Provider Agreement and Terms of Use

Effective as of July 20, 2020

 

1. Introduction
Welcome to the DMG Provider Network! Divisions, Inc. dba Divisions Maintenance Group (“Divisions,” “DMG,” “we,” “us,” “our”) provides technology-based solutions for facilities maintenance through a web-based portal (www.mydivisions.com) and mobile applications (In Position). Please read this Provider Agreement and Terms of Use (“Provider Agreement”) and any other terms referenced in this document carefully. Throughout the document, you may be referred to interchangeably as “you,” “your,” and “Provider.” If you are a company, organization, or other legal entity, “you,” “your,” and “Provider” also includes all representatives, agents, contractors, employees, and affiliates.

By creating an account through www.mydivisions.com or otherwise using any of DMG’s services, including all associated features and functionalities, websites, user interfaces, content, and software applications associated with our services (collectively “Services”), you are agreeing to be bound by the terms of this Provider Agreement. If you do not agree with (or cannot comply with) this Provider Agreement, you may not use any Services.

2. Changes to the Provider Agreement
Occasionally DMG may make changes to this Provider Agreement. When DMG makes a change, DMG will alert you about any changes as appropriate, e.g., by displaying a prominent notice within the Services, updating the “Last Updated” date of this Provider Agreement, or sending you an email. It is your responsibility to periodically review this Provider Agreement to stay informed of any updates. The amended Provider Agreement shall be effective upon the effective date indicated in such notice or posting. Your continued use of the Services after changes have been made will constitute your acceptance of the changes. If you do not wish to continue using the Services under the new version of the Provider Agreement, you may terminate your account by contacting DMG Provider Relations at (provider.relations@divisionsinc.com).

3. Use of Services
DMG grants you a limited, non-exclusive, non-transferable, and revocable license to use our Services. You may only use the Services in the manner in which your access is intended by DMG and in strict compliance with the terms of this Provider Agreement and applicable law. DMG reserves the right to terminate, suspend, or restrict your use of the Services without notice or liability, for any reason, at our sole discretion. Specific services, such as the InPosition mobile app, may have additional terms and conditions (“Service Terms”). Your use of the Services will also be subject to the applicable Service Terms. If the terms of this Provider Agreement are inconsistent with the Service Terms, those Service Terms will control.

By creating an account, you agree: (1) that you are able to and have the appropriate authority and authorization to create a binding agreement with DMG; (2) to provide true, accurate, current, and complete information when requested by DMG; (3) to maintain and promptly update this information to keep it true, accurate, current, and complete; and (4) to use limited-access portions of the Services only using the access credentials issued to you by DMG. If you create an account on behalf of a legal entity, you further represent and warrant that: (1) the legal entity is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation or organization; (2) the legal entity has taken all corporate or company action necessary to authorize its full performance under this Provider Agreement; and (3) you are authorized to bind the legal entity to the Provider Agreement. If you have previously had your access to or use of the Services terminated by use, you may not access or use any Services under any circumstances.

You may not under any circumstances: (1) use the Services for any illegal purpose; (2) attempt to gain unauthorized access to DMG’s data or the data of other uses of DMG’s Services; (3) use the Services for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the Services; (4) use any proprietary information, user interfaces, user experiences, or other intellectual property of DMG without the prior written consent of DMG; and (5) if accessing the Services via a mobile application, decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application.

4. Intellectual Property Rights
The Services are DMG’s proprietary property and all trademarks, service marks, logos, source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics which form any part of the Services (collectively, the “Content”) are owed by, controlled by, or licensed to DMG. No right, title, or interest in the Services or Content is transferred to you and all rights not expressly granted are reserved. The Content is provided “AS IS” for your information and use. Except as expressly provided in this Provider Agreement, no part of the Services or Content may be exploited for any commercial purpose whatsoever.

5. Service Orders, Service Agreements, and Contract Documents
DMG is in the business of providing repair, maintenance, installation, and other facilities maintenance services to clients of DMG. DMG may retain Provider to furnish labor, materials, and services (“Work”) by issuing a Service Order to Provider. DMG is not required to issue any Service Orders under this Provider Agreement. Each Service Order will state the name, location, and description of the Project, the time for performance of Work, compensation for performance of Work, and other terms relevant to the specific Service Order.

The “Contract Documents” for each Service Order are: (a) this Provider Agreement; (b) the Service Order, including documents listed in or referenced in the Service Order; (c) any agreement between DMG and the owner or manager of the subject property (the “Owner”) which relates to the Work or Project (“Owner Agreement”); and (d) all drawings, specifications, and addenda applicable to the Work or Project. The Contract Documents are intended to be read together and give effect to all provisions so that none are rendered meaningless. However, if there is an irreconcilable difference between or within any of the Contract Documents, Provider shall abide by the term providing the higher quality of Work or greater obligation on Provider.

