PROCUREMENT TERMS AND CONDITIONS

Unless a separate written agreement containing relevant terms and conditions exist between Buyer and Vendor, these terms and conditions (these “Terms and Conditions”) are incorporated by reference in any Purchase Order (together with these Terms and Conditions, the “Agreement”) between Buyer and Vendor applies.

NOTICE: Any sale of Products (defined herein) and/or Services identified herein is expressly conditioned on Vendor’s assent to these Terms and Conditions. Any additional or different terms proposed by Vendor are expressly objected to and will not be binding upon Buyer unless specifically assented to in writing by Buyer’s authorized representative. Any statement of intent to perform hereunder, or Vendor’s performance of work or provision of Products shall constitute assent to the Agreement. The effective date of the Agreement shall be the date of the corresponding Purchase Order (the “Effective Date”).

Capitalized terms have the meanings given to such terms in these Terms and Conditions, or if such terms are not defined in these Terms and Conditions, in other documents which comprise the Agreement.

1. HARMONY AND PRIORITY OF DOCUMENTS; TERM: The Agreement is comprised of multiple documents that are listed below in 1 (c), (d), and (e) and as modified by 1-(a) and (b). All documents that comprise the Agreement are intended to be construed as a single unified and harmonious instrument. In the event of internal discrepancy or inconsistency between or among defined terms or other provisions of the Agreement, the statement of such term or provision which appears in the highest priority portion of the Agreement, as set forth below, shall prevail. The order of priority of the various documents or portions thereof which comprise the Agreement is as follows, in descending order of priority:

(a) those portions of the Agreement contained in any amendments or supplements subsequently executed by Buyer and Vendor which expressly state that they amend or supplement the Agreement or any portion thereof;

(b) any handwritten or typewritten interlineations or modifications of the Agreement or any portion thereof, provided that the same are made in conjunction with initial execution of the Agreement and are separately signed or initialed by both parties;

(c) those portions of the Agreement which appear in the body of the Purchase Order rather than in the attachments, schedules, exhibits, appendices, and these Terms and Conditions;

(d) the attachments, schedules, exhibits and appendices of the Agreement, as modified from time to time if applicable, including in all instances, Exhibits A and B; and

(e) the Agreement, plus any supplements appended to the Agreement contemporaneously with the signing of the Agreement, shall take precedence over and supersede any Vendor provided document.

In the event of inconsistency between two documents of equal priority, the later in time of the two documents shall prevail.

This Agreement shall remain in full force and effect through the latter of (a) 12 months from the Effective Date and (b) completion of the requirements of the Purchase Order by Vendor; subject to those obligations which expressly survive termination as expressly set forth herein, including but not limited to Section 3 (Patents), Section 4 (Warranty), Section 5 (Indemnification), Section 8 (Limitation of Liability), Section 12 (Ethics & Sustainable Development Clause), Section 15 (Insurance), Section 27 (Confidentiality; Personal Information; Non-Solicitation), Section 28 (Successors and Survival and Section 34 (Governing Law and Jurisdiction).

2. SHIPPING: Vendor shall be responsible for all costs of shipping. Buyer’s count will be accepted as final on shipments not accompanied by Vendor’s itemized packing slips.

3. PATENTS: Vendor warrants that the equipment or products being provided by Vendor pursuant to the Agreement with Buyer (the “Products”) that may be provided under the Agreement (other than Products designed or manufactured to Buyer’s specifications) do not infringe any intellectual property right. Vendor shall, at its sole expense, indemnify and hold harmless Buyer from and against, and shall defend any suit or proceeding brought against Buyer based on, related to or in connection with any equipment, or any part thereof supplied under this Agreement constitutes infringement of any patent, copyright, trademark, or proprietary information rights or others, and Vendor shall pay all damages and costs awarded therein against Buyer. Vendor shall be notified promptly in writing of the suit or proceeding and shall be given adequate authority, information and assistance (at Vendor’s expense) for the defense of same, subject to the right of Buyer to participate at its expense and to be fully advised by Vendor in advance of all actions taken by Vendor. If said Products, or any part thereof, are held to be infringing and the sale or use of the infringing Product is enjoined, Vendor shall, at its own expense and at Buyer’s option (i) procure for Buyer the right to sell and use the Product or part or replace same with substantially equal but non-infringing equipment, (ii) modify it so it becomes substantially equal but non-infringing or (iii) remove said equipment and refund the purchase price and the transportation and installation costs thereof. Despite the exercise of one or more of the foregoing options, Vendor shall remain liable to Buyer for all damages incurred by Buyer relative to any infringement situation. Notwithstanding the foregoing, Buyer reserves the right, at its option, to procure non-infringing Products or equipment. Vendor shall be liable with all damages associated therewith, including but not limited to cover damages.

4. WARRANTY AND GUARANTY:
(a) Vendor warrants good title to all Products to be provided under this Agreement. Vendor warrants that the Products are new, safe and free from defects in workmanship and materials and conform to any specification, drawings, samples, or other descriptions referenced herein or applicable thereto. Vendor warrants that except as contemplated by Section 19 (taxes), all taxes relating to the manufacture, sale or transfer of the Products have been timely and fully paid.

(b) Vendor warrants that all field labor (“Services”) shall be free from material defects, deficiencies, errors and omissions.

(c) Services, Products or components thereof, including software, found to be defective or nonconforming within the later of one (1) year from initial operation, provided that initial operation shall have occurred within one (1) year after date of delivery, or one (1) year after completion of the Services; shall, at Buyer’s option, be corrected or repaired in place by Vendor, or be replaced at Buyer’s facilities by Vendor, or be returned to Vendor at Vendor’s expense (including transportation and handling costs) for repair, replacement or full refund. The date of initial operation shall mean the date upon which Buyer first uses the Products for the production of materials to be sold by Buyer.

(d) Any Services reperformed shall be warranted by Vendor for the later of twelve (12) months from the date of reperformance or eighteen (18) months after delivery.

5. INDEMNIFICATION:
(a) Vendor hereby agrees to indemnify, hold harmless, investigate and defend Buyer and its affiliated companies, their directors, officers, members, managers, employees, agents, assigns and customers (collectively, the “Buyer Indemnified Parties”) from and against any and all actions, causes of action, claims, demands, liabilities, losses, damages or expenses of whatever kind or nature, including all attorneys’ fees (collectively, “Claims”), which any of the Buyer Indemnified Parties suffers or is liable for or may at any time suffer or sustain or become liable for and in any manner, arising from, relating to or in connection with, directly or indirectly.

i. Vendor’s actual or alleged violation of Governmental Requirements, including actual or alleged failure to pay taxes or other governmental fees or charges;
ii. the Products or the design, manufacture, sale or distribution thereof; and
iii. the Services and Vendor’s performance thereof;
iv. a breach or alleged breach of the Agreement by Vendor or its agents.

