering a Supplier Contract (“Background IP”) with Ouray; however, any intellectual property that Subcontractor develops for Ouray or any of its Customers, Affiliates, or Suppliers or is reasonably related to or arises from any Work performed under an Agreement which references these Terms shall be owned exclusively by Ouray.
As used in these Terms, the term “Development” means any idea, development, technique, modification, process, or improvement (whether patentable or not), any industrial design (whether registerable or not), any mask work, however fixed or encoded, that is suitable to be fixed, embedded or programmed in a semiconductor product (whether recordable or not), and any work of authorship (whether or not copyright protection may be obtained for it) created, conceived, or developed by Service Provider, either solely or in conjunction with others, during the term of an Agreement with Ouray, or a period that includes a portion of the term of an Agreement with Ouray, in connection with providing the Services.
Subcontractor shall not use or permit the use by any employee or third-party contractor of Subcontractor of Ouray’s name, logo, or likeness in any public, advertising, marketing material. Subcontractor also agrees that damages arising from a breach of this section are difficult to quantify, thus, Subcontractor’s breach of this section shall incur $30,000 in damages per breach. In addition, Subcontractor shall pay Ouray for all reasonable costs and attorney’s fees Ouray incurred because of a breach of this section.
Ownership and Use of Intellectual Property. Each Development (developed for the Ouray or as described and defined above) will belong exclusively to Ouray. Subcontractor acknowledges that all Developments are works “made for hire” under the relevant copyright law and are the sole and exclusive property of Ouray, including any copyrights, patents or other intellectual property rights pertaining thereto. If it is determined that any Developments are not works made for hire, Subcontractor hereby assigns to Ouray (and agrees to execute and deliver any other documents deemed necessary or reasonably desirable to so assign) all of Service Provider’s right, title, and interest, including all rights of copyright, patent, and other intellectual property rights, to or in such Developments. Subcontractor grants Ouray an irrevocable, royalty-free license to use any of its Background IP that Ouray must use to obtain the full benefit of the Services paid for under an Agreement with Ouray and these Terms, including the use of any deliverables provided as part of the Services. Subcontractor further agrees that it will promptly: (i) disclose to Ouray in writing any Development; (ii) assign to Ouray or to a party designated by Company, at Ouray’s request and without additional compensation, all of Service Provider’s right to the Development; (iii) execute and deliver to Ouray such applications, assignments, and other documents as Ouray may reasonably request in order to apply for and obtain patents or other registrations with respect to any Development; (iv) sign all other papers reasonably necessary to carry out the above obligations; and (v) give testimony and render any other reasonable assistance in support of the rights of Ouray to any Development.
29. Mandatory Policies
Modern Slavery and Human Trafficking.
Ouray has a zero-tolerance approach to modern slavery and human trafficking, and we are committed to ensuring that modern slavery or human trafficking does not exist in our supply chains or in any part of our business activities. Modern slavery and human trafficking are crimes and violate human rights. To ensure all those in our supply chain and contractors comply with our practices, suppliers and contractors must adhere to certain requirements that help Ouray to combat modern slavery and human trafficking. Suppliers, Service Providers, and contractors must permit Ouray to conduct an audit of the supplier or contractor, upon request. Ouray encourages anonymous reporting of potential concerns related to modern slavery and human trafficking through our confidential and anonymous whistleblowing reporting system. All suppliers and contractors must communicate this system to its staff and workers. Additionally, Ouray has trained and communicated this policy and “red flags,” that may identify violations of our policy to our workers and employees.
Export Control and Security Policy.
Ouray is subject to United States of America and other international export control laws and regulations, including sanctions enforced by the Office of Foreign Asset Controls (OFAC), the International Traffic in Arms Regulations (ITAR), and the Export Administration Regulations (EAR), which require it to acquire a license to transport certain equipment and technology to certain territories. Ouray established procedures that ensure that it complies with export controls, and its audit system will reveal instances of noncompliance. Thus, if applicable, all of Ouray’s international based subcontractors and Ouray must also maintain, and represents that it does maintain, internal policies, procedures, and controls to prevent its Personnel or Affiliates from violating U.S. export control regulations. Ouray and its Service Providers agree fully cooperate with the Ouray’s Export Control Audit and Investigation Program. The Subcontractor agrees to provide to Ouray, upon reasonable request, access to documents which describe its policies, procedures, concerns, and audit results, redacted to protect confidentiality obligations, related to this Policy.
Anti-bribery and Anti-corruption Policy.
Ouray is subject to United States of America and other international anticorruption laws and regulations, including the Foreign Corrupt Practices Act (FCPA). Thus, if applicable, all of Ouray’s international based subcontractors must maintain, and represents that it maintains, internal policies, procedures, and controls to prevent its Personnel or Affiliates from engaging in bribery and corruption. Each Party or any of its Personnel, in connection with a Supplier Contract with Ouray, must not directly or indirectly, offer, promise, give, demand, or accept any bribe or other undue advantage to obtain, retain or direct business or secure any other improper advantage in the conduct of business. This applies whether dealing with government or with private individuals or enterprises. Each Party represents and warrants that neither it nor any of its Personnel or Affiliates has, in connection with the negotiation and execution of a Supplier Contract with Ouray, directly or indirectly, offered, promised, given, or demand or accepted any bribe or other undue advantage to obtain, retain or direct business or secure any other improper advantage in the conduct of business. This applies whether dealing with government or with private individuals or enterprises. The Subcontractor agrees to provide to Ouray, upon reasonable request, access to documents which describe its policies, procedures, concerns, and audit results, redacted to protect confidentiality obligations, related to this Policy.