The Contract Documents for each Service Order form a separate “Service Agreement,” which represents the entire and integrated agreement between Provider and DMG, superseding prior negotiations, representations, or agreements, either written or oral. Provider and DMG shall be mutually bound to the terms of the Service Agreement and, to the extent any provision of the Owner Agreement applies to Provider’s Work, Provider shall assume towards DMG all obligation and responsibilities that DMG, under the Owner Agreement, assumes toward the Owner. DMG shall have the benefit of all rights, remedies, and redress against Provider that Owner, under the Owner Agreement, may have against DMG.

The Service Agreement may only be amended or modified by a writing signed by both Parties.

6. The Work
Provider shall perform and otherwise provide at its own cost all tools, equipment, materials and labor necessary to complete the Work in accordance with the specifications of the applicable Service Agreement. If any services, materials, functions, or responsibilities not specifically described in the Contract Documents are required for, incidental to, implied by, or inherent in the proper performance and provision of the Work, they shall be deemed to be included within the Work as if specifically described in the applicable Service Agreement. Provider shall ensure all Work is performed, whether by Provider or on behalf of Provider, diligently and in a good and workmanlike manner using Provider’s best skill and judgment and in accordance with all applicable laws and regulations. Provider shall use an adequate number of properly trained personnel that are appropriately licensed to ensure the Work is completed in a timely manner, with time being of the essence. Provider will complete the Work in accordance with any rules or regulations adopted by DMG or Owner.

If Divisions, any Owner or any client of Divisions shall determine in its sole discretion Provider failed to adequately or timely provide any work/services to be performed or materials to be furnished, Divisions may provide backup service or materials and engage a third party to perform Provider’s duties agreed to herein and/or any Service Agreement, and to recover any damages caused by Provider’s failure to perform any part of the agreed upon service or materials, including but not limited to: (i) Provider shall indemnify, defend, and hold Divisions harmless from all damages caused by Provider’s failure to perform, Provider’s incomplete performance, of the duties of Provider agreed to herein; and (ii) without notice to Provider, Divisions may provide out-sourced individuals, replacement providers or materials, to be indemnified by Provider. Without limiting any other remedy provided for in this Agreement or under law, Divisions may offset any then-existing or future invoices of Provider as payment or partial payment to cover the cost of replacement providers/materials, to correct Provider’s inadequate work or materials or as an offset to the recoverable damages arising from Provider’s failure to perform service.

a. Deviations and Substitutions
Provider shall not deviate from the Contract Documents or substitute materials (including “or equal” materials) without DMG’s prior written consent. Provider, prior to performing any Work, shall notify DMG of any actual or potential deficiencies, discrepancies, ambiguities or errors in any Contract Documents affecting the Work. Provider may request a substitution or deviation in writing to DMG, which may be approved at DMG’s sole discretion. Provider shall be liable for any additional cost to DMG or others resulting from such deviations or substitutions.

b. Changes in the Work
DMG shall have the right to make changes to the Work to be completed and the timing of the Work under any Service Agreement. In the event of a change, Provider shall promptly submit to DMG a detailed written breakdown showing the difference in quantity of labor and materials affected by such change and reasonable valuation of the change in accordance with the provisions of the Service Agreement. Where the change results in additional Work, DMG shall in no event be liable to Provider for a greater sum than it obtains from the Owner for such additional Work, less reasonable overhead and profit to DMG. DMG’s receipt of payment from the Owner for any additional Work is an express condition precedent to DMG’s obligation to make payment to Provider, and Provider expressly assumes the risk of the Owner’s nonpayment.

c. Permits, Notices, and Compliance with Laws
Provider shall give notices and comply with applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities bearing on performance of the Work by Provider. Provider shall, at its own expense, secure and pay for permits, fees, licenses, and inspections necessary for proper execution and completion of the Work. Provider shall comply with federal, state, and local tax laws, social security acts, unemployment compensation acts, and workers’ compensation acts to the extent applicable to the Service Agreement. Provider authorizes DMG to deduct, but DMG has no obligation or responsibility to deduct, the amount of any taxes, contributions, or payments which may be due from Provider or on account of Provider’s performance of Work, in order to insure such payment. If requested by DMG, Provider shall deliver all certificates of approval which are required for performance of the Work.