The acts and omissions of subcontractors, if any, and of the officers, employees, agents and representatives of Vendor and subcontractors, in the performance of the Agreement shall be deemed to be acts and omissions of Vendor. The intention of this Section 5 is that Vendor shall indemnify and hold Buyer harmless from the Claims described in this paragraph to the fullest extent not precluded by law.

(b) Vendor shall not be responsible for, or required to indemnify Buyer against, any Claims to the extent such Claims arise out of the gross negligence of Buyer.

(c) Vendor hereby waives against Buyer any right or claim for loss or damage which would arise in favor of Vendor in the event of loss or damage which would be compensable under insurance required to be carried by Vendor hereunder, should Vendor fail to have insurance in force with respect to such loss or damage, regardless of the cause of such loss or damage.

(d) Vendor hereby releases and waives all rights of subrogation against Buyer possessed by Vendor’s insurers with respect to the assumption and discharge of the obligations of Vendor under this Section 5, and Vendor hereby represent to Buyer that it is authorized to make such release and waiver under Vendor’s policies of insurance.

(e) For the avoidance of doubt, all indemnification obligations set forth in this Agreement will apply to both direct and third-party claims.

6. DELAYS: Vendor shall be excused for delays in delivery or in performance where such delay is due to acts of God, acts of civil or military authority, fires, floods, epidemics, war, riot, or other similar causes beyond Vendor’s control, which Vendor could not have reasonably foreseen and provided against. In the event of any such delay, the date of delivery or of performance may be extended for a period equal to the duration of the delay, but Vendor shall not be entitled to any extra compensation for such delay. Vendor shall promptly notify Buyer of any such delay, and, at no additional cost to Buyer, shall take all reasonable steps to avoid or end such delay. Buyer’s lack of response to Vendor’s Notices regarding the delay shall not operate to terminate Vendor’s obligation to complete the delayed performance. Strikes and unavailability of goods shall not be considered excuses for delay.

7. CONTRACT OBLIGATIONS PERSONAL: Vendor shall not sublet, assign, transfer or delegate any responsibilities hereunder without prior review and written consent of Buyer.

8. LIMITATION OF LIABILITY: Except in connection with Vendor’s breach of its obligations set forth in Section 27 (Confidentiality; Non-solicitation), neither party hereto shall be liable to the other for any special or consequential damages of any kind or character, however arising, including without limitation, loss of anticipated profits, loss of use of the Products or Services or any associated equipment or loss of Product.

9. MODIFICATIONS: Buyer shall have the right by written supplement to make changes in the specifications and drawings for the Products or other equipment, materials, and items covered by this Agreement. If such change would affect the price or delivery for such Product, Service, equipment, materials, or items Buyer and Vendor shall reasonably agree in writing upon an equitable adjustment in the price and/or delivery date to reflect the effect of such change. Vendor shall not suspend performance of this Agreement while Buyer and Vendor are in the process of making such changes and any related adjustments and if released in writing by Buyer, Vendor shall comply with and perform such change in accordance with the terms of this Agreement during such time. No substitutions shall be made in this Agreement without the prior written consent of Buyer. Extra compensation will be paid Vendor only if agreed to in advance in writing by Buyer, and no agreement or understanding modifying the conditions or terms of this Agreement shall be binding upon either party hereto unless made in writing and approved by the parties hereto.

10. CANCELLATION: Time is of the essence for Vendor’s performance under this Agreement, including in connection with the delivery of the Products and performance of the Services. In addition to all its other legal rights and remedies, Buyer reserves the right to cancel all or any part of the undelivered Products or Services immediately upon written Notice to Vendor if Vendor does not make deliveries or meet its other obligations hereunder, or if Vendor breaches any of the terms of this Agreement.

11. CANCELLATION BY BUYER FOR CONVENIENCE: Buyer shall have the right to terminate this Agreement or any part of this Agreement for any reason or no reason at any time immediately upon written Notice to Vendor. Buyer shall only be required to pay for the actual cost of work and materials satisfactorily delivered or completed as of the effective date of such cancellation. Vendor shall be limited to a ten percent (10%) mark-up for profit on the actual incurred cost for Services that have commenced but have not been completed at the time of cancellation.

12. ETHICS & SUSTAINABLE DEVELOPMENT.

(a) Vendor acknowledges that it has read and shall adhere to Buyer’s ethical and sustainable development commitments as stipulated in Buyer’s reference documentation, including this Section 12., Buyer’s privacy policies, the embargo requirements set forth in Exhibit A, and in its Vigilance Plan (for the latter as long as Vendor maintains an established commercial relationship in accordance with the applicable law). Those commitments are available on the website www.engie.com.

(b) Vendor represents and warrants to Buyer that it shall comply with (and has complied with, for six years prior to the signing of this Agreement), standards of international law and national law applicable to the Agreement (including any changes during the term of this Agreement), relating to:

i. Fundamental human rights, in particular the prohibition (a) to use child labor or any other form of forced or compulsory labor; (b) on all forms of discrimination within its company and towards its suppliers and subcontractors;
ii. Embargoes, arms and drug trafficking and terrorism;
iii. Trade, import and export licenses and customs;
iv. The health and safety of employees and third parties;
v. Employment, immigration and the ban on illegal labor;
vi. Environmental protection, which includes but is not limited to greenhouse gas emissions, energy consumption, pollution prevention and waste management but also resource efficiency, biodiversity, no deforestation, or land conservation;
vii. Economic offences, including bribery, fraud, influence peddling (or the equivalent offence under the national law applicable to this Agreement), embezzlement, theft, abuse of corporate assets, infringement, forgery and the use of fraudulent documents, and any related offences;
viii. Anti-money laundering; and
ix. Competition law.

(c) Vendor shall comply with, and shall ensure compliance by its own suppliers and subcontractors as well as by any third party involved in such work or services, with the requirements set out in paragraph (b) above.

(d) When Buyer requests so, Vendor should evaluate its performance in terms of the environment, ethics, human rights and sustainable purchasing at its expense. This evaluation will be run by a third party appointed by Buyer. In the absence of an assessment before the contract signature date, Vendor shall make sure that he gets its assessment done within 6 months from that date. The lack of assessment performed by the designated third party within this period will be considered by Buyer as a breach of contract, entitling Buyer to suspend and/or terminate the Agreement, as referred into the paragraph (g).