Ouray expects and demands that each of its business units, contractors, suppliers, and employees carry out their business and perform their duties to the highest ethical standards and in compliance with all relevant legal principles. Ouray, its suppliers, contractors, and employees will always demonstrate the highest level if integrity, truthfulness, and honesty to uphold both personal and corporate reputations and to inspire confidence and trust in their respective actions.
As part of Ouray’s ethics policy, Ouray is also subject the certain U.S. laws and international regulations that prohibit Ouray from engaging in or doing business with any entity that participates in the use, transport, or sanctioning of Conflict Minerals. The Supplier warrants that neither it nor any subcontractor it may use to perform Services under these terms permit the use, transport, or engage in the facilitation of providing access to Conflict Minerals. And Supplier will fully and in good faith cooperate with all Ouray audits and investigations related to this Policy.
Ouray may also be subject to individual privacy regulations around the world, including the GDPR or similar applicable Singaporean and Chinese regulations adopted in the future. Thus, Ouray must maintain internal policies, procedures, and controls to prevent its Personnel, partners, or Affiliates from violating relevant privacy laws. Ouray may be required to implement additional measures to ensure it complies with all applicable privacy regulations, and from time to time, conduct audits of its partners and Affiliates. Subcontractor agrees to cooperate with a reasonable request for documents and assistance in performing an audit.
30. Reach Compliance
1. Ouray is committed to compliance with the European Union’s Registration, Evaluation, and Authorization of Chemicals Directive (REACH) that came into force on June 1, 2007. The objective of REACH is to improve the protection of human health and the environment by placing greater responsibility on industry to identify and manage the risks from certain substances and to provide safety information on those materials. Its scope covers goods imported to or produced within the European Union (EU). REACH also requires registration when certain materials, whether used alone or within an article, are imported into or produced within the EU to the extent that the amount of any such material exceeds 1 metric ton per year and the material is present in concentrations above 0.1% wt/wt per article. At present, the materials subject to this directive are those that were identified by the European Chemical Agency (ECHA), on their list of substances considered “Substances of Very High Concern” (SVHC). As a responsible supplier, Ouray will monitor our service providers, contractors, and vendors for compliance on an ongoing basis, and are committed to meeting the spirit of this regulation, including shipments to countries beyond the EU. Should Subcontractor be aware, or become aware, of any products having registration or other reporting requirements specified in REACH please contact the Ouray with details.
31. Disputes and Governing Law.
1. Unless otherwise agreed or provided in the Agreement with Subcontractor, any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with relationship between Ouray and the Subcontractor, including any contract, validity, subject matter, or formation, shall be governed by, and construed in accordance with, the laws of Colorado, without giving effect to any other choice of law rules.
2. Unless otherwise agreed or provided in the Agreement with Subcontractor, any dispute or claim arising from or in connection with this Agreement or its relationship, prior to filing any claims or allegations, Subcontractor and Ouray shall meet for mediation with Ouray in Denver Colorado. If after meeting for good-faith mediation, the parties are unsuccessful at resolving their disputes, after forty-five days from day of mediation, the Parties may submit any remaining disputes under Section 30(3)-(4) of these Terms.
3. Unless otherwise agreed or provided in the Agreement with Subcontractor, the Subcontractor irrevocably agrees that any dispute or claim arising from or in connection with its relationship Ouray (after satisfaction of Section 30(2) mediation) shall be resolved in arbitration in New York City administered by the JAMS under the JAMS Arbitration Rules in force at the time the claim is filed, which rules are incorporated by reference into this clause. Or, if the Subcontractor’s primary place of business or the Services performed are outside of the USA, the JAMS international Arbitration Rules shall apply and are incorporated by reference herein. The number of arbitrators shall be one. The proceedings and all notices, filings, or other communications related to or arising from the dispute or in anticipation of the dispute shall be in English. If not in English, then the dispute is procedurally not compliant with this Section.
4. The Subcontractor also agrees that the United States Federal Rules of Evidence shall govern the evidence gathering, document exchange and other Discovery procedures between the Subcontractor and Ouray, including the Parties conduct, initial disclosures, witnesses, Discovery requests, and depositions. For the purposes of this Section, Discovery generally means exchanging of relevant documents, information, and other evidence and is defined in the United States Federal Rules of Evidence. Further, Ouray the Subcontractor agree that if depositions are necessary, they may be taken by videoconference at the taking attorney’s discretion. But the Subcontractor and Ouray may agree to, or the Arbitrator may, limit Discovery to ensure the amount of Discovery available is proportional to the case.
5. The Subcontractor will continue to perform its obligations under the Agreement while the Subcontractor and Ouray attempt to resolve the dispute.