Zero Homes – Standard Terms and Conditions
(For incorporation by reference into Master Services Agreements and Statements of Work)
These Standard Terms and Conditions (the “Terms”) are incorporated by reference into and form part of the applicable Master Services Agreement or services addendum (the “Agreement”) between Zero Homes (together with its affiliates, “Zero”) and the contracting party (“Contractor”). These Terms may be made available on Zero’s website and, when so referenced in an Agreement and/or statement of work, apply to the Services. Capitalized terms used but not defined in these Terms have the meanings given to them in the Agreement. These Terms are intended to supplement the operational and project-specific terms set forth in the Agreement and any applicable SOW.
Order of Precedence. In the event of any conflict between these Terms and the Agreement, the Agreement will control unless the Agreement expressly states that these Terms control for the provision in question. In the event of any conflict between the Agreement (including these Terms) and any applicable project-level scope of work, project package, statement of work, change order, or similar work authorization (each, a “SOW”), the SOW will control solely with respect to the Services, pricing, and schedule for that project.
Contractor, and any subcontractors, shall be bound by the terms and conditions of any upstream utility, program administrator, prime contractor, or end client, as provided to Contractor in writing by Zero (each, a “Primary Agreement”), to the extent such terms are applicable to the Services under an SOW. Contractor shall comply, and shall cause its subcontractors at any tier to comply, with all such applicable obligations as if Contractor were the primary contractor for the relevant portion of the work.
SERVICES.
Zero hereby engages Contractor, and Contractor hereby accepts such engagement, as an independent contractor to provide the Services to Zero on the terms and conditions set forth in the Agreement and these Terms.
Contractor shall provide to Zero the Services set forth in the Agreement and the applicable SOW(s) (the “Services”).
Zero does not and shall not control or direct the manner or means by which Contractor or Contractor’s personnel perform the Services, including the time and place Contractor performs the Services, subject to any schedule, site access, safety, and coordination requirements set forth in the Agreement and/or applicable SOW.
As set forth in the Agreement, Zero shall provide Contractor with access to its premises, materials, information, and systems to the extent necessary for performance of the Services. Unless otherwise specified in the Agreement, Contractor shall furnish, at its own expense, the materials, equipment, and other resources necessary to perform the Services.
Contractor shall comply with all third-party and site access rules and procedures communicated to Contractor in writing by Zero, including those related to safety, security, and confidentiality.
TERM. These Terms shall commence as of the date Zero and Contractor enter into a binding Agreement, and shall continue in full force and effect until the Services are completed, unless earlier terminated in accordance with the Termination provisions below (the “Term”). Any extension of the Term will be subject to mutual written agreement. Zero and Contractor are referred to collectively as the “Parties”, and each, a “Party”.
FEES AND EXPENSES.
As full compensation for the Services and the rights granted to Zero under the Agreement and these Terms, Zero shall pay Contractor the fee(s) set forth in the Agreement (the “Fees”), payable on the schedule and subject to the invoice requirements set forth in the Agreement. Contractor acknowledges that it may receive an IRS Form 1099 from Zero (if applicable), and Contractor is solely responsible for all federal, state, and local taxes, as further described in Section 4.2.
Contractor is solely responsible for any travel or other costs or expenses incurred in connection with performance of the Services, and in no event shall Zero reimburse Contractor for any such costs or expenses unless expressly stated in the Agreement or applicable SOW.
Zero shall pay all undisputed Fees within fifteen (15) days after final jurisdictional and homeowner sign-offs, in accordance with the payment schedule and invoice requirements set forth in the Agreement.
RELATIONSHIP OF THE PARTIES.
Contractor is an independent contractor of Zero, and neither the Agreement nor these Terms shall be construed to create any association, partnership, joint venture, employment, or agency relationship between the Parties for any purpose. Contractor has no authority (and shall not hold itself out as having authority) to bind Zero, and Contractor shall not make any terms, conditions, or representations on Zero’s behalf without Zero’s prior written consent.
