1.01 CONFIDENTIAL INFORMATION
Any information given to Client by Quality Care in connection with this Agreement is provided as confidential and proprietary information only for the purposes facilitating performance of the Work pursuant to this Agreement. Unless Client has the prior written consent of Quality Care, Client shall not at any time following the date of this Agreement disclose any confidential information to any third party.
From the date of execution through a period of two (2) years following the termination of this Agreement, Client agrees that it will not at any time contact or solicit any of Quality Care’s employees, agents, subcontractors or service providers for the purpose of inducing them to terminate their relationship with Quality Care and/or commence a relationship with Client or any business which is employed by Client, directly or indirectly, or which Client, directly or indirectly, owns, manage, operates, is employed by, consults with, participates in or is connected with in any manner.
1.03 IRREPARABLE INJURY
Both parties agree that the breach of any term of this Agreement by Client will cause irreparable harm and injury to Quality Care and that Quality Care shall be entitled injunctive relief, both temporary, preliminary and final, and both parties agree to the jurisdiction of the equitable powers of the appropriate Court to obtain such relief. If there is a breach of this non-disclosure/non-solicitation covenant, Quality Care shall have the right to sue for damages and the Client shall be liable for the payment of court costs, reasonable attorney’s fees and cost incurred in enforcing this non-disclosure/non-solicitation covenant, including, but not limited to the cost of investigation.
1.04 INFORMED CONSENT
Client has carefully read and considered the provisions of this non-disclosure/non-solicitation covenant and having done so agrees that the restrictions set forth in this Agreement are fair and reasonably required for the protection of the interest of Quality Care.
LIMITATION OF LIABILITY AND INDEMNIFICATION
2.01 CLAIMS AND LIMITATIONS
No action of any character arising from or related to this Contract, or the performance thereof, shall be commenced by either party against the other more than one (1) year after completion or cessation of work by Company. Any damages for which Company may be liable to Client shall not, in any event, exceed the cash payments made to Company by Client.
2.02.1 To the fullest extent permitted by applicable law, Client agrees to indemnify, defend and hold harmless Quality Care and its respective affiliated companies, partners, successors, assigns, heirs, legal representatives, devises, officers, directors, shareholders, employees and agents (herein collectively Indemnitees) for, from and against all damages, liabilities, losses, demands, claims, suits, actions, causes of action, cost, penalties, judgments, and expenses (including, attorney fees, costs and expenses of litigation and of Investigation) due to personal injury or property damage, or both, including, but not limited to, any and all claims, demands, causes of action, proceedings or suits for bodily injury, illness, disease, death, property damage or loss, loss of use, maintenance, cure, or wages (herein collectively Liabilities) directly or indirectly arising out of, or caused by, or resulting from (in whole or in part): (1) Client’s premises, including any acts or omissions by Client or Client’s subcontractors whether employed directly or indirectly, which occur while Quality Care is or is not physically on premises, (2) obstacles that protrude from the surface of the pavement on the Property including but not limited to utilities, water shut offs, electrical boxes, sewer vents, clean outs and any other obstacles on or within 10″ of the pavement, (3) pavement that is deteriorated, weakened, frost heaved or installed improperly, (4) incidental damages from the Work to ground cover, shrubbery, landscape lighting, parking curbs, paver bricks, hardscapes, blacktop surfaces, concrete, movement of gravel, (5) injury or damage to the Property or adjoining premises caused by lightning, fire, flood, cloud bursts, or unusual water run-off or other conditions beyond the control of Quality Care existent prior to, during or after the performance of its obligations under this Agreement, (6) delays in performance caused by strikes, weather conditions, and inability to obtain material or any other cause beyond the control of Quality Care, (7) this Agreement, or (8) any act or omission of the Client, any sub-contractor, anyone directly or indirectly employed by them, or anyone that they control or exercise control over except for such Liabilities which are caused by the sole fault or willful misconduct of Indemnitees. Without intending to limit the scope of Liabilities in a way, and to the extent permitted by applicable law, the Client expressly waives its immunity under the applicable workers’ compensation statute in connection with any Indemnities claim for indemnification under this article.
2.02.2 The Client’s indemnity obligations under this paragraph shall also specifically include, without limitation, all fines, penalties, damages, liability, costs, expenses (including without limitation, attorney’s fees, costs and expenses of litigation and investigation) and punitive damages (if any) arising out of, or in connection with, any (i) violation of or failure to comply with any and all building codes, permitting requirements and rule and regulations promulgated there under that bear upon the performance of the Work by Quality Care, a sub-contractor, or any person or entity for whom either is responsible, (ii) means, methods, procedures, techniques, or sequences of execution or performance of the Work, and (iii) failure to secure and pay for permits, fees, approvals, licenses, and inspections as required, or any violation of any permit or other approval of a public authority applicable to the Work by Quality Care, a sub-contractor, or any person or entity for whom either is responsible.
2.02.3 Client shall promptly advise Quality Care in writing of any action, administrative or legal proceeding, claim, notice or investigation as to which this indemnification may apply, and Client, at the Client’s expense, shall assume on behalf of Quality Care (and the other Indemnitees) and conduct with due diligence and in good faith the defense thereof with council satisfactory to Quality Care, provided, however, that Quality Care shall have the right, at its option, to be represented therein by advisory council of its own selection and at its own expense. In the event of failure by the Client to fully perform in accordance with this indemnification provision, Quality Care, at its option, and without relieving the Client of its obligations hereunder, may so perform, but all costs and expenses so incurred by Quality Care in that event shall be reimbursed by the Client to Quality Care, together with interest on the same from the date any such expense was paid by Quality Care until reimbursed by the Client, at the rate of interest provided to be paid on judgments, by the law of the jurisdiction to which the interpretation of this Contract is subject. This indemnification shall not be limited to damages, compensation or benefits payable under insurance policies, worker’s compensation acts, disability benefit acts or other employees benefit acts.