Provider represents that prior to and during the term of this Provider Agreement and any Service Agreement, that: (i) Provider is in compliance with all immigration laws, statutes, rules, codes, orders and regulations; (ii) Provider has and will continue to properly maintain all records required by the United States Citizenship and Immigration Services (USCIS), including Form I-9 for each of Provider’s employees; (iii) Provide will respond in a timely fashion to any inspection requests related to Provider’s immigration records; (iv) Provider has confirmed the identity and eligibility of its employees to work in the United States via the E-Verify program; (v) Provider has and will continue to periodically re-verify eligibility and identity; (vi) Provider will conduct a biannual audit of Provider’s Form I-9s and promptly correct any defects or deficiencies identified; and (vii) Provider will fully cooperate in all respects with any audit, inquiry, inspection or investigation that may be conducted by the USCIS of Provider or any of its employees.

d. Site Investigation
For each Service Agreement, Provider represents to DMG that Provider has made such investigation and inspection as to the nature and location of the Work and general and local conditions at the Project site. Provider agrees that such site investigation has included, at a minimum, the examination of: (i) the location, condition, layout of structures, and nature of the site and surrounding areas including, if relevant, the character of the surface and subsurface conditions or obstacles to be encountered on, under and around the Project site and any access limitations at the Project site; (ii) generally prevailing and potential weather conditions; (iii) anticipated labor supply and costs; and (iv) availability and cost of materials, tools, and equipment. Provider has compared said conditions with the specifications relating to the Project. Provider agrees that it is satisfied as to the conditions of the Project site and its site investigation so as to completely and timely complete its Work. No payment or allowance shall be made on account of Provider’s error in or failure to properly investigate the site.

e. Professionalism
Provider agrees to conduct its operations and complete its Work in a professional manner. Provider agrees the personnel used to complete the Work shall do so in attire satisfactory to DMG. Provider shall keep the Project site and surrounding area free from waste materials or rubbish caused by Provider’s operations. If Provider fails to clean up as required, DMG may charge Provider, or deduct from any subsequent payment to Provider, one and a half times DMG’s direct costs.

Provider agrees to use reliable transportation that does not detract from the appearance of the Project site or leak fluids that may damage parking lots, driveways or sidewalks. Provider shall not interfere with other work being performed at the Project or the business operations of the Owner. Provider shall not allow any radios or electronic devices that interfere with or distract from the focus of the Work or otherwise create a nuisance or safety concern. Provider will keep the worksite free from the influence or presence of smoking, drugs, and alcohol. If Provider’s personnel are found to be unacceptable to DMG for any reason, Provider shall promptly remove and replace such personnel with another who is acceptable to DMG, at no additional cost. Provider shall use reasonable care to ensure the personnel performing the Work are professional and responsible workers and shall, at a minimum (1) perform a criminal history and sex offender registry search as part of Provider’s hiring process or prior to the individual performing Work, (2) in the case of union workers, verify the individual is in good standing, and (3) perform period drug testing.

Provider agrees to conduct its operations and complete its Work in a professional manner. Provider agrees the personnel used to complete the Work shall do so in attire satisfactory to DMG. Provider shall keep the Project site and surrounding area free from waste materials or rubbish caused by Provider’s operations. If Provider fails to clean up as required, DMG may charge Provider, or deduct from any subsequent payment to Provider, one and a half times DMG’s direct costs.

f. Accident and Safety Reporting
While performing Work, Provider shall inspect and immediately notify DMG by email (safetyreports@divisionsinc.com) regarding any condition in or around the Work site that could present a safety issue to person or property, unless such condition can be resolved through the immediate Work performed by such Provider. For purposes of this inspection requirement, the Work site shall mean any area within and around the area in which Provider is performing the Work.

In the event of an accident involving personal injury or property damage on or around the Work site, Provider shall notify DMG within twenty-four (24) hours after the occurrence. Provider’s notice shall include a report identifying all relevant facts pertaining to the accident.

g. Liens
To the fullest extent permitted by law, Provider hereby waives and releases, on behalf of itself, and all of the Provider’s Subs all liens now existing or which may hereafter arise for work or labor performed or material furnished under this Agreement and/or the Contract Documents, and Provider and Provider’s Subs shall complete said work and labor and deliver the materials within the time specified, free and clear of all liens. Provider shall pay all costs, losses, and expenses of any kind (including attorneys’ fees) incurred by Divisions, any Owner and/or any client of Divisions in any suit or proceeding related to any lien filed in connection with any work or services performed, or materials furnished, pursuant to this Agreement and/or the Contract Documents. Notwithstanding any provision herein to the contrary including, without limitation Section 25 (Governing Law), the law of the State where the Project is located shall control and govern with respect to interpretation and enforcement of this Section 34, without regard to any conflicts of law provisions. In any case, should this provision be deemed unenforceable under the applicable governing law then Provider agrees to: (i) take all necessary steps to keep the Projects lien free; (ii) obtain lien waivers from Provider’s Subs as necessary to comply with these obligations; and (iii) remove any liens filed by Provider or Provider’s Subs on a Project by posting a bond or any other necessary steps upon demand by Divisions.