Without limiting Section 4.1, Contractor will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits, or any other fringe benefits or benefit plans offered by Zero to its employees, and Zero will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions (including for unemployment or disability), or obtaining workers’ compensation insurance on Contractor’s behalf. Contractor shall be responsible for, and shall indemnify Zero against, all such taxes or contributions, including penalties and interest. Any persons employed or engaged by Contractor in connection with the performance of the Services shall be Contractor’s employees or contractors, and Contractor shall be fully responsible for them and shall indemnify Zero against any claims made by or on behalf of any such employee or contractor.
INTELLECTUAL PROPERTY RIGHTS.
All documents, work product, and other materials that are delivered under the Agreement, and these Terms, including but not limited to documentation, photographs, reports, and checklists set out in the Agreement (collectively, the "Deliverables"), and all other writings, materials, and work product of any nature whatsoever that are created, prepared, produced, authored, edited, modified, conceived, or reduced to practice in the course of performing the Services or other work performed in connection with the Services or the Agreement (collectively, and including the Deliverables, "Work Product"), and all patents, copyrights, trademarks (together with the goodwill symbolized thereby), trade secrets, know-how, and other confidential or proprietary information, and other intellectual property rights (collectively "Intellectual Property Rights") therein, shall be owned exclusively by Zero. You acknowledge and agree that any and all Work Product that may qualify as "work made for hire" as defined in the Copyright Act of 1976 (17 U.S.C. § 101) is hereby deemed "work made for hire" for Zero and all copyrights therein shall automatically and immediately vest in Zero. To the extent that any Work Product does not constitute "work made for hire," you hereby irrevocably assign to Zero and its successors and assigns, for no additional consideration, your entire right, title, and interest in and to such Work Product and all Intellectual Property Rights therein, including the right to sue, counterclaim, and recover for all past, present, and future infringement, misappropriation, or dilution thereof. Notwithstanding the foregoing, this assignment does not apply to general trade knowledge, skills, or experience possessed by you, nor to any pre-existing installation methods or techniques that are not specifically documented, photographed, reported, or included in checklists as part of the Deliverables under this Agreement.
To the extent any copyrights are assigned under this Section 5, you hereby irrevocably waive in favor of Zero, to the extent permitted by applicable law, any and all claims you may now or hereafter have in any jurisdiction to all rights of paternity or attribution, integrity, disclosure, and withdrawal and any other rights that may be known as "moral rights" in relation to all Work Product to which the assigned copyrights apply.
You shall make full and prompt written disclosure to Zero of any inventions that constitute Work Product, whether or not such inventions are patentable or protected as trade secrets. You shall not disclose to any third party the nature or details of any such inventions without the prior written consent of Zero. Any patent application for or application for registration of any Intellectual Property Rights in any Work Product that you may file during the Term or within one year thereafter will belong to Zero, and you hereby irrevocably assign to Zero, for no additional consideration, your entire right, title, and interest in and to such application, all Intellectual Property Rights disclosed or claimed therein, and any patent or registration issuing or resulting therefrom.
Upon the reasonable request of Zero, during and after the Term, you shall promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, and provide such further cooperation, as may be reasonably necessary to assist Zero to apply for, prosecute, register, maintain, perfect, record, or enforce its rights in any Work Product and all Intellectual Property Rights therein. In the event Zero is unable, after reasonable effort, to obtain your signature on any such documents, you hereby irrevocably designate and appoint Zero as your agent and attorney-in-fact, to act for and on your behalf solely to execute and file any such application or other document and do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights, or other intellectual property protection related to the Work Product with the same legal force and effect as if you had executed them. You agree that this power of attorney is coupled with an interest.
Notwithstanding Section 5.1, to the extent that any of your pre-existing materials identified in the Agreement are incorporated in or combined with any Deliverable or otherwise necessary for the use or exploitation of any Work Product, you hereby grant to Zero an irrevocable, worldwide, perpetual, royalty-free, non-exclusive license to use, publish, reproduce, perform, display, distribute, modify, prepare derivative works based upon, make, have made, sell, offer to sell, import, and otherwise exploit such preexisting materials and derivative works thereof. Zero may assign, transfer, and sublicense such rights to others without your approval.