(e) With regard to its own activities, Vendor undertakes to actively cooperate and act in such a way as to enable Buyer to comply with its legal duty of vigilance obligations. As such, it shall work, in particular, to implement the measures provided for in the Vigilance Plan as mentioned above (risk mapping, alert and reporting mechanism, etc.) and shall immediately alert Buyer of any serious breach or of any element which may constitute a serious breach, in accordance with the above standards, as part of its relationship with Buyer.

(f) Buyer has the right to request proof from Vendor, at any time, that it has complied with the requirements of this clause and to carry out audits or have audits carried out at any time, subject to giving advance notice and at its own expense. In the event of an audit, Vendor undertakes to give access rights to its premises and sites to Buyer’s employees, and to provide any information and/or documentation that Buyer may request to allow it to properly carry out the audit.

(g) Any breach by Vendor of the provisions of this Ethics and Sustainable Development Clause constitutes a contractual breach entitling Buyer to suspend and/or terminate the Agreement in accordance with the terms and conditions set out in this Agreement.

13. COMPLIANCE. Vendor shall comply strictly with all applicable laws, ordinances, rules, and regulations of all federal, state, local, and municipal authorities at any time in effect governing the performance of the Agreement, including but not limited to those concerning health, safety, taxation, wages and hours, labor relations, equal opportunity, non-discrimination, immigration, importation and exportation, trade regulation, and environmental protection. In addition, Vendor shall comply strictly with all of the Buyer’s site security and safety procedures and protocols. Vendor shall comply and shall cause its employees, agents and subcontractors to comply, with the embargo regulations of Buyer set forth in Exhibit A attached hereto, as such may be amended unilaterally by Buyer to reflect any changes in policy or applicable law or regulation.

14. INDEPENDENT CONTRACTORS: Vendor shall remain as an independent contractor. Vendor is not an agent of Buyer for any purpose, and shall have no power, nor shall Vendor represent that Vendor has any power, to bind Buyer or to assume or to create any obligation, expressed or implied, on behalf of Buyer. Vendor shall disclose to subcontractors, vendors, and other third parties that Vendor is not an agent of Buyer.

15. INSURANCE: Neither Vendor nor any of its subcontractors shall commence under this Agreement until Vendor has obtained and paid for all insurance required by this section and until the policies of insurance have been approved by the Buyer as to the kind, coverage and amount.

(a) Worker’s Compensation & Employer’s Liability: Vendor shall provide workers’ compensation and employers liability insurance for all employees engaged to perform work which is the subject of this Agreement in accordance with all applicable laws and in the following minimum amounts evidenced below. No party or its directors, officers, employees, agents, affiliates or representatives, or independent contractors engaged by it in the performance of the Services or the obligations under the Agreement, shall be deemed an employee, agent, affiliate or otherwise of the other party. Neither party shall bring any claim against the other party or its directors, officers, affiliates, agents, representatives, employees or independent contractors with respect to any liability for compensation under an applicable state or federal workers’ compensation act, including, but not limited to, workers’ compensation and/or employer’s liability claims of employees. Where Buyer may be responsible for directing or controlling the work of Vendor’s employees or agents, if applicable and available, the alternate employer endorsement shall be added to Vendor’s workers’ compensation policy in Buyer’s favor prior to the performance of the Services.

Coverage A: As Required by Statute
Coverage B: Employers Liability Limits Bodily Injury by Accident $1 Million Each Accident
Bodily Injury by Disease $1 Million Each Employee
Bodily Injury by Disease $1 Million Policy Limit

(b) Commercial General Liability: Without in any way limiting or restricting the indemnity provisions of this Agreement, Vendor shall carry a commercial general liability policy with minimum limits evidenced below:

General Aggregate $2 Million
Products Completed Operations Aggregate $2 Million
Personal & Advertising Injury Limit $1 Million
Fire Damage Limit Any One Fire $300,000.
Medical Expense Limit Any One Person $5, 000.
Insurance as set forth in Section 15(e) below.

The following minimum coverages must be included in the policy form described in this section:
– Premises/Operations
– Products/Completed Operations
– Broad Form Contractual Coverage

(c) Automobile Liability: Vendor shall also carry business automobile liability insurance for all owned, hired and non-owned vehicles with a minimum combined single limit $1,000,000 per occurrence for bodily injury and property damage.

(d) Umbrella/Excess Liability: Vendor shall also carry umbrella/excess liability insurance with a limit of $5,000,000 per occurrence and annual aggregate, with a self-insured retention not exceeding $25,000; extending limits in excess of primary employers’ liability, general liability and automobile liability coverages required above. In the event that any primary underlying aggregate has been eroded or exhausted due to the payment of claims, it shall be a provision of this policy to “drop down” and provide liability coverage excess of any reduced underlying limits of insurance or, provide first dollar coverage in the event of exhaustion of underlying limits. Total liability limits may be achieved through any combination of primary and umbrella excess coverage.

(e) Additional Insurance.

(1) Professional Liability. If applicable to the Work being performed, Vendor shall also maintain professional liability insurance coverage insuring against professional errors and omissions arising from the Products by any party providing construction management, architectural, engineering, and/or surveying services, and/or any party whose Work involves the preparation of plans or drawings, with coverage limits not less than five million dollars ($5,000,000) per claim and ten million dollars ($10,000,000) annual aggregate. Such policy shall not contain any exclusions directed toward any types of projects, materials, services, or processes involved in the Work. The retroactive date for coverage will be no later than the commencement date of design and will state that in the event of cancellation or non-renewal the discovery period for insurance claims will be at least five (5) years or otherwise as by agreement with Vendor. Coverage shall include, but not be limited to:

– Vendor’s interest in joint ventures, if applicable;
– Construction Management must be listed as a professional service covered by the policy without being subject to limitation by a specific definition;
– Technology services must be listed as a covered service with respect to BIM hosting and management responsibilities (for Work utilizing BIM); and
– Limited contractual liability.

(2) Aircraft Liability Insurance. If Vendor uses aircraft, including helicopters and drones, in connection with the Work, then Vendor shall carry aircraft liability insurance with a combined single limit of liability for bodily injury (including passengers) and property damage in a minimum amount not less than $10,000,000 per occurrence. Such insurance shall provide coverage for all owned and non-owned aircraft, including helicopters and drones, used by Vendor in connection with the performance of the work set forth in this Agreement and shall not have a provision limiting coverage to a “per seat” or “per passenger” basis.