h. Use of DMG Property
Provider may, in exchange for a mutually agreed upon fair rental payment and with Divisions’ consent, use equipment and supplies owned, leased and/or otherwise supplied by Divisions. Provider agrees that Divisions withhold from compensation due to Provider and/or back charge any expense or costs incurred by Divisions for such use. Provider further expressly agrees to indemnify, defend and hold Divisions harmless for any and all damages to and/or caused by any such equipment and/or supplies, which may result from such use and/or for any late charges, fees or other costs incurred by Divisions relative to such equipment or supplies.

7. Taxes and Insurance
Provider shall fully comply with all revenue laws pertaining to the Work. Provider shall pay all sales, consumer, use, or similar taxes for the Work. Provider shall obtain and maintain all insurance required here or elsewhere in the Service Agreement from an insurance company that is reasonably acceptable to DMG and lawfully authorized to do business in the state where the Work is be performed. Provider’s insurance carrier must maintain, at a minimum, an AM Best rating of “A-.” Prior to commencing Work under any Service Order or Service Agreement, Provider shall, at its own expense, secure, and maintain during the term of each Service Agreement, including any applicable warranty period, all of the insurance required below, or as required under the Service Agreement, whichever is greater.

a. General Liability Insurance
Comprehensive General Liability or Commercial General Liability insurance utilizing Insurance Services Organization (ISO) Forms CG 00 01 10 01 or CG 00 01 04 13 or an equivalent, covering all operations by or on behalf of Provider, providing insurance for bodily injury liability and property damage liability for the limits of liability and including coverage for Provider’s premises and operations, products and completed operations, contractual liability insuring the obligations assumed by Provider in this Agreement, broad form property damage (including completed operations), explosion, collapse and underground hazards, and personal injury liability. ANY WORK INVOLVING EXTERIOR INSULATION FINISHING SYSTEMS (EIFS) OR SIMILAR SYSTEM SHALL NOT BE EXCLUDED FROM GENERAL LIABILITY COVERAGE PROVIDED BY PROVIDER AND/OR PROVIDER’S SUBCONTRACTORS. Completed Operations coverage will be maintained for two (2) years after Project completion.

Provider’s General Liability policy shall include a waiver of the insurance carrier’s right of subrogation against the Additional Insureds using ISO form CG2404 or its equivalent.

If Provider’s Work entails snow removal services, then Provider’s General Liability policy shall include an endorsement for snowplow operations coverage utilizing ISO form CG 22 92 12 07 or its equivalent.

Limits of Coverage should be provided in amounts not less than:

• $1,000,000 per occurrence (Bodily Injury and Property Damage)
• $1,000,000 products and completed operations aggregate
• $1,000,000 general aggregate that applies on a per Project basis
• $1,000,000 personal and advertising injury

Provider’s General Liability policy shall name the following as additional insureds on a primary and non-contributory basis for ongoing and completed Work utilizing ISO form CG 2010 (07/04 or 04/13) and CG 2037 (07/04 or 04/13) or the combined equivalent: (i) DMG; (ii) the Owner; (iii) DMG’s client, if not the owner of the Project; (iv) any person or entity required by contract related to such Project; and (v) the respective directors, officers, employees, agents, affiliates, subsidiaries, and successors of the parties named in the immediately preceding subsections (i) through (iv) (the “Additional Insureds”). It is expressly agreed and understood by Provider and DMG that the insurance afforded the Additional Insureds shall be primary insurance and that any other insurance carried by DMG shall be excess of all other insurance carried by Provider and shall not contribute with Provider’s insurance. It is further agreed that Provider’s General Liability coverage shall not include exclusion endorsement CG2294 (Exclusion-Damage to Work Performed by Subcontractor) or its equivalent.

b. Automobile Liability Insurance
Provider shall carry Automobile Liability insurance, including coverage for all owned, hired and non-owned automobiles. The limits of liability shall be not less than $1,000,000 combined single limit each accident for bodily injury and property damage. Provider’s Automobile Liability insurance shall include the Additional Insureds as additional insureds. Provider’s Automobile Liability insurance shall include a waiver of the insurance carrier’s right of subrogation against the Additional Insureds.

c. Workers’ Compensation and Employers’ Liability Insurance
Provider shall maintain Workers’ Compensation insurance as required by any applicable law or regulation along with Employers’ Liability insurance shall be provided in amounts not less than:

• $1,000,000 each accident for bodily injury by accident
• $1,000,000 policy limit for each bodily injury by disease
• $1,000,000 each employee for bodily injury by disease

Jones Act and/or United States Longshoreman & Harbor Workers Act Coverage shall be included where applicable. The Workers’ Compensation insurance shall include a waiver of the insurance carrier’s right of subrogation against the Additional Insureds where permitted by state law.