As between you and Zero, Zero is, and will remain, the sole and exclusive owner of all right, title, and interest in and to any documents, specifications, data, know-how, methodologies, software, and other materials provided to you by Zero ("Company Materials"), and all Intellectual Property Rights therein. You have no right or license to reproduce or use any Company Materials except solely during the Term to the extent necessary to perform your obligations under the Agreement. All other rights in and to Zero Materials are expressly reserved by Zero. You have no right or license to use Zero's trademarks, service marks, trade names, logos, symbols, or brand names.
You shall require each of your employees and contractors to be informed of the obligations of confidentiality, non-use, and assignment of inventions and other Work Product consistent with the provisions of this Section 5 prior to such employee or contractor providing any Services under the Agreement. They shall be bound by the same restrictions.
CONFIDENTIALITY.
You acknowledge that you will have access to information that is treated as confidential and proprietary by Zero, including without limitation information pertaining to business operations and strategies, customers, marketing, finances, sourcing, personnel, operations of the Company, its affiliates, or their suppliers or customers, along with any non-public information such as technical data, network diagrams, site lists, customer data, pricing, proposals, playbooks, processes, business plans, and trade secrets, in each case whether spoken, written, printed, electronic, or in any other form or medium ("Confidential Information"). You agree to treat all Confidential Information as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or in part, to any third party without the prior written consent of Zero in each instance, and not to use any Confidential Information for any purpose except as required in the performance of the Services. You shall implement reasonable and appropriate administrative, technical, and physical safeguards to protect Confidential Information, and if handling personal data, comply with applicable data privacy laws and any Company data processing addendum. You further agree that any subcontractors, agents, or representatives to whom you provide access to Confidential Information in connection with the Services shall be bound by confidentiality obligations at least as protective as those set forth in this section, and you shall be responsible for ensuring their compliance with such obligations.
Confidential Information shall not include information that:
is or becomes generally available to the public other than through your breach of the Agreement, or these Terms; or
is communicated to you by a third party that had no confidentiality obligations with respect to such information.
Nothing herein shall:
be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order; or
prohibit or restrict you (or your attorney) from initiating communications directly with, responding to an inquiry from, providing testimony before, or otherwise participating in any investigation or proceeding conducted by the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), any other self-regulatory organization, or any other federal or state regulatory authority regarding possible securities law violations.
Notice of Immunity Under the Defend Trade Secrets Act of 2016. Notwithstanding any other provision of the Agreement or these Terms:
You will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that:
is made: (A) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected violation of law; or
is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.
If you file a lawsuit for retaliation by Zero for reporting a suspected violation of law, you may disclose Zero's trade secrets to your attorney and use the trade secret information in the court proceeding if you:
file any document containing the trade secret under seal; and
do not disclose the trade secret, except pursuant to a court order.
REPRESENTATIONS AND WARRANTIES.
You represent and warrant to Zero that:
you have the right to enter into the Agreement and these Terms, to grant the rights granted herein, and to perform fully all of your obligations under the Agreement and these Terms;
your entering into the Agreement and these Terms with Zero, and your performance of the Services do not and will not conflict with or result in any breach or default under any other agreement or obligation to which you are subject;
you have the required skill, experience, and qualifications to perform the Services, and you shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar Services, and you shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner;
you shall perform the Services in compliance with all applicable federal, state, and local laws and regulations, including by maintaining all licenses, permits, and registrations required to perform the Services; and
Zero will receive good and valid title to all Work Product, free and clear of all encumbrances and liens of any kind, and, to the best of your knowledge, the Work Product will not violate or infringe upon the Intellectual Property Rights or other rights of any third party.
Zero hereby represents and warrants to you that:
it has the full right, power, and authority to enter into the Agreement, and these Terms, and to perform its obligations hereunder; and
the execution of the Agreement, and these Terms by its representative whose signature is set forth at the end of the Agreement, and these Terms have been duly authorized by all necessary corporate action.
INDEMNIFICATION.