(3) Information Security Insurance. Vendor agrees to purchase and maintain throughout the term of this Agreement technology/professional liability insurance and data protection liability insurance covering liabilities for financial loss resulting or arising from acts, errors, or omissions, in rendering services under this Agreement as well as all Vendor costs, including damages it is obligated to pay Buyer or any third party, which are associated with any Security Breach (as hereafter defined) or loss of personal data, (A) arising directly from a hacking attack or virus that has emanated from or passed through Vendor’s computer systems or cloud computing provider’s systems, (B) directly from Buyer’s inability to access Vendor’s computer systems in the way in which Vendor has authorized Buyer to as a direct result of Buyer’s computer systems’ failure or impairment, or a cloud computing provider’s systems failure or impairment, due to a hacking attack or virus; or (C) directly from the loss or theft of Vendor data, or data for which Buyer is responsible or held to be responsible, or Vendor data held by a cloud computing provider, arising directly from a hacking attack or virus; arising out of media content, user generated content or Vendor’s business activities, regardless of cause (including Vendor negligence and unlawful third-party acts). Costs to be covered by this insurance policy shall include: (1) costs to notify individuals whose personal data was lost or compromised; (2) costs associated with third party claims arising from the Security Breach or loss of personal data, including litigation costs and settlement costs; and (3) any investigation, enforcement or similar miscellaneous costs. Such insurance shall provide coverage for up to $1,000,000.00 (one million dollars) per occurrence.

(4) For the purposes of this Section, “Security Breach” means (X) the failure by the Vendor to properly handle, manage, store, destroy or otherwise control, or the unauthorized disclosure by the Vendor of: (i) personal data in any format or (ii) third party corporate identifying information in any format specifically identified as confidential and protected under a confidentiality agreement or similar agreement; (Y) an unintentional violation of the Vendor’s or Buyer’s privacy policy or misappropriation that results in the violation of any applicable data privacy laws or regulations; or (Z) any other act, error, or omission by Vendor in its capacity as such which is reasonably likely to result in the unauthorized disclosure of personal data or third party corporate identifying information. This policy must be kept in force during the term of the Agreement and for three (3) years (either as a policy in force or extended reporting period) after termination of the Agreement.

(5) Pollution Legal Liability Insurance: If the Work being performed involves abatement, removal, replacement, repair, enclosure, encapsulation, and/or disposal of any hazardous material or substance, then pollution legal liability insurance shall be maintained by Vendor. Coverage shall be provided on an occurrence basis with limits of five million dollars ($5,000,000) and shall include coverage for liability to third parties for bodily injury, property damage, remediation, and clean-up costs arising from pollution events or conditions on, at, under, or migrating from the Work site and from transportation and disposal of pollutants and/or anything contaminated by pollution. This insurance must be maintained for at least ten (10) years after substantial completion and acceptance of the Work.

(f) The following must be shown as Additional Insureds on all policies, except workers’ compensation coverage:

ENGIE North America Inc., and its relevant affiliates party to an Agreement with Vendor
The Additional Insureds shall be entitled to coverage under Vendor’s insurance policies (except for workers’ compensation) for liabilities arising out of or relating to the Products and Services. Additional insured coverage is extended to the Additional Insureds as required by the Agreement. No endorsements attempting to limit coverage given to the Additional Insureds shall be accepted except as otherwise required by law or regulation.

Buyer shall be provided waiver of subrogation coverage and Vendor’s policies should be amended to respond on a primary/non-contributory basis. Buyer requires a certificate of insurance on the appropriate accord certificate form evidencing the coverages required by Vendor herein and listing exclusion and endorsement numbers. Vendor shall maintain during the entire performance of this contractual Agreement, at least the kinds and minimum amounts of insurance scheduled above. All insurance must be placed with carriers reasonably satisfactory to Owner and holding a minimum financial rating of A-VIII with A.M. Best and coverage must be occurrence based (not claims made). Prior disclosure of any and all self-insured or fronting plans is required. Any and all deductibles contained in the above described policies shall be assumed by, for the account of, and at the sole risk of consultant. The policies evidencing this required insurance shall contain an endorsement to the effect that any cancellation, termination or material change adversely affecting Buyer’s interest shall not be effective until after Buyer has received 60 days advance written Notice from Vendor or Vendor’s insurer(s). It is expressly intended that these insurance requirements are in addition to and separate from any other obligations contained in the Agreement.

(g) Vendor’s insurance shall either provide coverage for its subcontractors and consultants or subcontractors and consultants must provide evidence of coverage to the Buyer in at least the minimum insurance requirements stated above. Vendor is required to insert the substance of these insurance and indemnity requirements as “flow down” provisions in any and all subcontracts with subcontractors, including the requirements to provide the coverage herein to the Additional Insureds.

(h) Renewal of expiring policies shall be confirmed by renewal certificates forwarded to the Buyer at least seven (7) days prior to coverage expiration. Any failure on the part of Buyer to pursue or obtain the evidence of insurance required above and/or failure of Buyer to point out any non-compliance of such evidence of insurance shall not constitute a waiver of any insurance requirements.

(i) Should any insurance coverage required to be held by Vendor under this Agreement be cancelled, and Vendor fails to obtain substitute coverage, the Buyer may obtain such insurance and deduct the premiums for insurance from any amounts due Vendor. If all payments have been made to Vendor, then Vendor agrees to reimburse the Buyer for the costs of the premiums.

(j) Vendor shall report to the Buyer and to the insurance carriers, any and all incidents relating to the work undertaken by Vendor pursuant to the terms of this Agreement which may give rise to a claim under any insurance policy maintained by Vendor pursuant to this section. Such Notice shall be given promptly after Vendor obtains knowledge thereof.

(k) To the extent applicable, Vendor shall maintain or provide for insurance covering full replacement value of the Products for damage during shipment while in transit and storage as well as damage to the Products during rigging, loading and unloading until the Products have been inspected, demonstrated it meets all performance tests and accepted by the Buyer. Vendor shall have the sole care, custody and control and risk of loss of the Products and be solely liable for any damage until title and risk of loss passes to Buyer in accordance with this Agreement. Vendor shall be responsible for any and all deductibles and/or self-insured retention amounts incurred by Vendor or Buyer and shall coordinate and facilitate settlement of all such claims.

