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SUBCONTRACT TERMS AND CONDITIONS

Safety Program    Safety Blueprint

1. DOCUMENTS. The Subcontract consists of the Purchase Order issued by iconHD, LLC. ( “ICON”), these Terms & Conditions, any Supplemental Conditions attached to the Purchase Order, the Prime Contract, consisting of the agreement between the Owner and ICON and the other contract documents enumerated therein, modifications to the Prime Contract regardless of whether such modifications are executed before or after this Subcontract, and modifications to this Subcontract. These form the Subcontract, and are as fully a part of the Subcontract as if attached to hereto or repeated herein. Owner shall mean the party that has contracted with ICON to provide, in part, Subcontractor’s Work.

2. PRECEDENCE OF DOCUMENTS. In the event of conflicts or discrepancies among the Subcontract documents, interpretations shall be based on the following order from senior to subordinate: Modifications to the Subcontract, Supplemental Conditions, Purchase Order, Subcontract Terms and Conditions, Modifications to the Prime Contract, Prime Contract

3. MUTUAL RIGHTS & RESPONSIBILITIES. ICON shall assume toward the Subcontractor all obligations and responsibilities that the Owner, under the Prime Contract, assumes toward ICON, and the Subcontractor shall assume toward ICON all obligations and responsibilities which ICON, under such documents, assumes toward the Owner. ICON shall have the benefit of all rights and remedies against the Subcontractor which the Owner, under the Prime Contract, has against ICON, and the Subcontractor shall have the benefit of all rights and remedies against ICON which ICON, under the Prime Contract, has against the Owner, insofar as applicable to this Subcontract. Subcontractor represents that it has carefully examined this Agreement, including all of the Subcontract Documents, and understands the respective provisions.

4. SCOPE OF WORK. The scope of the work shall include all tools, materials, equipment, and work set forth in the Purchase Order or attachments thereto, including without limitation, any work incident to, reasonably implied or required to complete the scope of work (the “Subcontract Work” or the “Work”).

5. COMMENCEMENT/COMPLETION DATES. Subcontractor shall not commence or proceed with the Work until all of the following documents have been submitted and accepted by ICON: (a) an executed Purchase Order, (b) an insurance certificate conforming to the requirements of ICON and attached to the purchase order, and (c) payment and performance bonds, if required by the Supplemental Conditions. The Final Completion date is specified on the Purchase Order.

6. CHANGES TO THE WORK. The parties may modify the scope of the Work by mutually agreeing in writing as to any adjustments in scope and price as well as any modifications to the project schedule. No adjustments shall be made for any changes performed by Subcontractor that has not first been agreed upon in writing by ICON. Furthermore, ICON may order the Subcontractor, in writing, to make changes in the Work including additions, deletions, or other modifications to the scope of Work or project schedule and Subcontractor shall be obligated to proceed with such Change Directive. ICON’s right to issue any Change Directive and Subcontractor’s right to any adjustment in Purchase Price or extension of time shall be governed by the same terms and conditions by which the Owner may issue a Change Directive to ICON under the Prime Contract.

7. EXTENSION OF TIME. If commencement or progress of Subcontractor’s Work is delayed without the fault or responsibility of Subcontractor, the time for the Work shall be extended by Change Order to the extent obtained by ICON under the terms of the Prime Contract, and the progress schedule shall be revised accordingly.

8. SUBCONTRACTOR’S RESPONSIBILITIES. The Subcontractor shall supervise and direct the Subcontractor’s Work, and shall cooperate with ICON in scheduling and performing the Subcontractor’s Work to avoid conflict, delay in or interference with the Work of ICON, other subcontractors, or the Owner’s own forces. Any or all overtime necessary to complete the Work and to maintain the project schedule is included in the scope of Work and Purchase Price. Subcontractor shall provide adequate supervision for the Work and shall employ a competent and effective superintendent at the job site with the authority to act on behalf of and bind Subcontractor. Subcontractor shall not work on-site without ICON’s prior authorization. If the Prime Contract requires ICON to be on-site during Subcontractors performance, then Subcontractor shall not work on-site without ICON’s presence. Subcontractor shall exercise independent judgment, make decisions and exercise Subcontractor’s discretion so that the Work is properly performed, for the benefit of ICON and Owner. Subcontractor shall be responsible for any damage, theft, or defacing of the equipment during unloading and through installation, up to an including first operation of the equipment. Subcontractor shall be responsible for damage to existing components of facility resulting from the performance of the Work. All welds (shop and field) are to be performed by a certified welder and are subject to inspection. The Subcontractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish. The Subcontractor shall not be held responsible for unclean conditions caused by parties not under the control of Subcontractor. If the Subcontractor fails to clean up as provided in the Subcontract, ICON may, at its discretion, perform any cleanup and charge the Subcontractor for the Subcontractor’s appropriate share of cleanup costs. Subcontractor shall be responsible for correcting, at no additional cost, all punch list times identified during inspections. Any punch list items shall be completed within 2 weeks of notice.