Contractor shall defend, indemnify, and hold harmless Zero and its affiliates and their respective officers, directors, employees, agents, successors, and assigns (and, to the extent required by an applicable Primary Agreement, Zero’s client(s)) from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees) arising out of or resulting from any third-party claim to the extent caused by: (a) Contractor’s or its subcontractors’ negligence or willful misconduct; (b) Contractor’s breach of the Agreement or these Terms; or (c) Contractor’s violation of applicable law. Contractor’s indemnification obligations expressly include claims and losses caused by the acts or omissions of subcontractors at any tier, and Contractor remains fully responsible for their compliance with the Agreement and these Terms.
bodily injury, death of any person, or damage to real or tangible personal property resulting from your acts or omissions; or
your breach of any representation, warranty, or obligation under the Agreement, or these Terms.
No indemnity is provided for Zero’s sole negligence or willful misconduct; proportional fault applies.
Except to the extent a different limitation is stated in the Agreement, Contractor’s aggregate liability under the Agreement and these Terms is capped at the Fees actually paid to Contractor in the twelve (12) months preceding the event giving rise to the claim, excluding claims arising from (i) bodily injury or death, (ii) damage to real or tangible personal property, (iii) intellectual property infringement, (iv) breach of confidentiality, or (v) violations of law.
INSURANCE.
If required under the Agreement, during the Term, you shall maintain in force adequate workers' compensation, commercial general liability, errors and omissions, and other forms of insurance, in each case with insurers reasonably acceptable to Zero, with policy limits sufficient to protect and indemnify Zero and its affiliates, and each of their officers, directors, agents, employees, subsidiaries, partners, members, controlling persons, and successors and assigns, from any losses resulting from your acts or omissions or the acts or omissions of your agents, contractors, servants, or employees. Zero shall be listed as additional insured under such policy, and you shall forward a certificate of insurance verifying such insurance upon Zero's written request, which certificate will indicate that such insurance policies may not be canceled before the expiration of a thirty (30) business day notification period and that Zero will be immediately notified in writing of any such notice of termination.
You agree that all insurance, safety, training, security, site access, and compliance requirements imposed by Primary Agreements will be flowed down to you as a condition of work acceptance. Zero will provide you with written notice and applicable excerpts of such upstream requirements, and you agree to comply. You shall furnish certificates, training records, and compliance attestations upon request within five (5) business days.
Subcontractor shall, at its own expense, maintain insurance coverage at all times during the performance of work under this Agreement, including but not limited to Commercial General Liability, Workers’ Compensation, and any other insurance as required by Zero or the Primary Agreement. All such insurance shall name Zero as an Additional Insured on a primary and non-contributory basis, and shall include a waiver of subrogation in favor of Zero. Subcontractor shall provide Certificates of Insurance and all required endorsements evidencing compliance with these requirements prior to commencement of any work, and upon renewal or replacement of coverage, but in no event later than ten (10) business days after written request by Zero. Subcontractor shall provide at least thirty (30) days’ prior written notice to Zero of any cancellation, non-renewal, or material change in coverage. Failure to maintain the required insurance or provide evidence thereof shall constitute a material breach of this Agreement. For the avoidance of doubt, any grace period for providing insurance endorsements shall not limit, defer, or otherwise affect the subcontractor's obligations to comply with audit and inspection requirements under this Agreement.
SCOPE, STANDARDS, AND COORDINATION. Contractor shall perform all Services strictly in accordance with (a) the applicable Scope of Work or Project Package (including drawings, specifications, and equipment schedules), (b) manufacturer installation instructions (including required start-up/commissioning steps to preserve manufacturer warranties), and (c) all applicable federal, state, and local laws, building codes, mechanical/electrical/plumbing codes, and permitting/inspection requirements. Contractor shall ensure that all subcontractors at any tier also comply with all such standards, laws, codes, and requirements, and shall require subcontractors to provide all documentation reasonably necessary to demonstrate such compliance. Unless otherwise expressly approved in writing by Zero, all on-site work shall be performed by Contractor’s W-2 employees. Subcontractor personnel may perform on-site work only if (i) Contractor has obtained prior written approval from Zero for such personnel and scope, (ii) such personnel meet all applicable qualification, safety, and compliance requirements, and (iii) the subcontractor provides all documentation reasonably requested by Zero to verify compliance. Contractor will coordinate sequencing with Zero and any other trades on site, and will notify Zero promptly of conflicts, code issues, or design/field condition discrepancies that could affect scope, cost, schedule, safety, or performance.