16. LIENS: In the event that performance of any Services or the furnishing of Products under the Agreement could serve as the basis for attachment or imposition of a lien or encumbrance on the real or personal property of Buyer, to the fullest extent permitted by law Vendor waives and releases the rights to assert and enforce any such lien, shall obtain from all subcontractors and suppliers similar waivers and releases, and shall defend, indemnify and hold the Buyer Indemnified Parties harmless from all such liens or Claims of liens arising under the Agreement.

17. LICENSES AND PERMITS: Vendor shall, without expense to Buyer, obtain, maintain in force, and exhibit to Buyer upon request any and all permits or licenses necessary or useful for performing the Agreement, including without limitation those licenses and permits which are required to be issued in the name of Buyer, but excluding those which are required solely for performance of duties which are required to be performed by Buyer under the Agreement. Buyer shall cooperate with Vendor in obtaining licenses and permits required to be obtained by Vendor. If any such licenses and permits are issued specifically with respect to a designated Buyer facility or specifically with respect to performance of the Agreement, they shall be surrendered to Buyer upon termination or expiration of the Agreement, whether or not such licenses and permits are transferable or were issued in the name of Buyer.

18. SAFETY AND HEALTH REGULATIONS: Vendor and its employees shall at all times comply with all statutory and governmental safety and health regulations, and with the safety, health and plant regulations of Buyer, and shall ensure that all of its employees and agents have a safe place to work on the premises of Buyer. Vendor shall keep said premises and the vicinity thereof clean of debris and rubbish caused by its work and, shall upon completion of its work, shall leave the premises clean and ready for use. Upon request of Buyer, and at no cost or expense to Buyer, Vendor shall promptly remove from the premises of Buyer any person under the control of Vendor who violates any of its aforesaid safety, health, or plant regulations, or who may cause or threaten to cause a breach of the peace, or who is otherwise objectionable to Buyer.

Buyer shall furnish to Vendor copies of such buyer requirements as apply with respect to the Agreement.

Vendor shall be responsible for taking all necessary steps, in accordance with applicable law, to dispose of, store, transport, manage and otherwise render harmless any contaminants, pollutants or toxic or hazardous materials, wastes or substances, or any other such substance regulated by applicable laws (in any case, “Hazardous Material”) that Vendor or any of its subcontractors brings or has brought onto, or disturbs at, the premises. Not limiting the generality of the foregoing, prior to completion of any work on the premises, Vendor shall, in accordance with applicable laws and at its own expense, remove from the premises and dispose of in accordance with applicable laws any Hazardous Material that Vendor or its subcontractors brought or had brought onto, or disturbed at the premises. Vendor hereby agrees to indemnify, defend and hold Buyer, its present and future direct or indirect parents, subsidiaries, affiliates, divisions, and their respective directors, officers, employees, shareholders, agents, representatives, successors and assigns harmless from and against any and all losses, liabilities, claims, demands, damages, causes of action, fines, penalties, costs and expenses (including, but not limited to, all reasonable consulting, Vendor, attorneys’ or other professional fees), that they may incur or suffer by reason of any Hazardous Material that Vendor or its subcontractors brings or has brought onto the premises, or disturbs at the premises provided that Vendor has been informed by the Buyer of the presence of the Hazardous Material at the premises prior to the work order being issued or is otherwise aware of the presence of the Hazardous Material at the premises . Subject to the foregoing, if Vendor encounters any Hazardous Material at the premises that Buyer did not disclose prior to the commencement of the work, Vendor shall take all reasonable steps to ensure that no person suffers any injury, sickness or death and that no property is injured or destroyed as a result of exposure to or the presence of such Hazardous Material and immediately report the circumstances to the Buyer and to any other person as required by applicable laws.

19. TAXES: Vendor is solely liable for payment of any and all taxes, withholdings, insurance and other obligations of any sort (including but not limited to income taxes, FICA and FUTA taxes, and workers’ compensation insurance), whether set forth herein or required by applicable law or regulation or Buyer’s practice or policy. Vendor shall separately state on all invoices, set aside, and timely pay over to any applicable taxing authority, all sales, use, excise, gross receipts, value added, business, occupation, and other transaction-based taxes that may be levied upon either party in connection with the Work by any applicable governmental authority (collectively “Transaction Taxes”). Vendor shall indemnify, investigate, defend and hold the Buyer Indemnified Parties harmless from and against, any Transaction Taxes, together with any interest and penalties thereon and related Claims. For the avoidance of doubt, Transaction Taxes shall not include franchise taxes, payroll taxes, transfer taxes, property taxes or taxes on the income of any person, in each case, imposed by any governmental authority.

20. INVOICES AND PAYMENT: Invoicing by Vendor and payment by or on behalf of Buyer shall be in accordance with the provisions set forth in the Agreement, including any applicable law. Any payments made shall be subject to the requirements of any applicable law and shall not be construed to be an acceptance of deficient Services or relieve Vendor of any of its obligations. Vendor shall be notified promptly by Buyer of any disputes Buyer may have regarding an invoice hereunder.

Subject to compliance with any applicable law, delay in receiving Vendor’s invoices in number of copies specified: invoice and packing lists not agreeing in all respects or errors or omissions on either, will be considered just cause for withholding payment without loss of cash discount privilege. Invoices submitted by the Vendor will be required to be accompanied by the applicable work order, duly approved by an authorized representative of the Buyer. The final invoice against this order shall be marked “Order Complete”. For the avoidance of doubt, no payment will be made until the Vendor has provided all documents required by the Agreement.

Where Vendor submits an invoice that does not contain all requirements provided in this Agreement and applicable law, Vendor shall promptly re-submit an invoice that meets all such requirements and Buyer shall have no obligation to make any payment before such re-submission. Subject to any holdback required to be taken pursuant to applicable law, Buyer shall make payment to Vendor within forty-five (45) days of Buyer’s receipt of an invoice properly submitted in accordance with the Agreement or as otherwise required pursuant to the applicable law.

Any undisputed payment that remains outstanding forty-five (45) days after the date Buyer received Vendor’s invoice shall bear interest at the prime rate as quoted by The Wall Street Journal, plus one percent (1%) per annum, until paid, but not to exceed the maximum contract rate permitted by the applicable usury laws. In the event interest accrues on any delinquent payment, Vendor shall reflect such amount in each subsequent billing invoice. All references to “Dollars” or “$” within this Agreement shall be deemed to refer to United States Dollars.

Subject to compliance with any applicable law, Buyer may require Vendor to execute a lien release and certification of full payment satisfactory in form and content to Buyer as a condition to making final payments to Vendor.