9. SITE CONDITIONS. Subcontractor represents that it has visited the location where the Work is to be performed, as detailed on the Purchase Order, (the “Project Site”) and investigated and satisfied itself with respect to: (a) the nature and locality where Subcontractor’s Work is to be performed and the conditions and difficulties to be encountered, including access to the Project Site; (b) the condition of the soil together with the character, quality and quantity of subsurface and surface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from this Agreement, the Contract Documents, or an inspection of the Project Site; (c) the availability of water, electricity or other utilities, both temporary and permanent, and access to those utilities; (d) normal weather and environmental conditions at the Project Site; and (e) any other factor(s) which may affect Subcontractor’s Work.

10. ACCEPTANCE. ICON’s placement of any order with Subcontractor is expressly conditioned upon Subcontractor’s acceptance of all the terms and conditions of this Subcontract. Any additional or different terms or conditions which may appear in any communication from Subcontractor are hereby expressly excluded and shall not be effective or binding unless specifically agreed to in writing by ICON and no such additional or different terms or conditions in any printed form of Subcontractor shall become part of this contract despite ICON’s acceptance of goods or services unless such acceptance specifically recognizes and assents to the inclusion of such additional or different terms and conditions. Subcontractor’s commencement of performance pursuant to this Subcontract constitutes acceptance by
Subcontractor of all the terms and conditions of purchase contained on or attached hereto.

11. PAYMENT TERMS. ICON shall pay the Subcontractor the sum shown on the Purchase Order adjusted per any authorized changes in accordance with Section 6 (the “Purchase Price”). Unless otherwise stated on the face of the Purchase Order, the payment terms will be progress payments equal to 90% of the value of the Work performed, with 10% retainage until Final Completion. For any approved materials stored on-site plus any work performed or to be performed during any calendar month, Subcontractor shall submit to ICON a pay application for such work by the twenty-fifth (25th) day of that month. ICON shall review and either approve or reject such application. If the application is approved, ICON shall submit the application to the Owner for payment consistent with the payment terms of the Prime Contract. ICON’s receipt of pay allocable to Subcontractor’s Work from Owner shall be an absolute condition precedent to ICON’s obligation to make payment to Subcontractor.

The sum shown on the Purchase Order includes all applicable federal, state and local taxes, including without limitation sales, use, excise, privilege, transactional, gross receipts, ad valorem or any other transactional tax (“Tax” or “Taxes”). Subcontractor shall remit the full amount of any such applicable Tax and shall hold harmless and indemnify ICON from the claims of any governmental authority asserting that any such Tax is due and payable.

The faithful performance of this Subcontract, including payment of any amounts owed by Subcontractor to any persons furnishing work, labor, services, material or equipment, or for union trust fund payments, is a condition precedent to Subcontractor’s right to receive any partial payment or final payment. Any monies paid to Subcontractor under this Subcontract shall be deemed and treated as trust funds which shall not be diverted by Subcontractor for other purposes until such obligations have been discharged. ICON reserves the right to make payment by joint check or by direct check to Subcontractor’s material suppliers, subcontractors and any person or firm who has or asserts a right of action against ICON or ICON’s surety or who has or asserts lien or stop notice rights in connection with the Work. ICON shall back charge Subcontractor for any such amounts.

As a further condition precedent to ICON’s obligation to pay any amounts to Subcontractor, the Subcontractor shall furnish to ICON an affidavit or lien release or other such documentation as may be reasonably required on a form satisfactory to ICON indicating in detail the obligations incurred by the Subcontractor in connection with or as the result of the performance of the Subcontract, to whom incurred, the amount due or to become due therefore, and present receipted bills showing payment of all such obligations incurred and duly receipted certified payrolls indicating full payment to each of his employees of wages, all fringe benefits earned during the preceding payroll periods; and the Subcontractor shall deliver to ICON, in addition to the affidavits required, duly executed lien waivers from each of the persons to whom obligations were incurred, or alternatively an executed statement from each union from which labor was hired indicating that Subcontractors obligations were met with regards to such union’s laborers, and a similar release of all claims from the Subcontractor. In the event that the Subcontractor utilizes union labor, the Subcontractor agrees that is shall obtain proof in form satisfactory to ICON from each and every fringe benefit fund to which Subcontractor is obligated to make contributions, or for which its subcontractors or suppliers are responsible to make fringe benefit contribution payments, that all fringe benefits due in connection with work performed for this project have been paid.

