Visitor - Delivery Vendor Indemnification and General Release Agreement
This Indemnification and General Release Agreement (the “Agreement”) is made and entered into as of the date set forth below by and between DeCrescente Distributing Company, Inc. (“DeCrescente”) and the delivery vendor accepting these terms who has been invited and is lawfully present on the property of DeCrescente for the purpose of delivering goods to DeCrescente (“Visitor”). DeCrescente and Visitor may be referred to herein individually as a “Party” or collectively as the “Parties.”
A. DeCrescente, as defined to include its affiliates, is the owner of various properties on North Main Street in Mechanicville, NY, including without limitation, 211 North Main Street and 200 North Main Street (the “Properties”).
B. Visitor, as defined to include all of its employers, owners, officers, employees, representatives, contractors, agents and affiliates, is a vendor that will voluntarily enter and be present on the Properties for a defined period of time to make a delivery of goods to DeCrescente or for other legitimate business purposes and has been given permission by DeCrescente to enter and be present on the Properties.
C. The Parties mutually desire to enter into this Agreement and have agreed on terms and upon the covenants, conditions and provisions herein set forth.
In consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, DeCrescente and Visitor hereby agree as follows:
Article 1. Permission and Use. Upon execution of this Agreement by the Parties, DeCrescente hereby grants permission for Visitor to enter and be present on the Properties in accordance with the terms of this Agreement. Visitor acknowledges and agrees that DeCrescente, in its discretion, has granted Visitor permission to be present on the Properties, and that DeCrescente may deny or revoke such permission at any time and for any reason, including, without limitation, any violation by Visitor of the terms and conditions set forth herein or any other rules or policies of DeCrescente.
Article 2. Assumption of Risk. Visitor acknowledges and understands that it assumes the risk of any service or other activity being performed on the Properties.
Article 3. Rules Compliance. Visitor acknowledges and agrees to follow all DeCrescente rules and policies while present on the Properties.
Article 4. No Guests. Visitor acknowledges and agrees that the rights granted to Visitor herein to enter and be present on the Properties are specific to Visitor only, are non-transferable, and do not extend to any other person or entity not affiliated with Visitor without the advanced written approval of DeCrescente.
Article 5. Damage to the Properties. Visitor shall ensure that the Properties remain in good repair, order and condition, and agrees to fully reimburse DeCrescente, upon DeCrescente’s demand, for any and all costs incurred by DeCrescente to repair any damage directly or indirectly caused by Visitor to the Properties. Furthermore, Visitor shall not borrow, dislodge, relocate or otherwise remove anything from the Properties. Visitor shall immediately notify DeCrescente of any damage to the Properties caused either directly or indirectly by Visitor.
Article 6. Removal of Materials. Visitor shall be solely responsible to collect and remove any of Visitor’s materials, garbage, or debris (including anything left by a pet of Visitor) from the Properties. Visitor expressly agrees to DeCrescente’s assessment of a two hundred fifty-dollar ($250) cleaning fee for any failure by Visitor to remove any materials, garbage, or debris from the Properties.
Article 7. Release and Indemnity. In consideration for DeCrescente’s agreement to permit Visitor to enter, work and be present on the Properties, Visitor hereby agrees to the following:
A. IN EXCHANGE FOR THE BENEFITS PROVIDED UNDER THIS AGREEMENT, VISITOR HEREBY KNOWINGLY AND VOLUNTARILY FULLY RELEASES AND FOREVER DISCHARGES DECRESCENTE AND ITS PAST, PRESENT AND FUTURE EMPLOYEES, OWNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, PRINCIPALS, AGENTS, ATTORNEYS, REPRESENTATIVES, ASSIGNS, SUBSIDIARIES, AFFILIATES AND DIVISIONS (COLLECTIVELY THE “DECRESCENTE RELEASEES”) FROM ALL AND ALL MANNER OF PAST, PRESENT OR FUTURE CLAIMS, DEMANDS AND ACTIONS IN LAW OR IN EQUITY, IN TORT OR IN CONTRACT, OR UNDER ANY OTHER THEORY OF RECOVERY, OF WHATEVER KIND OR NATURE, WHETHER KNOWN OR UNKNOWN, WHETHER NOW EXISTING OR HEREINAFTER ARISING (COLLECTIVELY THE “CLAIMS”), WHICH VISITOR EVER HAD, NOW HAS OR MAY HAVE HEREAFTER AGAINST DECRESCENTE OR THE DECRESCENTE RELEASEES, ARISING OUT OF OR RELATING IN ANY MANNER TO VISITOR’S ENTRANCE AND PRESENCE ON THE PROPERTIES, REGARDLESS OF THE CAUSE, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE ON THE PART OF DECRESCENTE OR THE DECRESCENTE RELEASEES.
B. IN FURTHER CONSIDERATION FOR DECRESCENTE’S AGREEMENT TO PERMIT VISITOR TO ENTER AND BE PRESENT ON THE PROPERTIES, VISITOR HEREBY INDEMNIFIES, DEFENDS AND HOLDS HARMLESS DECRESCENTE AND THE DECRESCENTE RELEASEES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, ASSESSMENTS, DAMAGES, LIABILITIES OR EXPENSES (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES THROUGH ALL PHASES OF LITIGATION), OF ANY NATURE WHATSOEVER ARISING OUT OF OR RELATED TO VISITOR’S ENTRANCE AND PRESENCE ON THE PROPERTIES.
Article 8. Insurance. DeCrescente values the relationship we have with our preferred vendors. However, due to recent changes imposed by our insurance carriers, we have found it necessary to implement the insurance requirements for use with all vendors and Visitors who will be working on DeCrescente property for any length of time. As such, prior to beginning any work on DeCrescente’s property, upon request by DeCrescente, Visitor agrees to provide a Certificate of Insurance (COI) demonstrating coverages.
Article 9. Severability. If any term or provision of this Agreement or its application to any person or circumstance shall to any extent be held invalid or unenforceable, the remainder of this Agreement or its application to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each such remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
Article 10. Waiver. No waiver by DeCrescente of any of the provisions hereof will be effective unless it is in writing, identified as such waiver, and signed by an authorized representative of DeCrescente. No waiver by DeCrescente shall operate or be construed as a waiver in respect of any subsequent failure, breach, or default, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof on any other occasion, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Article 11. Governing Law. This Agreement is entered into and shall be governed by and interpreted in accordance with, the laws of the State of New York, without reference to conflicts or choice of law. Visitor agrees to venue in the courts located in Saratoga County, New York.
Article 12. Acknowledgment. Visitor certifies that it has read and understands the contents of this Agreement. By signing this Agreement, Visitor hereby states that he/she fully understands each and every term contained herein and that it has had sufficient time to review and understand the Agreement prior to signing it.
Article 13. Notice. Any statements, communications or notices in connection with this Agreement shall be sent to the attention of Russell Teplitzky, General Manager, DeCrescente Distributing Company, 211 North Main Street, Mechanicville, NY 12118; (518) 664.9866.
Article 14. Entire Agreement. This Agreement, including its Recitals and Schedules, which are incorporated by reference and made a part hereof, contains the entire agreement between the parties regarding this subject matter and may not be modified unless mutually agreed to and set forth in writing.
Article 15. Execution and Authority. Visitor has caused this Agreement to be executed by its proper and duly authorized officer or representative, and by checking the box and designating acceptance below the Visitor hereby acknowledges and agrees to all the terms set forth in this Agreement.