21. INSPECTION AND ACCEPTANCE: In the event that Products are furnished by Vendor under the Agreement, such Products shall be accepted subject to Buyer’s rights of inspection, rejection, and revocation of acceptance pursuant to the provisions of Article 2 of the Uniform Commercial Code. Without limitation of any of Buyer’s rights provided by law or otherwise under the Agreement, Vendor shall, upon request of Buyer and at Vendor’s expense, promptly replace at the point of delivery all Products reasonably rejected by Buyer. Payment for or use of Products shall not constitute acceptance thereof and may be made without prejudice to any and all claims that Buyer may have against Vendor with respect to such Products.

22. NOTICES: Consents, demands, approvals, notices, information, or other communications required under the Agreement (“Notices“) shall be in writing and all such Notices and communications shall be deemed to have been duly given (i) at the time delivered by hand, if personally delivered, (ii) on the day of transmission, if delivered by facsimile, and (iii) on the day following the day of deposit with the postal service, if sent by registered or certified mail. Either party may at any time and from time to time change the address and official to which Notices addressed to such party are to be sent by giving Notice of such change in the manner herein provided.

23. RESPONSIBILITY FOR EMPLOYEES: Vendor represents that it is an independent contractor of an employing unit subject as an employer to all applicable unemployment compensation, occupational safety and health, or similar statutes. Without limiting any other indemnification provision of the Agreement, Vendor shall indemnify and hold Buyer harmless and reimburse Buyer for any expense or liability incurred in connection with employees, subcontractors, and vendors of Vendor, including without limitation any claims relating to worker’s compensation and claims relating to keeping records, making reports, and withholding and paying any payroll taxes or contributions.

Vendor shall be responsible for its own labor relations and shall negotiate and be responsible for adjusting all disputes between Vendor and Vendor’s employees. Vendor shall promptly notify Buyer of any threatened or actual employee unrest, labor disturbances, slow downs, strikes or other labor actions that may adversely affect Vendor’s performance of the Agreement.

24. EMPLOYEE DISCIPLINE; DRUG FREE WORKPLACE: Vendor shall require employees working at Buyer facilities to comply with all applicable instructions, regulations, and codes of conduct as specified from time to time by Buyer for Buyer employees.

25. EMERGENCIES: Vendor shall immediately notify Buyer personnel in the event of any fire and of all other emergency conditions observed by Vendor at any Buyer facility. Vendor shall give Buyer Prompt Notice of any injury or damage observed by Vendor at any Buyer facility and shall immediately furnish Buyer a copy of all Notices received by Vendor with respect to any Claim for bodily injury anywhere on any Buyer facility. Without limitation of the foregoing, Vendor shall give prompt Notice of any injury sustained by any of its employees or agents in the performance of the Agreement.

26. VENDOR HEALTH AND SAFETY REQUIREMENTS

(a) Purpose. The purpose of these health and safety requirements (these “Safety Rules”) is to ensure that Vendor’s H&S Standards (as defined below) are equal to or exceed Buyer’s H&S Requirements (as defined below). These Safety Rules apply to all Services to be conducted onsite for Buyer located within the United States and Canada. Buyer’s H&S Requirements are minimum standards, and in the event of a conflict between any term or condition of these Safety Rules and the Agreement or applicable law or regulation, the higher standard with respect to Vendor’s H&S Standards shall control.

(b) Definitions. When used in these Safety Rules, the following capitalized terms have the following meanings:

“HIPO Incident” means any jobsite incident resulting in a workplace accident, illness, injury, fatality, major equipment or property damage or a Near Miss, as further defined below.

“H&S Professional” means an individual with formal training (i.e., an associate’s or bachelor’s degree from an accredited college or university and/or a health & safety certification from a recognized professional association as determined in Buyer’s discretion) and at least five (5) years’ experience in the development and implementation of safety policies, programs, processes and procedures in a commercial and/or industrial construction environment. The individual shall demonstrate competency in occupational H&S, specifically including hazard assessment, mitigation planning, completing pre-job safety plans for the work being performed, executing H&S audits and assessments, incident/injury investigations, root cause analysis, and reporting. The safety professional shall not have any other duties other than those required to ensure the prompt and competent completion of daily safety related duties. Vendor shall submit the qualifications for the H&S Professional for Buyer’s review and approval.

“H&S Representative” means a competent person as defined by the Occupational Safety and Health Administration (“OSHA”) as set forth in CFR 1926 or the equivalent Canadian and/or provincial occupational health and safety legislation. The individual must be capable of identifying existing and predictable hazards in the surroundings or working conditions, which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them including stopping work. The H&S Representative must possess valid training in safety-related processes and procedures associated with his or her trade, maintain a regular presence on-site (the details of which shall be agreed upon by the Parties), and hold a 10-hour OSHA certification (or the equivalent Occupational Health and Safety (“OHS”) certification for USA and/or the State in which the Services is being performed).

“H&S Requirements” means all Buyer health and safety policies, programs, processes and procedures (including but not limited to the Stop Work Authority and Incident Investigation and Reporting Procedures), those set forth in these Safety Rules, the Agreement and any customer flow down conditions, that direct the expected performance level at the jobsite. In the event of any conflict between the elements of the H&S Requirements, the higher standard shall apply.

“H&S Standards” means all Vendor health and safety policies, programs, processes and procedures.

“Incident Investigation and Reporting Procedure” means all reported incidents are investigated, root causes determined, and corrective actions implemented to prevent further occurrences.

“Near Miss” means an unplanned or unexpected event, condition or accident that did not result in an injury, illness or damage to equipment or property but had the potential to do so.

“Short-Service Worker” means individuals that are new to construction trades in the commercial or industrial sector (i.e., less than six (6) months’ documented experience), temporary workers and workers referred by a third-party agency, hiring hall or trade union.

“Stakeholder” means Short-Service Workers, contractors, subcontractors, Buyer employees, craftsmen, front line supervisors, project managers, construction managers, Joint Health and Safety Committee members (and/or other designated workplace safety representative), H&S Professionals and H&S Representatives.

“Stop Work Authority Procedure” means when a safety or health concern arises on a job, everyone on the jobsite has the right to call a work stoppage on his/her assigned task, on another employee’s activity or on contractor activities.

(c) Vendor’s H&S Standards performance levels must meet the following criteria:

1. Experience Modification Rate < 1;
2. an OSHA Total Recordable Injury Rate for past three years < 100% of the Bureau of Labor Statistics (“BLS”) North America Industrial Classification Code (“NAICS”) average; and
3. Days Away, Restricted or Transferred rate for past last three years < 100% of the BLS NAICS average. Vendors that fail to meet these criteria shall be required to, in conjunction with Buyer, develop and implement a mitigation plan to ensure safe completion of the work.