In the event that DMG incurs costs of any type including, but not limited to, increased workers’ compensation premiums, rates, or other expenses or charges as a result of Provider’s failure to obtain and/or maintain in full force and effect workers’ compensation coverage, then DMG shall be entitled to complete indemnity from Provider for all such costs including reasonable attorneys’ fees and litigation costs and expenses. Further, if Provider is performing work on a project in the State of Ohio or any other monopolistic state with respect to Workers’ Compensation, the policy shall also include Employers’ Liability Coverage (stop gap) covering “substantially certain to occur” claim with limits of not less than:

• $1,000,000 each accident for bodily injury by accident
• $1,000,000 policy limit for each bodily injury by disease
• $1,000,000 each employee for bodily injury by disease

DMG makes no representation or warranty with respect to the physical conditions or safety of any Project site. Provider represents and warrants: (i) the Provider shall, at its own expense, preserve and protect from injury its employees engaged in the performance of the Work and all property and persons which may be affected by its operations in performing the Work; (ii) the prevention of accidents to workers engaged in the Work and others affected by the Work is the responsibility of the Provider; (iii) Provider and those acting on behalf of Provider shall comply with all federal, state, labor and local laws, regulations and codes concerning safety as shall be applicable to the Work and to the safety standards established by DMG during the progress of the Work; and (iv) Provider and those acting on behalf of Provider shall clean up the Project site on a daily basis in a manner that will not interfere with the use or operation of the Project.

Provider shall insure that all tiers of the Provider’s subcontractors shall procure and maintain insurance in like form and amounts including the Additional Insured requirements, all as set forth above. Copies of the certificate must be provided upon request by DMG and be obtained prior to said subcontractor entering the Project site.

Provider shall have full responsibility for maintaining Provider’s Equipment and Tool Coverage on all tools and equipment, whether owned by, leased to, or loaned to Provider.

Provider shall obtain such additional insurance coverage as required by the Service Agreement or as reasonably requested by DMG from time to time.

Upon request, Provider shall provide DMG a current certificate of insurance executed by Provider’s insurance company or its authorized agent indicating that the Provider has the insurance policies and coverage required. Upon request, Provider shall provide DMG a copy of insurance policies and endorsements with a certification from Provider’s insurance company(s) that such policies are in full force and effect. Provider acknowledges that DMG may share and use, for any legitimate business purpose, the Provider’s insurance and other business information with the Owner and DMG’s clients, affiliates, and any third parties from time to time in DMG’s sole discretion.

Provider shall be responsible to DMG, at no cost to DMG, for the payment of any required deductible in connection with the insurance coverages provided above. Provider shall be responsible for any loss arising out of the denial of coverage by Provider’s insurance carrier.

8. Warranty
Provider represents and warrants all of the following: (i) that all Work, supplies, and materials furnished by or on behalf of Provider in connection with the Work shall be in conformance with the Contract Documents; (ii) the correctness of all work and goods provided by Provider, or on behalf of Provider, for a period of twelve (12) months, or such longer time as the Contract Documents may require, from the date Work has been fully performed in accordance with the Contract Documents (the “Warranty Period”); and (iii) all goods, equipment, or other property provided as part of the Work by Provider, or on behalf of Provider, shall be new and of merchantable quality and fit for its intended purpose. Provider will correct any default or defect in the Work, supplies, or materials that is discovered or occurring within the Warranty Period without additional cost and neither the final payment of the applicable Service Agreement compensation by nor the final acceptance of the work shall relieve Provider from the responsibility of correcting any default or defect. Provider shall also take all necessary action in order to activate, deliver, and maintain any existing manufacturers’ warranties and shall not take any action that shall void any such warranty.