CHANGE ORDERS; CONCEALED/UNFORESEEN CONDITIONS. No change in scope, means, methods, equipment selection, or price is authorized unless documented in writing (email acceptable if permitted by Zero) as a Change Order approved by Zero. If Contractor encounters concealed, latent, or unforeseen conditions (including but not limited to asbestos, mold, vermiculite, lead, knob-and-tube wiring, degraded framing, inaccessible chases, undersized electrical service, undocumented utilities, or conditions inconsistent with the Project Package), Contractor shall stop affected work, make the area safe, and notify Zero immediately. Contractor will not proceed with additional or different work until Zero provides written direction; additional time and compensation (if any) will be addressed via Change Order.
SCHEDULE, SITE CONDITIONS, AND ACCESS. Contractor shall perform Services during agreed working hours and in coordination with the homeowner’s access requirements and any utility/program rules. Contractor is responsible for verifying site readiness (including clear access, safe working conditions, adequate power, and reasonable environmental conditions) and for protecting finished surfaces. If work is delayed due to the homeowner's unavailability, unsafe conditions, weather conditions affecting exterior work, utility outages, or interference by other trades not controlled by Contractor, Contractor shall promptly notify Zero and request a schedule adjustment.
PERMITS, INSPECTIONS, AND CLOSEOUT DOCUMENTATION. Except to the extent expressly stated otherwise in the Project Package, Contractor will (a) obtain all required trade permits in Contractor’s name (and pay related fees), (b) schedule and attend inspections as required, and (c) provide Zero with copies of permits, inspection sign-offs, commissioning/start-up forms, equipment registration information (if applicable), and any other documents required for program rebates or utility submissions. Contractor’s payment timing may be tied to required inspection approval and delivery of required closeout documentation as stated in the Agreement or Project Package.
MATERIALS & EQUIPMENT; TITLE; RISK OF LOSS; SALVAGE. Major equipment is typically procured by Zero as described in the Agreement. Contractor shall be responsible for (a) verifying delivered equipment is correct and not visibly damaged, (b) protecting stored equipment at the Project site, and (c) notifying Zero promptly of missing/damaged/incorrect items. Unless otherwise specified in writing, title to Zero-procured equipment remains with Zero until installed and accepted; Contractor bears risk of loss for equipment in Contractor’s custody or control (including during handling, storage, and installation). Unless the Project Package states otherwise, removed equipment/materials are homeowner property; Contractor will dispose of removed equipment in accordance with applicable law and program requirements, and will not salvage or sell removed equipment without written homeowner authorization and Zero approval.
START-UP, COMMISSIONING, TESTING, AND ACCEPTANCE. Contractor shall complete start-up and commissioning per manufacturer requirements and any Project Package acceptance criteria. Contractor will provide any required performance readings and photos (e.g., nameplates, line sets, penetrations, condensate routing, breaker labeling, refrigerant pressures, airflow/CFM measurements, static pressure, combustion readings where applicable). The Services are deemed accepted upon the earlier of (a) homeowner sign-off, (b) passing final inspection (if required), or (c) beneficial use/operation by the homeowner, subject to punch-list and warranty obligations.
WARRANTY, CALLBACKS, AND CORRECTIVE WORK. Contractor shall provide, at a minimum, the workmanship warranty period stated in the Agreement (currently one (1) year) for the Services. During the workmanship warranty period, Contractor shall promptly respond to warranty service requests related to Contractor’s workmanship and re-perform or correct defective work at no additional charge. Warranty does not cover normal wear and tear, homeowner misuse/neglect, lack of maintenance, acts of God, or manufacturer defects (except to the extent caused by improper installation). If the issue is determined not to be covered by workmanship warranty, Contractor shall provide a quoted price for any requested repairs, subject to Zero approval where Zero is responsible for payment.
SAFETY; HAZARDOUS MATERIALS; STOP-WORK. Contractor is solely responsible for jobsite safety for its personnel and subcontractors and for compliance with OSHA and all applicable safety rules, including any upstream utility/program safety requirements provided by Zero. Contractor shall not disturb suspected hazardous materials. If hazardous materials are suspected or encountered, Contractor shall stop affected work, secure the area, and notify Zero and the homeowner immediately. Contractor may stop work when conditions are unsafe and will resume once conditions are made safe and Zero provides written directions.