The balance of the Purchase Price shall be payable thirty (30) days after the Prime Contract is completed and accepted and after the final payment has been received from the Owner. As a condition precedent to final payment, Subcontractor shall furnish to ICON duly executed final lien waivers from each of the persons to whom obligations where incurred, or alternatively an executed statement from each union from which labor was hired indicating that Subcontractors obligations were met with regards to such union’s laborers and a similar release of all claims from the Subcontractor. In the event any portion of such balance is retained by the Owner as guarantee covering the work involved herein, ICON may retain from the Subcontractor an equivalent amount until payment thereof is released by the Owner.

ICON may withhold, or on account of subsequently discovered evidence nullify, the whole or a part of any payment otherwise due under this Subcontract, or any other agreement with ICON, to such extent as may reasonably appear necessary to protect ICON from loss, including costs and attorneys’ fees on account of (a) defective work not remedied; (b) claims filed or reasonable evidence indicating probable filing of claim; (c) failure of Subcontractor to make payments properly to his subcontractors or for material, labor, equipment or union trust fund benefits; (d) a reasonable doubt that this Subcontract can be completed for the balance then unpaid; (e) damage to another subcontractor; or (f) failure to achieve sufficient progress with the subcontract work to meet the schedule for such work, or timely completion of the Work; or (7) any failure by Subcontractor to fully comply with all applicable safety rules, regulations and policies relating to the Work. When the above grounds are removed, such amounts as are then due and owing shall be paid or credited to Subcontractor.

12. SUBCONTRACTOR’S SUPPLIERS. The Subcontractor shall, within ten days of the date of this Subcontract, provide ICON with an accurate and full list of the names, addresses and cost breakdown of each sub-subcontractor or supplier or other party with whom it shall contract and who may have a right to file a Construction lien or a claim against ICON’s Payment Bond pursuant to the provisions of the law. The obligations of the Subcontractor to comply with the provisions hereof shall be a continuing obligation and the Subcontractor covenants that it shall furnish the name and address of such other sub- subcontractor and/or supplier or other parties with whom it enters into an agreement hereafter who may have a right to file a Construction Lien and/or claim against ICON’s Payment Bond.

13. INSURANCE. Subcontractor shall purchase and maintain insurance that will protect Subcontractor and ICON from claims arising out of Subcontractor operations under this Subcontract, whether the operations are by Subcontractor, or any of Subcontractor’s consultants or subcontractors or anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. Subcontractor shall maintain coverage and limits of liability as set forth in Exhibit I or as required by ICON in the Prime Contract, whichever coverage is greater. Coverages shall be maintained without interruption from the date of commencement of the Subcontractor’s Work until the later of final completion or final payment. Subcontractor further agrees that the failure of ICON to demand such certificate or insurance or failure of ICON to identify a deficiency therein will not be construed as a waiver of Subcontractor’s obligation to maintain the insurance required under this Subcontract. The insurance required under this Subcontract does not represent that coverage and limits will necessarily be adequate to protect Subcontractor nor shall such coverage and limits be deemed as a limitation of the Subcontractor’s responsibility to ICON.

14. BONDS. ICON reserves the right to require Subcontractor to provide a performance and/or payment bond, or other such security as may be reasonably required by ICON, at anytime during the term of this Agreement for any portion of the Work as required by ICON. If the performance and/or payment bond is not required by the Purchase Order, and ICON subsequently requires the Subcontractor to purchase such, the actual cost of such bond or security shall be paid by ICON through a duly authorized change order. Subcontractor pledges to, in a commercially reasonable manner, cooperate and, in good faith, use its best efforts to procure the security in a form satisfactory to ICON.