9. Invoicing and Payment
Provider shall submit invoices and any supplemental required information for the Work performed in accordance with the applicable Service Agreement. All proposals and Service Agreement pricing shall be inclusive of all taxes associated with the Work. For Service Agreements relating to routine Work, Provider shall invoice DMG monthly for Work performed during the previous calendar month and Provider shall submit each invoice no later than the 15th day of the month. For Service Agreements relating to non-routine or service call Work, Provider shall invoice DMG in accordance with the requirements of the Service Agreement and no later than sixteen (16) calendar days after substantial completion of the Work.

If Work is not invoiced by Provider within the deadlines set forth above, Provider shall forfeit any such amounts owed. Invoices must have the following information: (a) invoice number; (b) invoice date; (c) Service Agreement number; (d) detailed description of Work provided; and (e) itemized invoice amount. Any invoice that fails to include the required information will be rejected and must be resubmitted within the original period permitted above. Unless otherwise permitted by DMG or required by law, DMG will pay Provider all undisputed amounts within 55 days of receipt. However, under no circumstances will DMG be liable to Provider for a greater sum that DMG obtains from the Owner for the invoiced Work. DMG’s receipt of payment from the Owner is an express condition precedent to DMG’s obligation to make payment to Provider, and Provider expressly assumes the risk of the Owner’s nonpayment. In the event DMG releases payment to Provider but DMG does not ultimately receive payment from the Owner, Provider agrees to remit such payments to DMG upon request.

Provider shall pay promptly when due its labor, material, equipment, and transportation costs. If Provider fails to do so, DMG, with or without notice to Provider, at its election, may make such payments directly and deduct the costs from any compensation due Provider under any Service Agreement. If the payments made by DMG exceed the balance due Provider, Provider shall reimburse DMG any excess amounts immediately upon demand.

10. Confidentiality, Non-Circumvention, and Non-Solicitation
Provider acknowledges that (a) DMG has valuable client and referral relationships, (b) as part of a Service Agreement, Provider may interact with DMG’s clients and referral sources, and (c) Provider may receive or be exposed to Confidential Information. “Confidential Information” means any information concerning DMG, whether written or oral, including but not limited to information concerning DMG’s business, markets, intellectual property, use of technology, proprietary technology, business plans, projections, financial results or financial information, products, services, pricing, actual or prospective customers, suppliers, or vendors, furnished by or on behalf of DMG (including, but not limited to any and all trade secrets of DMG), whether disclosed now, hereafter or at any time in the past, to the extent that the same are treated as confidential or proprietary by DMG. Notwithstanding the forgoing, Confidential Information shall not include information which: (i) is or becomes generally available to or known by the public at large (other than as a result of a disclosure by Provider in breach of any of its obligations under this Provider Agreement); or (ii) which Provider can demonstrate is or becomes available to Provider from a source other than DMG or DMG’s clients or referral sources, provided that such source is not subject to a confidentiality agreement or similar agreement with DMG. “Confidential Information” shall also include, but not be limited to, all memoranda, notes, reports, lists, documents, and other media, whether in written, electronic or any other form, to the extent that the foregoing contain or are related in any way to any Confidential Information.

Provider shall maintain the strict confidentiality of any Confidential Information that it receives and shall use the Confidential Information nor disclose any part of it to any other person, other than to carry out Provider’s duties under a Service Agreement. Provider shall be strictly liable for enforcing the terms of this provision as to Provider’s employees, contractors, and any other related party, and shall take all such actions, legal or otherwise, to the extent necessary to cause them to comply with the terms and conditions of this provision and thereby prevent any disclosure of the Confidential Information.

At no time shall Provider, directly or indirectly, interfere with DMG’s interest in or relationship with any DMG client, nor shall Provider circumvent or attempt to circumvent DMG by contacting any DMG client concerning a Service Agreement without the prior written consent of DMG. However, DMG acknowledges that Provider may have performed services for DMG’s clients prior to Provider entering into this Provider Agreement and may continue its working relationship with any such client after the termination of this Provider Agreement, provided that, for a period of one (1) year after termination of this Provider Agreement, Provider shall not, on Provider’s own behalf or on behalf of others, solicit, divert or appropriate, or attempt to solicit, divert or appropriate, any business from any of DMG’s clients with whom Provider had any material contact, for purposes of providing products or services that are competitive with those provided by DMG.

This Section 10 is material to DMG’s agreement to engage Provider for Work, and if not for such section, DMG would not offer, enter, or continue a relationship with Provider. Provider agrees the obligations created above are necessary and reasonable to protect DMG and expressly agrees that monetary damages would be inadequate to compensate DMG for any breach by Provider. Accordingly, Provider agrees and acknowledges that any such violation or threatened violation will cause irreparable injury to DMG and that, in addition to any other remedies that may be available, in law, in equity or otherwise, DMG shall be entitled to obtain injunctive relief against Provider for the actual or threatened breach of this Provider Agreement without the necessity of proving actual damages.