LIEN COMPLIANCE. Contractor shall comply with all applicable mechanics’ lien laws, including any required preliminary notices. Upon request, Contractor will provide conditional and unconditional lien waivers/releases in forms reasonably acceptable to Zero for amounts paid and will cause its subcontractors and suppliers (if any) to provide similar waivers/releases. Subcontractors shall cooperate fully with Contractor and Zero in providing all information, documentation, and signatures necessary for the preparation, service, and release of any mechanics’ lien notices, waivers, or releases. Subcontractors shall promptly respond to requests for such information and shall ensure that their lower-tier subcontractors and suppliers do the same. Failure to provide required cooperation or information in a timely manner shall constitute a material breach of this Agreement.
PROPERTY PROTECTION; RESTORATION. Contractor shall protect the home and existing improvements from damage and shall maintain the work area in a clean and safe condition. Contractor is responsible for repairing, at Contractor’s cost, damage to the home or personal property caused by Contractor or its personnel (reasonable wear in areas designated for work excepted). If restoration work is required outside Contractor’s trade (e.g., drywall/paint), Contractor shall notify Zero immediately; allocation of restoration responsibility and cost will be addressed via Change Order or as otherwise directed by Zero.
PUNCH LIST; DISPUTE ESCALATION (PROJECT LEVEL). Contractor will promptly address reasonable punch-list items identified by Zero, the homeowner, or the Authority having Jurisdiction. For any project-level dispute involving scope interpretation, workmanship, safety, access, or third-party interference, Contractor shall elevate to Zero promptly, and the Parties will attempt good-faith resolution before either Party initiates formal dispute proceedings, consistent with the claims/dispute provisions in the Agreement and these Terms.
TERMINATION.
You or Zero may terminate the Agreement and these Terms without cause upon thirty (30) days’ written notice to the other Party to the Agreement. In the event of termination pursuant to this clause, Zero shall pay you on a pro-rata basis any Fees then due and payable for any Services completed up to and including the date of such termination.
You or Zero may terminate the Agreement, and these Terms, effective immediately upon written notice to the other Party to the Agreement, if the other Party materially breaches the Agreement, or these Terms, and such breach is incapable of cure, or with respect to a material breach capable of cure, the other Party does not cure such breach within ten (10) business days after receipt of written notice of such breach.
Upon expiration or termination of the Agreement, and these Terms for any reason, or at any other time upon Zero's written request, you shall promptly after such expiration or termination:
deliver to Zero all Deliverables (whether complete or incomplete) and all materials, equipment, and other property provided for your use by Zero;
deliver to Zero all tangible documents and other media, including any copies, containing, reflecting, incorporating, or based on the Confidential Information;
permanently delete all Confidential Information stored electronically in any form, including on computer systems, networks, and devices such as cell phones; and
certify in writing to Zero that you have complied with the requirements of this clause.
The provisions of the Agreement and these Terms that by their nature should survive (including provisions relating to payment obligations accrued, independent contractor status, intellectual property, confidentiality, indemnification, remedies, dispute resolution, governing law, and audit/inspection) shall survive the expiration or termination of the Agreement and these Terms.
OTHER BUSINESS ACTIVITIES. You agree that you are not, and during the Term of the Agreement, shall not be engaged or employed in any business, trade, profession, or other activity that would create a conflict of interest with Zero. If any such actual or potential conflict arises during the Term of the Agreement, you shall immediately notify Zero in writing. If Zero determines, in its sole discretion, that the conflict is material, Zero may terminate the Agreement and these Terms immediately upon written notice.
NON-SOLICITATION. You agree that during the Term of the Agreement and for a period of twenty-four (24) months following the termination or expiration of the Agreement, you shall not make any solicitation to employ Zero’s personnel without the written consent of Zero to be given or withheld in Zero’s sole discretion. For the purposes of this clause, a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet or social media, shall not be construed as a solicitation or inducement, and the hiring of any such employee or independent contractor who freely responds thereto shall not be a breach of this clause.
