Construction Services

IMPORTANT -- READ CAREFULLY

The terms of any agreement between and signed by the parties that is in effect as of the date of and related to the subject matter of the PO shall supersede the terms below in the event of any conflict.

1. SERVICES AND PAYMENT. Supplier agrees to provide those services and/or equipment set forth in the Purchase Order (“PO”) on a turnkey basis (the “Services”). Unless otherwise specified in the PO, within twenty (20) days after signature on the PO by the parties, Supplier will prepare a mutually agreeable schedule for delivery of the Services (“Schedule”). Modifications, such as accelerated deadlines, project delays or extensions, must be documented via a mutually agreeable change order signed by the parties (“Change Order”). Detailed invoices will be issued pursuant to the payment schedule as outlined in the PO, Schedule and/or any Change Order with payment due thirty (30) days following receipt of invoice to pgatouraccountspayable@pgatourhq.com. Purchaser shall only be responsible for reimbursing Supplier for reasonable and sufficiently documented out of pocket expenses or costs incurred by Supplier in fulfilling the PO if (a) such out of pocket expenses or costs were preapproved by Purchaser and (b) Supplier complies with Purchaser’s Business Expense Reimbursement Policy, copies of which are available upon request. Supplier shall include the PO number assigned by Purchaser on all associated invoices. Advance payments may be made under the PO upon submission by Supplier of complete and accurate invoices and approval by Purchaser’s Finance Division provided that the amount of such invoices, including all previously approved advance payments, does not exceed fifty percent (50%) of the total amount due under the PO. When the sum of all advance payments to Supplier reaches fifty percent (50%) of the total amount due under the PO, Purchaser will withhold further payments to Supplier until all items in the PO are complete. On completion or termination of the PO, Purchaser shall deduct from the amount due to Supplier all advance payments. If advance payments exceed the amount due, the excess amount shall be paid by Supplier to Purchaser on demand. Supplier acknowledges and agrees that Purchaser shall have payment obligations only to Supplier based on the PO, and if Supplier retains or contracts with third parties for equipment or services, that Supplier shall have complete and sole responsibility to pay any such third parties and will indemnify Purchaser for any amounts owed or claimed owed to such third parties.

2. TERMINATION. Either party may terminate the PO upon written notice to the other party if the other party fails to comply with any material term of the PO and fails to correct such default within ten (10) days of written notice of such default.

3. WARRANTIES, REPRESENTATIONS AND COVENANTS OF SUPPLIER. Supplier represents as follows as of the date of the PO, and where indicated covenants and agrees as follows:

(a) Organization; Authority. If Supplier is a corporate entity, Supplier is an entity duly formed, validly existing and in good standing under the laws of the state in which it is organized, and is qualified to do business in all jurisdictions in which the nature of its business or assets would so require. Upon request by Purchaser, Supplier will provide a completed IRS Form W-9. Supplier has full power and authority to enter into and perform the PO. The execution and delivery of the PO by Supplier and the consummation of the transactions contemplated hereby have been duly and validly authorized. The PO constitutes a legal, valid and binding agreement of Supplier and is enforceable against Supplier in accordance with its terms.

(b) Compliance with Applicable Laws. Supplier agrees that it and any employees, agents or contractors it may employ shall comply with all applicable laws, statutes, ordinances, rules and regulations of any governmental authority and with any rules or regulations promulgated by Purchaser.

(c) Warranty. Supplier’s Services and the results and proceeds thereof shall be fit for the purposes intended, shall meet the standards of the relevant industry, and shall not infringe upon or violate in any respect, when used by Purchaser in any manner or media, the rights of any person, firm or entity.

(d) Professionalism; Competency. Supplier agrees that its employees shall perform all duties and services hereunder in a professional and competent manner, in accordance with the standard of care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality.

4. PERMITS. Unless specifically otherwise stated in the PO, Supplier agrees to procure, at Supplier’s expense, any permits and licenses required to perform the Services.

5. PARKING. Purchaser may prescribe certain sections for designated use as parking spaces by Supplier’s employees on property controlled by Purchaser. In such instance, Supplier will require its employees to use only those sections designated for employee parking.