2.02.4 The Client shall indemnify and hold harmless all the Indemnitees from and against any costs and expenses (including attorney’s fees, cost and expenses of litigation and investigation) incurred by and Indemnitees in enforcing any of Quality Care’s defense, indemnify, and hold harmless obligations under this Contract.
2.03 LIMITATION OF WARRANTIES
There are no warranties either expressed or implied except those specifically set forth in this Contract, and there are absolutely no guarantees relating to continued life or growth of plant material unless otherwise specifically stated and agreed to in writing and signed by both parties. Any warranty or guarantee is only effective if Client has complied with all of the terms and conditions, payments, and other provisions of this Contract. Client is responsible for the normal wear and tear that occurs as a property ages, is cleaned and is used, this includes but is not limited to consumable items such as irrigation parts, light parts, plants, trees, path/paving materials, landscaping materials, and items or materials that can decompose, wear out, or break down with time. Client is responsible for any damages to plants or otherwise, caused by either over or under watering or when there is an interruption in the service of an automatic sprinkler system, or chemical applications or where plants, irrigation and other landscaping are damaged by pets, animals, diseases, acts of God or negligence of people. Company shall also not be responsible for any damage caused by inclement weather, run-off, broken pipes, drainage problems, or any other cause of excess water. If Client has an existing irrigation system Client agrees to hold harmless Company and Company personnel for any and all problems or damage associated with the pre-existing irrigation parts and/or system including but not limited to old, worn, poorly installed irrigation parts or systems that may leak, break, be damaged or need replacing when Company is adjusting or working on the Clients pre-existing irrigation system.
3.01 QUALITY CARE’S EQUIPMENT
In no event shall the Client have any interest in or right to possess, use, restrain, impound, attach or otherwise withhold Quality Care’s material or equipment. The Client, its agents, employees or representatives shall be liable to Quality Care in damages for any withholding thereof after demand therefore by Quality Care.
3.02 PARTIAL INVALIDITY
Each clause, covenant and obligation set forth in this Agreement is separate and distinct from every other restrictive covenant, clause and obligation set forth herein, and in the event of the invalidity of any clause, covenant or obligation, the remaining clauses, covenants and obligations shall be deemed independent and devisable and in full force and effect.
3.03 MODIFICATION AND AMENDMENT
The parties may amend this Agreement at any time upon mutual written agreement of the parties. No amendment, waiver, change, modification, or termination of any of the terms, provisions or conditions of this Agreement shall be effective unless and until reduced to writing and signed by both parties.
No waiver of default, by any party, hereunder shall be implied from any omission by a party to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the express waiver, and that only for the time and to the extent therein stated. One or more waivers of any covenant, term or condition of this Agreement by a party shall not be construed to be a waiver of any subsequent breach of the same covenant, term or condition. The consent or approval of any party shall not be deemed to waive or render unnecessary the consent or approval of said party of any subsequent or similar acts or omissions by a party.
This Agreement may be assigned by Quality Care at its sole and absolute discretion.
This Agreement shall inure to the benefit of, and shall be binding upon, the permitted assigns, successors in interest, personal representatives, estate heirs, and legatees of each of the parties hereto.
3.07 GOVERNING LAW
This Agreement shall be governed by the laws of Iowa. All claims, disputes or other controversies between Quality Care and the Client arising out of or relating to Quality Care or the breach thereof shall be decided by litigation filed and venued in Polk County, Iowa, unless Quality Care elects to have such claim, dispute or controversy resolved by arbitration. Either party has the right to proceed to arbitration to settle disputes or other controversy between Quality Care and the Client, or between the Client and a sub-contractor. It shall be the responsibility of Quality Care to continue to perform any and all Work and perform all of its services diligently and in good and professional manner in conformity with the Contract. Client shall have no right to cease performance hereunder or to permit the prosecution of the Work to be delayed.
3.08 RIGHTS AND REMEDIES BY LAW
Duties and obligations imposed by the Contract Documents and rights and remedies available there under shall be in addition to and not a limitation of duties, obligation, rights, and remedies otherwise imposed or available by law.
3.09 ATTORNEY AND/OR OTHER FEES
In the event of any controversy, claim, or dispute between the parties hereto, arising out of or relating to this Agreement, or the breach thereof, Quality Care shall be entitled to recover its reasonable expenses, attorney’s fees and costs incurred in connection therewith, plus interest at the highest extent allowed by law. Quality Care’s attorney’s fees incurred shall not be deemed merged into the judgment.
In addition to, and not in lieu of any other remedies or damages otherwise available, if it shall be necessary to enforce the terms of this agreement, Quality Care shall be entitled to reimbursement of any fees and costs of its attorneys and/or expert witnesses, including, but not limited to, travel and lodging expense. The foregoing shall be applicable regardless of whether it is actually necessary to pursue litigation in order to forward the rights of the party.
The headings in this Agreement are inserted for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Agreement or any provision hereof.