ASSIGNMENT. You shall not assign any rights or delegate or subcontract any obligations under the Agreement, or these Terms, without Zero's prior written consent. Any assignment in violation of the foregoing shall be deemed null and void. Zero may freely assign its rights and obligations under the Agreement or these Terms at any time. Subject to the limits on assignment stated above, the Agreement, and these Terms will inure to the benefit of, be binding on, and be enforceable against each of the Parties hereto and their respective successors and assigns.
REMEDIES. In the event you breach or threaten to breach any section of the Agreement, or these Terms, you hereby acknowledge and agree that money damages would not afford an adequate remedy and that Zero shall be entitled to seek a temporary or permanent injunction or other equitable relief restraining such breach or threatened breach from any court of competent jurisdiction without the necessity of showing any actual damages, and without the necessity of posting any bond or other security. Any equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages, or other available forms of relief.
ARBITRATION.
Any dispute, controversy, or claim arising out of or related to the Agreement, and these Terms or any breach or termination of the same, including but not limited to the Services you provide to Zero, and any alleged violation of any federal, state, or local statute, regulation, common law, or public policy, whether sounding in contract, tort, or statute, shall be submitted to and decided by binding arbitration to the fullest extent allowed and enforceable under federal law. Arbitration shall be governed by the Federal Arbitration Act (FAA) and held in Denver, Colorado, before a single arbitrator, in accordance with the American Arbitration Association's rules, regulations, and requirements. Any arbitral award determination shall be final and binding upon the Parties. Judgment on the arbitrator's award may be entered in any court of competent jurisdiction.
Arbitration shall proceed only on an individual basis. The Parties waive all rights to have their disputes heard or decided by a jury or in a court trial and the right to pursue any class or collective claims against each other in court, arbitration, or any other proceeding. Each Party shall only submit its own individual claims against the other and will not seek to represent the interests of any other person. The arbitrator shall have no jurisdiction or authority to compel any class or collective claim, or to consolidate different arbitration proceedings with or join any other Party to an arbitration between the Parties. The arbitrator, not any court, shall have exclusive authority to resolve any dispute relating to the enforceability or formation of the Agreement, and these Terms and the arbitrability of any dispute between the Parties, except for any dispute relating to the enforceability or scope of the class and collective action waiver and the application of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which a court of competent jurisdiction shall determine.
GOVERNING LAW, JURISDICTION, AND VENUE. The Agreement, and these Terms and all related documents including all schedules attached thereto and all matters arising out of or relating to the Agreement, or these Terms and the Services provided thereunder or hereunder, whether sounding in contract, tort, or statute, for all purposes shall be governed by and construed in accordance with the laws of the State of Colorado, without giving effect to any conflict of laws principles that would cause the laws of any other jurisdiction to apply.
MISCELLANEOUS.
You shall not export, directly or indirectly, any technical data acquired from Zero, or any products utilizing any such data, to any country in violation of any applicable export laws or regulations.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth in the Agreement (or to such other address designated by the receiving Party in accordance with this Section). Notices shall be delivered by personal delivery, nationally recognized overnight courier (fees prepaid), certified or registered mail (return receipt requested, postage prepaid), or email if permitted by the Agreement. Except as otherwise provided in the Agreement or these Terms, a Notice is effective only when received by the receiving Party, and the sending Party has complied with the requirements of this Section.
The Agreement, and these Terms, together with any other documents incorporated therein or herein by reference, constitutes the sole and entire Terms of the Parties to the Agreement, and these Terms with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, terms and conditions, representations, and warranties, both written and oral, with respect to such subject matter.
The Agreement, and these Terms may only be amended, modified, or supplemented by a written agreement signed by each Party hereto, and any of the terms thereof may be waived, only by a written document signed by each Party to the Agreement or, in the case of waiver, by the Party or Parties waiving compliance.
If any term or provision of the Agreement, or these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement, or these Terms, or invalidate or render unenforceable such term or provision in any other jurisdiction.
AUDIT AND INSPECTION.
Zero and its authorized representatives shall have the right, upon reasonable prior notice and during normal business hours, to audit and inspect your records, operations, and those of your subcontractors at any tier, to verify compliance with the terms and conditions of this Agreement, including but not limited to the Master Services Agreement (MSA). You shall ensure that all subcontractors grant similar audit and inspection rights to Zero. Failure to provide access or cooperate with any such audit or inspection shall constitute a material breach of this Agreement.