6. PROHIBITED SIGNAGE. While performing the Services on property controlled by Purchaser, Supplier will not place or permit any signage or logos of any type (except as might be specifically approved by Purchaser in advance in writing).

7. TRADEMARKS. Nothing herein gives either party the right to use the other party’s name, logos or trademarks in any manner whatsoever absent separate, prior written consent by the other party.

8. OWNERSHIP. All documents prepared or furnished by Supplier pursuant to the PO are instruments of Supplier’s professional service and Supplier shall retain ownership and property interest therein; provided, however, Supplier grants Purchaser a license to use such instruments for the purpose of constructing, occupying and maintaining the specific project associated with the Services; and, provided, further, however, that reuse and/or modification of such documents by either party shall be subject to the prior written approval of the other party.

9. INSURANCE. Supplier shall at its expense, maintain a policy or policies of commercial general liability, professional liability (E&O), automobile liability and worker’s compensation insurance with the premiums thereon fully paid in advance, issued by an insurance company or companies with a AM Best Rating of A-XI or better, licensed to transact business in the appropriate state or states, and which is acceptable to Purchaser. Said insurance shall afford minimum protection as follows:

(a) Commercial General Liability. Supplier shall provide commercial general liability insurance on an occurrence form with limits of not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate. The insurance should also provide coverage for products and completed operations One Million Dollars ($1,000,000), damage to rented premises One Hundred Thousand Dollars ($100,000), personal and advertising injury One Million Dollars ($1,000,000), and medical expense Five Thousand Dollars ($5,000). PGA TOUR, Inc. and its respective subsidiaries, including all officers, directors, and employees thereof, shall be named as additional insureds. Certificates of Insurance must be presented, prior to the commencement of the PO and at the time of each policy renewal, evidencing the above coverages and including provisions that coverage afforded under the policies shall not be materially changed or canceled until at least thirty (30) days prior written notice has been given to Purchaser.

(b) Professional Liability. Supplier shall provide professional liability insurance with limits of not less than Two Million Dollars ($2,000,000). Certificates of Insurance must be presented, prior to the commencement of the PO and at the time of each policy renewal, evidencing the above coverages and including provisions that coverage afforded under the policies shall not be materially changed or canceled until at least thirty (30) days prior written notice has been given to Purchaser.

(c) Automobile Liability. If applicable, Supplier shall provide automobile liability insurance of not less than Five Hundred Thousand Dollars ($500,000), combined single limit, per accident covering liability arising out of Supplier’s operation of any automobile including owned, hired and nonowned automobiles.

(d) Workers’ Compensation and Employers Liability Insurance. Supplier shall provide Workers’ Compensation in compliance with the appropriate federal and state laws and Employers Liability with limits of not less than Five Hundred Thousand Dollars ($500,000) per accident or disease in the jurisdiction of Supplier’s operation.

10. INDEMNIFICATION. Supplier covenants and agrees to indemnify and hold Purchaser and its officers, directors, employees, affiliated entities and their respective officers, directors and employees (collectively, the “Purchaser Indemnitees”) harmless from and against any and all losses, claims, damages, expenses, judgments, awards, petitions, demands or liabilities (including without limitation reasonable counsel fees whether incurred in preparation for trial, at trial, on appeal or in bankruptcy proceedings), joint or several, to which any of Purchaser Indemnitees may become subject (collectively, “Claims”) arising out of or in connection with (a) Supplier’s breach of its obligations under the PO, (b) a breach of the representations provided by Supplier under the PO, (c) the use or distribution of content or materials provided by Supplier to Purchaser pursuant to the PO that infringes any patent, trademark or any copyright or any other proprietary right of a third party enforceable in the United States, provided that Purchaser has not used any such content or materials provided by Supplier in a manner not authorized by the guidelines or rules provided by Supplier or otherwise outside the scope of the Services, (d) the negligence or willful misconduct by Supplier or its officers, directors, employees, contractors or agents in connection with the performance of Supplier’s obligations under the PO, except to the extent that any such Claim arises from the negligence or willful misconduct of Purchaser, or (e) failure to pay in full each third party retained or contracted by Supplier to help fulfill the Services hereunder. Purchaser will notify Supplier promptly upon receipt of notice of any such Claim and Supplier will assume responsibility for the defense thereof on behalf of the appropriate Purchaser Indemnitee at Supplier’s sole cost and expense. This indemnity shall survive termination or expiration of the PO.