Provider acknowledges Section 10 shall survive the termination of this Provider Agreement and the scope and duration of this Section are reasonable. If any of the covenants or provisions of this Section 10 are determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the parties contemplate that the tribunal making such determination shall reduce such extent, duration, scope or other provision and enforce it in its reduced form for all purposes contemplated by this Provider Agreement. Provider agrees to pay all legal costs of DMG, including reasonable attorneys’ fees and discovery costs, in any successful legal action brought by DMG to enforce this Section 10.

11. Termination
DMG may, at any time, terminate the Provider Agreement or any individual Service Agreement for DMG’s convenience and without cause. Upon receipt of notice from DMG of such termination, Provider shall (i) cease operations as directed by DMG in the notice, (ii) take all action necessary for the protection and preservation of the Work, and (iii) terminate all existing subcontracts and purchase orders and enter into no further subcontractors and purchase orders. In the event of termination, DMG will pay Provider for Work properly performed prior to the effective date of termination.

Upon the termination of this Provider Agreement or any individual Service Agreement for any reason at any time, Provider shall immediately return to DMG all of DMG’s property, documentation, trade secrets, confidential information, and proprietary materials in Provider’s possession, custody, or control. Provider acknowledges that continued possession or use of this information after termination may be deemed a conversion or theft of proprietary materials. After termination, Provider further agrees to cooperate reasonably with all matters requested by DMG relating to matters within the scope of the parties’ relationship under this Provider Agreement.

Provider’s covenants, representations, warranties and other provisions under this Provider Agreement, including Provider’s obligation to indemnify, defend, and hold harmless, shall survive any termination of this Provider Agreement and any Service Agreement.

12. Disputes and Limitation of Liability
PROVIDER AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTES, PROBLEMS, OR DISSATISFACTION WITH DMG IS TO CEASE THE USE OF DMG’S SERVICES. IN NO EVENT WILL DMG, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OF OR INABILITY TO USE DMG’S SERVICES, THE PROVIDER AGREEMENT, OR ANY SERVICE AGREEMENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER DMG HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO DMG’S SERVICES, THE PROVIDER AGREEMENT, AND SERVICE AGREEMENTS IN EXCESS OF THE COMPENSATION PAID TO PROVIDER UNDER THE APPLICABLE SERVICE AGREEMENT.

Nothing in the Provider Agreement removes or limits DMG’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence.

PROVIDER AGREES THAT ANY CLAIM AGAINST DMG MUST BE COMMENCED, BY FILING AN INDIVIDUAL ACTION IN ACCORDANCE WITH THIS SECTION, WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD. THIS SECTION APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

This Provider Agreement and all Service Agreements will be governed by and construed in accordance with the laws of the Commonwealth of Kentucky applicable to agreements made and entirely to be performed within such jurisdiction, without regard to its conflict of law provisions; provided, however, that if an obligation of Provider hereunder is invalid or unenforceable under the laws of the Commonwealth of Kentucky, but such obligation would be valid and enforceable under the State where the Project is located or the jurisdiction where Provider’s principal office is located, then the laws of such other State shall control with respect to such obligation only.

Provider agrees that any action to interpret or enforce this Agreement shall be brought and maintained only in the state or federal courts located in Kenton County, Kentucky. Provider consents to the exclusive jurisdiction of such courts and waives any objection Provider might otherwise have to jurisdiction and venue in such courts and Provider consents to service by any method permitted by such courts. If Provider files an action in any other court, then Provider shall pay DMG’s attorneys’ fees and costs associated with moving the action to the courts of exclusive jurisdiction. Final judgment (certified or any indebtedness therein described) in any such action or proceeding shall be conclusive and may be enforced in any court of competent jurisdiction by suit on the judgment. Notwithstanding the above, DMG shall have the right to bring an action or claim, including but not limited to a cross claim or third party claim against Provider to interpret or enforce this Provider Agreement or any Service Agreement in a state or federal court in which a claim or demand has been asserted against DMG arising out of, relating to, or in connection, in whole or in part, with any services or product that were provided or were supposed to be provided by Provider pursuant to the applicable Service Agreement.