15. REQUIREMENTS IN ABSENCE OF BONDS. If ICON does not initially require Subcontractor to furnish bonds, but prior to or after commencement of Subcontractor’s Work, Subcontractor’s financial condition materially changes, in addition to any other rights of ICON hereunder, ICON may elect one or more of the following alternatives: (a) require Subcontractor to submit a current audited financial statement to ICON; (b). require Subcontractor to furnish an irrevocable letter of credit or other security to ICON; or (c). increase retainage to an amount sufficient to protect ICON’s interests. If Subcontractor fails to furnish a bond to ICON in acceptable form as required herein, or if Subcontractor fails to comply with (a) or (b) or consent to the provisions of (c) above, ICON may, upon five (5) days written notice terminate Subcontractor’s right to perform the Work under the Agreement in accordance with the provisions of Section 24.

16. DISPUTES. Any and all contractual disputes or concerns related to this Scope of Work MUST be reported to ICON in writing immediately; Subcontractor shall not discuss such disputes or concerns with the Owner, Architect, Construction Manager, or other subcontractors or any other entity. Any site alterations or unplanned occurrences involving electrical, mechanical, structural, design, or schedule changes, etc. must be promptly reported to ICON in writing. The Work shall be performed per the project specifications, project drawings, manufacturer’s installation manuals, and the scope of work. Subcontractor is responsible for notifying ICON or any discrepancy between the written scope of work and any applicable specification, drawing, or manual.

17. TIME IS OF THE ESSENCE. Time is of the essence. Subcontractor agrees to perform its obligations so that the Work may be completed in accordance with the Project Schedule. If the Prime Contract provides for liquidated or other damages for delay beyond the Final Completion date set forth in this Subcontract, and such damages are assessed, ICON may assess a share of the damages against Subcontractor in proportion to Subcontractor’s share of responsibility for the delay. However, the amount of such assessment shall not exceed the amount assessed against ICON. Nothing in this Subcontract shall be constructed to limit Subcontractor’s liability to ICON for ICON’s actual delay damages caused by Subcontractor’s delay.

18. INDEMNIFICATION. To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the Owner, ICON, and ICON’s consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorney’s fees, arising out of or resulting from performance of the Subcontractor’s Work under this Subcontract, provided than any such claim, damage, loss or expense is attributable to bodily injury, sickness disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the negligent acts or omissions of the Subcontractor, the Subcontractor’s sub-subcontractor’s, suppliers, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this section.

Subcontractor shall defend, indemnify and hold ICON and Owner harmless from and against: (1) any and all claims, liability, loss, damage, costs or expenses, including reasonable attorney’s fees, awards and judgments, arising by reason of any claims, liens, stop notices or bond claims for work, labor, services, material or equipment used or furnished to be used on the Work, or union trust fund payments, arising from or relating to Subcontractor’s work on the Work, and (2) all incidental or consequential damages resulting to ICON or Owner from such claims, liens, stop notices or bond claims. Within ten (10) days after written demand by ICON, Subcontractor shall cause the effect of any suit, stop notice or lien to be removed from the Work. If Subcontractor fails to do so, ICON may use whatever means it deems appropriate to cause the suit, stop notice or lien to be removed or dismissed. Any and all resulting cost and expense, including ICON’s reasonable attorneys’ fees, shall be immediately due and payable to ICON by Subcontractor. Subcontractor may litigate any such suit, stop notice or lien provided he first causes its effect to be removed from the Work and does such other things as may be necessary to cause Owner not to withhold any monies due to ICON by reason of such suits, stop notice or lien.

In claims against any person or entity indemnified under this section by an employee of the Subcontractor, the Subcontractor’s sub-subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation shall not be limited by a limitation on the amount or type of damages, compensation or benefits payable by or for the Subcontractor or the Subcontractor’s sub-subcontractors under workers’ compensation acts, disability benefit acts or other employee benefit acts.

Except as otherwise expressly provided for herein, it is agreed that neither party shall be liable to the other for special, indirect, incidental, or consequential damages unless caused by intentional misconduct.

19. TITLE. Trade contractor warrants that title to all Work, material and equipment stored on-site will pass to ICON either by incorporation in the Project or upon the receipt of payment by ICON for such Work, material, and equipment, whichever occurs first, free and clear of all liens, claims, security interests or encumbrances.

20. ASSIGNMENT. Neither party shall assign this contract or the right to payment due hereunder without the prior written consent of the other party, except, ICON shall have the right to assign this Subcontract to the Owner, with the Owner’s agreement, subject to the provisions of the Prime Contract and to the prior rights of the surety, if any, obligated under bonds relating to the Prime Contracts. In the event this Subcontract is assigned to the Owner, the Owner shall assume ICON’s rights and obligations under this Subcontract.