11. DEFAULT. The following events will be deemed to be events of default by Supplier under the PO: (a) failure to provide the Services; (b) failure to comply with any term of the PO; (c) the filing by or against Supplier of any proceeding under the Federal Bankruptcy Code or any similar law; (d) the adjudication of Supplier as bankrupt or insolvent in proceedings filed under the Federal Bankruptcy Code or any similar law; (e) the insolvency of Supplier or the making of a transfer in fraud of creditors or an assignment for the benefit of creditors; or (f) the appointment of a receiver or trustee for Supplier, or any of the assets of Supplier. On the occurrence of any event of default, Purchaser will have the option upon written notice to immediately cancel the PO, in addition to and not in limitation of any other remedy permitted by law, in equity or by the PO.

12. RELATIONSHIP OF PARTIES. Supplier is an independent contractor and nothing herein shall be construed to make either party the partner, employee, joint venturer or agent of the other party and neither party shall have the right or power to obligate or bind the other in any manner whatsoever. Supplier shall not be deemed nor shall it or its agents, contractors or employees hold themselves out as Purchaser’s agents, contractors, employees or servants. Purchaser shall not withhold from any of the consideration hereunder, except when required by law, any amount for federal income taxes, social security, medicare, or any other legal deductions for any employees of Supplier, payment of which shall be Supplier’s responsibility. Further, Purchaser shall not make premium payments or contributions for any workers’ compensation or unemployment compensation benefits for any employees of Supplier, payment of which shall be Supplier’s responsibility.

13. ASSIGNMENT; SUBLETTING. Supplier will not assign or encumber the PO or any interest herein in whole or in part without the prior written consent of Purchaser; and any such assignment or encumbrance, without such consent will be void. Further, Supplier shall not transfer its interest in the PO by sale of its business without Purchaser’s prior written consent. Purchaser shall have the right to assign the PO without consent to a subsidiary or affiliate to optimize tax, legal or corporate planning.

14. MISCELLANEOUS. Purchaser and Supplier further agree as follows:

(a) Entire Agreement. The PO contains the entire agreement between the parties hereto related to the subject matter herein. The PO will not be altered, waived, amended or extended, except by a written agreement signed by the parties.

(b) Severability. If any clause or provision of the PO is illegal, invalid or unenforceable under any present or future law, the remainder of the PO will not be affected thereby. It is the intention of the parties that if any provision if held to be illegal, invalid or unenforceable, there will be added in lieu thereof a provision as similar in terms to such provision as is possible and is legal, valid and enforceable.

(c) Binding Effect. The provisions of the PO will be binding on and inure to the benefit of the parties and their respective heirs, personal representatives, successors and permitted assigns.

(d) Attorneys’ Fees. In any action related to the PO, the prevailing party shall be entitled to recover from the other the prevailing party’s costs, including reasonable attorneys’ fees, whether such fees and costs be incurred at trial, on appeal or otherwise.

(e) Waiver. The failure of either party at any time to require performance by the other of any provision of the PO shall in no way affect that party’s right to enforce such provision, nor shall the waiver by either party or any breach of any provision of the PO be taken or held to be a waiver or any further breach of the same provision or any other provision.

(f) Taxes. Unless otherwise provided in writing, Supplier agrees that all excise, occupational, sales, use, and other taxes, and other fees or duties, applicable to the sale or purchase of goods, the use or possession of same by Supplier, or applicable to Supplier’s work shall be paid by Supplier and Supplier shall indemnify and hold Purchaser harmless from and against all liability for such taxes. Notwithstanding anything contained in the preceding sentence, Supplier agrees that it shall provide Purchaser with a statement as to sales taxes owed, if any, by Supplier on goods covered by the PO under applicable state law in the state where such goods are first delivered.