(d) All craftsmen must have an OSHA 10-hour certification (or the equivalent OHS certification for Canada) and all front-line supervisors must have an OSHA 30-hour certification (or the equivalent OHS certification for Canada). Exceptions to these criteria may be permitted based on direct feedback and observation of contractor performance if confirmed by Buyer in writing and unless local regulations specify more stringent requirements.

(e) H&S roles, responsibilities and requirements must be outlined for each applicable Stakeholder. Vendor must appoint an appropriate number of dedicated H&S Professionals (who shall have a regular presence on-site, the details of which including the number of such professionals shall be agreed upon by the Parties) when Vendor’s onsite workforce (including subcontractors) exceeds 50 for the relevant project. In addition, Vendor shall appoint an H&S Representative when the total workforce for the relevant project exceeds 15 persons.

(f) Buyer and Vendor must jointly conduct regularly planned and unplanned equipment inspections, leadership engagement observations and checks to assess H&S procedural and contractual compliance to include adherence to the Life-Saving Rules listed below, which in no event shall be conducted less than once per month. Results of inspections, observations and checks must be documented, with any deficiencies corrected and communicated to all applicable Stakeholders.

(g) In addition to complying with all applicable laws, statutes and regulations and all rules, codes, orders or standards issued by governmental agencies pertaining to safety and health, Vendor must comply with Buyer’s nine Life-Saving Rules (“Life-Saving Rules”):

1. Do not walk or stand under a load.
2. Stay out of the moving path of vehicles and equipment.
3. Always wear a clip-on harness and any other legally required fall-arrest or personal protective equipment when working at heights.
4. Only enter a trench if the appropriate wall supports are in place.
5. The atmosphere must be tested safe before entering a confined space and monitored during work.
6. Do not perform hot work unless fire or explosion risks have been eliminated and a hot work permit has been obtained.
7. Verify no live energy (mechanical, chemical, electrical, fluids under pressure, etc.) before starting work.
8. Do not conduct communications through a phone or any other communications device when driving.
9. Do not perform work while under the influence of alcohol or drugs.

(h) The maximum number of Short-Service Workers shall be agreed upon by the Parties and such workers shall be readily identifiable at the site (e.g., designated badge, hard hat, etc.). At all times, Short-Service Workers must be supervised by a front-line supervisor who possesses the safety training required by these Safety Rules. Additional levels of subcontracting require prior written approval from Buyer. Vendor will hold subcontractors and Short-Service Workers to the same standards imposed on Vendor by Buyer.

(i) Vendors shall not have more than one level of subcontractors unless explicitly approved in writing by Buyer.

(j) Vendor shall submit their site-specific health and safety plan to include a Job Hazard Analysis (JHA) with mitigation measures in advance of site mobilization unless waived by Buyer. Vendor shall not perform tasks identified in the JHA as high-risk (e.g., potential for fatality, multiple serious injuries, significant property damage, or interruption of client processes) without first planning additional mitigation measures for Buyer review and approval. No review by Company shall limit, relieve or waive Vendor’s primary responsibility for safety on-site.

(k) Vendor shall conduct daily Job Safety Plans (“JSP”) in two phases and in a manner that meets or exceeds Buyer’s H&S Requirements. In all cases, Vendor workface supervisors (i.e., general foremen, foremen, sub-foremen) shall document, review with the workers and approve/endorse by signature the JSPs detailing the work tasks scheduled for that day with associated hazards and planned mitigation measures (phase one). The workers shall take the JSP to where the task is being performed at the time of execution and conduct an on-station-last-minute risk assessment (phase two). The JSP documents will be retained until the Services are complete and contractually closed.

(l) Vendor must inform Buyer of any jobsite incident in the manner and within the time periods defined in Buyer’s Incident Investigation and Reporting Procedure. Unless a stricter standard applies or is required by law, Vendor must immediately, but by no later than close of business on the same day in which the incident occurred, notify Buyer of any HIPO Incident. A root cause analysis must be conducted in accordance with the risk assessment thresholds and within the time periods established in Buyer’s Incident Investigation and Reporting Procedure. Identified root causes and countermeasures shall be shared with all affected Stakeholders. In the event of serious and imminent danger to personnel on site, every Stakeholder has authorization to stop work in accordance with Buyer’s Stop Work Authority Procedure. Buyer must be informed immediately when stop work authority is exercised.

(m) All H&S Requirements shall be strictly adhered to by all Stakeholders. Vendor must communicate and explain the H&S Requirements set forth herein, including the Life-Saving Rules, to all applicable Stakeholders prior to commencement of the work. Proof of this communication must be submitted to Buyer in writing upon request. A breach of one of the H&S Requirements by any personnel under Vendor’s authority may lead to a declaration of default, exclusion of such personnel from the site or the Services, or an exercise of any other remedy available to Buyer under the Agreement.

(n) In addition, Vendor must provide monthly work hours and the maximum number of workers for Agreements which exceed $100,000.00. Data shall be submitted no later than 5 business days from the end of the month.

(o) Vendor shall indemnify and hold Buyer harmless for all costs and liabilities resulting from Vendor’s or its subcontractors’ or other personnel’s failure to meet the requirements of these Safety Rules, and any applicable laws and regulations, including but not limited to the costs related to (i) restoring the health and safety conditions required by Buyer, (ii) stopping and recommencing the Services, demobilizing and remobilizing staff, and (iii) hiring alternative providers if Vendor is removed from preforming the Services, and (iv) any increase in premiums, special levies and/or fines imposed by workplace insurance programs and applicable government inspection and compliance agencies. In the event of multiple defaults by Vendor, Buyer may determine that Vendors qualification be temporarily suspended, thus resulting in Vendor’s exclusion from calls for bids.

(p) Buyer reserves the right to audit Vendor’s implementation of and adherence to Buyer’s H&S Requirements. Upon request, Vendor shall promptly, but no later than two (2) business days, provide Buyer with written documentation evidencing the implementation of, and adherence to, Buyer’s H&S Requirements. All remedies described herein shall be in addition to any other rights and remedies available to Buyer at law or equity.