21. WARRANTIES; CORRECTION OF WORK. The Subcontractor warrants to the Owner and ICON that materials and equipment furnished under this Subcontract will be of good quality and new unless otherwise required or permitted by this Subcontract, and agrees to repair, replace or make good any damages, defects, or faults resulting from defective work that may appear within one (1) year after acceptance of work or for such additional period as may be required by the Prime Contract. The Subcontractor’s warranty excludes remedy for damage or defect caused by abuse, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage. This warranty is in addition to and not in limitation of any other warranty or remedy required by law or by this Subcontract.

22. REJECTED WORK. If Owner or ICON rejects or orders to be removed and replaced any of Subcontractor’s Work which Owner or ICON determines does not comply with the requirements of this Subcontract or the Contract Documents, Subcontractor within forty-eight (48) hours after receipt of such notice, shall proceed to take down the rejected work, remove the rejected materials from the Construction Site, repair (or pay the cost of repairing) damage to the work of others caused thereby, and replace the same with work and materials complying with the requirements of the Contract Documents. If Subcontractor does not commence such replacement work promptly or does not diligently complete such removal and replacement, ICON by written notice may take over the completion of such removal and replacement, and in such event Subcontractor shall be responsible for such payment, including reasonable overhead, profit and attorney’s fees. In the event of an emergency affecting safety of persons or property, ICON may proceed as above without notice, but ICON shall give Subcontractor notice promptly after the fact as a precondition of cost recovery.

23. TERMINATION. If the Subcontractor persistently or repeatedly fails or neglects to carry out the Work in accordance with this Subcontract or otherwise materially breaches the provisions of this Subcontract and fails within three (3) days after receipt of written notice to commence and diligently pursue correction or if the Subcontractor enters bankruptcy, voluntarily or involuntarily, or if Subcontractor makes a general assignment for the benefit of his creditors, or if a receiver is appointed on account of its insolvency, ICON may, and without prejudice to any other remedy ICON may have, terminate the Subcontract and finish the Subcontractor’s Work by whatever method ICON may deem expedient. If the unpaid balance of the Subcontract price exceeds the expense of finishing the Work and other damages incurred by ICON and not expressly waived, such excess shall be paid to the Subcontractor. If such expenses and damages exceed such unpaid balance, the Subcontractor shall pay the difference to ICON.

Should Owner terminate the Prime Contract, or any part of the Prime Contract, which includes the Subcontract Work, ICON shall notify Subcontractor in writing within five (5) days of termination and, upon written notification, this Subcontract shall be terminated and Subcontractor shall immediately stop Subcontract Work, follow all of ICON’s instructions, and mitigate all costs. In the event of Owner termination, ICON liability to Subcontractor shall be limited to the extent of ICON recovery on Subcontractor’s behalf under the Prime Contract.

ICON may, without cause, order the Subcontractor in writing to suspend, delay or interrupt the Work of this Subcontract in whole or in part for such period of time as the ICON may determine. In the event of suspension ordered by ICON, the Subcontractor shall be entitled to, as its sole remedy, an equitable adjustment of the time for performance.

24. WORK CONTINUATION AND PAYMENT. Unless otherwise agreed in writing, Subcontractor shall continue Subcontract Work and maintain the Progress Schedule during any dispute resolution proceedings. If Subcontractor continues to perform, ICON shall continue to make undisputed payments in accordance with this Subcontract.

25. PERMITS; LICENSES; COMPLIANCE WITH LAWS. Subcontractor shall secure, pay for and keep in effect all licenses, permits and inspection certificates necessary for the proper execution and completion of Subcontractor Work and shall deliver all certificates of inspection and other certificates and permits to ICON. Subcontractor shall comply with all laws, ordinances, codes, rules and regulations of governmental entities (including OSHA, National Electrical Codes, building codes, fire officials, etc.) having jurisdiction, including but not limited to those relating to safety, health, discrimination in employment, fair employment practices or equal employment opportunity, and with the requirements of the Fire Underwriters with respect thereto. The Subcontractor shall comply with Federal, state, and local tax laws, social security acts, unemployment compensation acts, and workers’ compensation acts insofar as applicable to the performance of this Subcontract.