For clarity, the timing or grace period for providing insurance endorsements shall not be construed to limit, delay, or otherwise affect the audit and inspection rights and obligations set forth in this section.
SUBCONTRACTOR FLOW-DOWN REQUIREMENTS.
All subcontractors engaged by you in connection with this Agreement shall be required to comply with all of the same obligations imposed under this Agreement and the Master Services Agreement (MSA), including but not limited to compliance with all applicable laws and regulations, security and safety requirements, confidentiality provisions, and insurance requirements. These obligations must be communicated to subcontractors in advance and incorporated into any agreements with them. Failure of any subcontractor to comply with these requirements shall be deemed a material breach of this Agreement.
All written subagreements with subcontractors shall expressly include, and require compliance with, all obligations under this Agreement and the Master Services Agreement (MSA) that by their nature should bind any personnel performing services or any lower-tier subcontractors. Such obligations include, but are not limited to, confidentiality, data protection, intellectual property, compliance with laws, security, safety, and insurance requirements. The parties agree that these flow-down provisions are material terms, and any failure to include or enforce them in subagreements shall constitute a material breach of this Agreement.
Subcontractors shall comply with minimum quality assurance and acceptance procedures as required by Zero or the prime contractor. At a minimum, all work performed by subcontractors shall be subject to review, inspection, and acceptance by Zero or the prime contractor prior to final payment. Subcontractors must: (a) cooperate fully with all quality assurance and inspection activities; (b) promptly correct any deficiencies or punchlist items identified during inspection or commissioning; (c) provide as-built documentation, photographs, test results, and other closeout deliverables as required by Zero or the prime contractor; and (d) warrant their work to the same extent and for the same duration as required of the Contractor under this Agreement and the Master Services Agreement. Failure to comply with these requirements shall constitute a material breach of this Agreement.
Subcontractors shall include in all subcontracts a provision that mirrors the Contractor's right to suspend or stop work for non-payment of undisputed amounts, as set forth in this Agreement and the Master Services Agreement. Specifically, no subcontractor shall have the right to suspend, slow, or stop work, or to make any claim for payment or damages arising from non-payment, unless and until the Contractor has the same right to suspend or stop work, or to make such claim, against the client or upstream party. This back-to-back payment and suspension provision is intended to ensure alignment throughout the contractual chain and to prevent any subcontractor from exercising suspension or payment rights in advance of the Contractor's corresponding rights under any Primary Agreement. Any failure by a subcontractor to include such a provision in its subcontracts shall constitute a material breach of this Agreement.
In the event that the Contractor is entitled under the Primary Agreement to suspend or stop work due to non-payment of undisputed amounts, the Subcontractor shall likewise have the right to suspend or stop work under this Agreement, but only to the extent and for the duration that such right is exercised by the Contractor under the Primary Agreement. The Subcontractor's exercise of any suspension or stop-work rights shall be strictly conditioned upon, and limited to, the Contractor's actual exercise of such rights with respect to the client or upstream party. Under no circumstances shall the Subcontractor have broader or earlier suspension or stop-work rights than those available to the Contractor under the Primary Agreement. This clause is intended to ensure that the timing and scope of any suspension or stop-work by the Subcontractor are fully aligned with the undisputed payment provisions and mechanics set forth in the Primary Agreement.
All subcontracts shall adopt the same order of precedence among contract documents as specified in a Primary Agreement. This includes, but is not limited to, the hierarchy of the Master Services Agreement, any Primary Agreements, and all Statements of Work (SOWs). In the event of any conflict or inconsistency among documents incorporated into a subcontract, the order of precedence set forth in the Primary Agreement shall govern and control. Failure to include this order of precedence provision in any subcontract shall constitute a material breach of this Agreement.
All subcontracts shall expressly incorporate the same governing law, venue or arbitration provisions, and waiver provisions as set forth in this Agreement. Subcontractors shall ensure that these provisions are included in all agreements with their lower-tier subcontractors and suppliers. Failure to include such provisions in any subcontract or lower-tier agreement shall constitute a material breach of this Agreement.