13. Indemnification
DMG and Provider agree that, to the fullest extent permitted by law, Provider shall indemnify, defend, and hold harmless DMG, its clients and customers, the Owner and all of their respective tenants, lessees, shareholders, members, managers, officers, directors, representatives, agents, other subcontractors, employees and any other person or entity claiming through them and any other person or entity acting in a similar capacity (collectively, “Indemnitees”) from and against all claims, actions, demands, suits, judgments, damages, losses, awards, expenses and any other charges of any other kind (singularly, “Loss” and collectively, “Losses”) including, but not limited to, reasonable attorneys’ fees that are alleged to or actually arise out of, relate to, or are incurred in connection, in whole or in part with: (a) the negligent or intentional acts or omissions of Provider, its agents, representatives, officers, directors, shareholders, members, managers, employees, subcontractors, material suppliers, equipment providers, or any other person or entity acting in a similar capacity on behalf of Provider; (b) the performance or non-performance of Provider’s Work under any Service Agreement; and/or (c) breach by Provider of any representation, warranty or other provision of this Provider Agreement or any Service Agreement, including but not limited to the enforcement of Provider’s duty to defend and indemnify against Losses. By entering into this indemnification agreement, Provider expressly and specifically waives any workers’ compensation immunity or any non-waivable rights to which it would otherwise have been entitled whether said immunity or rights are constitutional, statutory or otherwise. Provider’s duty to defend or pay for the defense (including but not limited to legal representation) of any and all Indemnitees against potential Losses arises as soon as any of the named Losses are alleged to have occurred regardless of whether Provider intends to assert a defense against liability for such Losses and whether Provider is ultimately held not to be liable as a result of Provider’s asserted defense. DMG shall have the right to offset any amount owed to Provider under or in connection with any Service Agreement (“Offset”) against any payments deemed owed to Provider by DMG under all Service Agreements, including, without limitation, Offset for any indemnification deemed by DMG to be due by Provider under this provision. In the event DMG determines a Loss has occurred or Provider’s insurance carrier has refused to accept written tender requesting indemnification or defense for any such Loss, in addition to any right of Offset, DMG may withhold any amounts due Provider at the sole discretion of DMG, not as a liquidated damage, but as an advance (“Advance”) towards any indemnifiable amounts. Any Offset or Advance, as provided herein, shall be in addition to and in no way limit any other rights or remedies available under this Provider Agreement and applicable law.

14. Miscellaneous
DMG reserves the right to audit Providers books and records with respect to performance under this Agreement or any Service Agreement.

Provider, its employees, and its agents shall not be entitled to receive any holiday pay, sick pay, vacation pay or any other benefits from DMG.

Provider shall not be an agent of DMG and shall not be authorized to enter into contracts or agreements binding on DMG without the express written approval of DMG.

The relationship of the parties established by this Provider Agreement is one of independent contractor, and nothing herein shall be construed to establish a principal-agent, employer-employee, partnership or joint venture relationship between the parties.

Provider is free to perform services for any other company at any time provided such engagements do not interfere with its obligations to DMG as set forth under the terms of this Provider Agreement.

This Provider Agreement and any of the other Contract Documents may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Delivery of an executed counterpart of a signature page to a Contact Document, regardless of whether such signature is evidenced by electronic signature, manual signature or any other means intended to evidence a party’s consent and execution of such Contract Document, and regardless of whether such counterpart is delivered by telecopy or other verified electronic communication, will have the same effect and evidentiary value as a manually executed and delivered counterpart original to such Contract Document. In the absence of DMG executing this Agreement, DMG shall be deemed to have executed this Agreement resulting in an enforceable contract once Provider has executed the signature page hereof, submitted the same to DMG as herein described and DMG recognizes Provider as an approved independent contractor and assigns work to Provider.

No waiver of any right by DMG will act to waive any future enforcement of any right.

If any provision of this Provider Agreement is invalidated for any reason, it will be considered severable and will not affect the validity of the Provider Agreement as a whole.

All notices, requests, demands and other communications required by or permitted hereunder shall be in writing and shall be deemed to have been duly given when received by the other party to whom directed, provided however, that notice shall be conclusively deemed given at the time of its deposit in the United States mail when sent by certified or registered mail, postage prepaid, to the other party at such party’s principal place of business or sent by private carrier when signed by the receiving party. Any notice to Divisions shall be sent to its principal office at 1 Riverfront Place Suite 510, Newport, KY 41071.

This Provider Agreement may not, in part or in whole, be assigned nor subcontracted by Provider without the prior written consent of DMG, which such consent may be withheld by DMG in its sole discretion. In the event DMG so consents, Provider shall remain directly responsible and liable to DMG for the Work and activities of its assignee, for each such person’s compliance with this Provider Agreement and for each such person’s acts and omissions, as well as for any payments required to be made to such persons. DMG may assign this Agreement or any Service Agreement, in whole or in part, in its sole discretion.