26. PREVAILING WAGES. If the Project is subject to a legal requirement to pay “prevailing wages” or similar restrictions applicable to laborers or mechanics employed on the project, or if the Contract Documents or a Project Agreement entered into with respect to the Project contains requirements pertaining to the wages of laborers or mechanics employed on the project, Subcontractor shall pay the prevailing wages and comply with any and all such restrictions, requirements or agreements with respect to the laborers and mechanics employed by it for the performance of the Subcontractor’s Work and shall require all of its subcontractors to pay prevailing wages and comply with any and all such restrictions, requirements or agreements with respect to their laborers and mechanics employed for the performance of their work. ICON maintains the right to withhold Subcontractor’s payment in the event that prevailing wage reports, as required by the Law, are not received.

27. CONFIDENTIALITY. Purchaser shall consider all information, including the terms and conditions of this Agreement, furnished by ICON to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose other than fulfillment of this Agreement unless Purchaser obtains written permission from ICON to do so. This confidentiality requirement shall apply but is not limited to drawings, specifications, or other documents prepared by ICON for Purchaser this Agreement. Purchaser shall provide confidential information only to those of its agents, servants and employees who have been informed of the requirements of this paragraph and have agreed to be bound by them. The provisions of this paragraph shall survive termination of the Agreement.

28. SAFETY. Subcontractor shall comply with Owner’s and ICON’s written Safety Manuals, if any, a copy of which may be obtained or reviewed upon request to ICON. Subcontractor shall carry on its Work in a safe manner, and shall comply with all applicable federal, state and local laws, regulations, standards, and recognized trade practices for the protection and safety of its employees and other persons about its Work, including without limitation those governing labor, safety, health, sanitation, and protection of the environment. ICON requires a copy of each Subcontractor’s written safety program, which must meet all applicable local, State, and Federal safety, health and environmental requirements. Project and site specific Material Safety Data Sheets (MSDS) in legible copy are required prior to commencement of the Work. If hazardous substances or a type or which an employer is required by law to notify its employees are being used on the site by the Subcontractor, the Subcontractor’s subcontractors, or anyone directly or indirectly employed by them, the Subcontractor shall, prior to harmful exposure of any persons on site to such substance, give written notice of the chemical composition thereof to ICON in sufficient detail and time to permit compliance with such laws by ICON, other subcontractors and other employers on the site.

Subcontractor is solely responsible for protection and safety of its employees, for final selection of safety methods and means, and for establishing, supervising, inspecting and enforcing its safety obligations in accordance with this Agreement and applicable law. Subcontractor further agrees, in the event of a claimed violation of any federal or state safety or health law, rule, or regulation arising out or in any way connected with the performance of this Subcontractor’s Work, ICON may immediately take whatever action is deemed necessary by ICON to remedy the claimed violation. Any and all costs or expenses paid or incurred by ICON in taking such action shall be borne by Subcontractor, and Subcontractor agrees to defend, indemnify and hold harmless ICON against any all such costs and expenses.

29. INDEPENDENT CONTRACTOR. Subcontractor represents, acknowledges and agrees that it is an independent contractor and is not an employee of ICON. No provision of this Subcontract shall be deemed to create an employment relationship between Subcontractor and ICON. Subcontractor expressly warrants and agrees that it will not hold itself out as, or otherwise represent to any person or entity that it is, an employee of ICON. Subcontractor agrees to hold ICON harmless and to indemnify and defend ICON in full for any and all damages, claims, assessments, penalties, liabilities, charges, attorney’s fees or other losses incurred during or following the term of this Subcontract, which result from any assertion, claim, determination or adjudication that Subcontractor is an employee of ICON, including, but not limited to, any claim, determination or adjudication made pursuant to the Internal Revenue Code, or any other federal, state or local wage, employment, insurance, labor, worker’s compensation, and other laws, statutes, regulations and ordinances. Subcontractor further agrees to provide ICON with copies of any documents deemed necessary by ICON to demonstrate that Subcontractor is not an employee of ICON, including, but not limited to, certificates or other documentation indicating that Subcontractor maintains its own workers' compensation insurance.

32. FINAL AGREEMENT. The Subcontract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral.

33. GOVERNING LAW/VENUE. This agreement shall be governed by the internal laws of the state of North Dakota without regard to conflict of law principles. Any action, suit, or proceeding brought by either party in connection with this agreement shall be subject to the exclusive jurisdiction of state and federal courts within the State of North Dakota. Each party expressly submits and consents in advance to such exclusive jurisdiction and waives any objections based on venue.

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