27. CONFIDENTIALITY; PERSONAL INFORMATION; NON-SOLICITATION:
(a) If applicable, Vendor shall at all times exercise due care not to obtain or disclose business or technical information regarded by Buyer as sensitive or confidential. Vendor shall not make any unauthorized use of writings, data, designs, drawings, specifications, or any information furnished to it by Buyer or observed or developed by Vendor in the performance of the Agreement, and shall not disclose any of the foregoing to third parties, except as may be required in the performance of the Agreement and then only after first obtaining a written agreement from such third parties to be bound by similar confidentiality and use restrictions. Upon completion, cancellation or termination of the Agreement, Vendor shall return to Buyer all of the foregoing, including all copies, extracts, or derivatives thereof, in any tangible form containing any of the foregoing obtained by Vendor or third parties hereunder. Buyer may require that all or certain of Vendor’s employees who have the opportunity to be exposed to business information regarded by Buyer as sensitive or confidential sign a standard form of “Confidentiality Agreement” adopted from time to time by Buyer for use by persons not employed by Buyer. Such Confidentiality Agreement may make the signing employee directly liable to Buyer for damages in the event of breach of security, or misappropriation or unauthorized disclosure of sensitive or confidential information but shall not relieve Vendor of any liability to Buyer arising out of such occurrence in the event of negligence or failure by Vendor to comply with Vendor’s obligations under the Agreement. In the absence of such, Vendor shall be liable to Buyer for all of its employees or agents breaches of this Section. No photographs or other records of any nature of any portion of any Buyer facility shall be made or (after termination or expiration) retained by Vendor or any subcontractor without Buyer’s prior written permission.

(b) Vendor shall at all times comply with all applicable laws, ordinances, rules, and regulations of all federal, provincial, local, and municipal authorities in effect and applicable to this Agreement concerning the protection of “Personal Information” as defined by the aforementioned applicable privacy and security laws and Exhibit B hereto and disclosed or otherwise provided by Buyer in relation to this Agreement.

Vendor shall use and process all Personal Information for the sole purpose to carry out Vendor’s obligations pursuant to the Agreement and shall limit access to Personal Information to its personnel on a need-to-know basis. Any unauthorized processing, use, disclosure to any subcontractor, vendor or other third party, and any transfer to a place outside the country where this Agreement is executed of Personal Information is strictly prohibited, unless authorized in writing by Buyer beforehand.

Vendor shall undertake all relevant technical and organizational measures throughout the execution of the Agreement as to safeguard the security, confidentiality and integrity of Personal Information collected from Buyer, in a manner consistent with the degree of sensitivity of Personal Information and compliant with the applicable privacy and security laws and industry standards.

Vendor shall notify Buyer within 24 (twenty-four) hours of learning of any request from a Data Subject in respect of his/her rights concerning his/her Personal Information, any breach of Personal Information protection and any request from supervisory authority and shall supply Buyer with any assistance it may require responding to such requests and incidents. Upon Buyer’s request, to confirm compliance with this Agreement as well as any applicable laws, Vendor shall promptly and accurately supply Buyer with information concerning the handling of Personal Information pursuant to this Agreement.

Vendor covenants and agrees that all Personal Information will be returned to Buyer upon termination of the Agreement, within 1 (one) month, including any copies or any excerpts thereof or in any way recreate the substance or contents of Personal Information. Buyer’s reserves the right to request for the destruction of all Personal Information upon termination of the Agreement. Upon Buyer’s request, Vendor shall promptly and accurately provide Buyer with a written confirmation that all Personal Information have been adequately returned or destroyed.

Any failure to meet the requirements of this Agreement with respect to the security and confidentiality of any Personal Information is a material breach of the Agreement for which Buyer at its option, may terminate this Agreement or applicable work request, service order or purchase order immediately on written notice to Vendor without any notice or cure period, and seek all available remedies at law and in equity relating to such breach. Vendor shall be liable for losses, liabilities, and damages resulting from Vendor’s breach of this Agreement and applicable regulations concerning Protection of Personal Information. A force majeure event does not relieve Vendor of its contractual obligations under this Personal Information Privacy section of the Agreement.

To the extent where it is applicable and added to this Agreement, Vendor shall comply with all additional requirements set forth in Exhibit B – Personal Information Privacy and Data Security requirements.

(c) Vendor acknowledges and agrees that in the course of performing the Services, it will be introduced to and work with officers, employees, agents and representatives of Buyer. Vendor acknowledges and agrees that officers, employees, agents and representatives of Buyer are valuable resources, in whom Buyer has invested considerable time, effort and resources. Therefore, Vendor agrees that for the duration of this Agreement and for two (2) years thereafter, Vendor shall not directly or indirectly solicit, interfere with, entice away, hire or employ (whether as an employee, agent, representative, Vendor, independent contractor or otherwise), regardless of who initiated contact, any officer, employee, agent or representative of Buyer or who has been an officer, employee, agent or representative of Buyer during the prior 12-month period. In the event of a breach or threatened breach of this Section, Vendor acknowledges that damages would be impossible to calculate and agree that Buyer shall be entitled to injunctive relief and liquidated damages describe below in a court of appropriate jurisdiction to remedy any breach or threatened breach of this Section to the extent permitted by applicable law.

(d) Vendor hereby covenants and agrees that, for the duration of this Agreement and for one (1) year thereafter, Vendor and its affiliates shall not, directly or indirectly, (a) enter into any transaction with an Buyer Customer (defined below) that is similar to, in competition with, or which otherwise could have the effect of preventing Buyer from entering into a similar transaction with such Buyer Customer, (ii) contact or solicit any Buyer Customer for the purpose of diverting, or attempting to divert, any business of such Buyer Customer to any Person other than Buyer, including without limitation Vendor or any of its affiliates, (iii) persuade or influence any Buyer Customer to cease any business relationship with Buyer or any of its Affiliates, or (iv) otherwise interfere or attempt to interfere with the contractual rights and interests of Buyer under any contract or agreement with any such Buyer Customer. An “Buyer Customer” means any client of Buyer or its Affiliates with whom Vendor works, is exposed to or otherwise learns about while providing the Services. Upon termination or expiration of this Agreement, Buyer will promptly send to Vendor a list of the Buyer Customers to whom these restrictions will continue to apply following such termination or expiration; provided that Buyer’s failure to provide such list will not interfere with or otherwise affect Buyer’s rights under this Section 27.

(e) Vendor acknowledges and agrees that Vendor’s breach of this Section would cause irreparable injury for which the Buyer may not have an adequate remedy at law. In the event of a breach of this Section, Buyer shall be entitled to the following remedies: injunctive relief, any other remedies it may have hereunder, at law or in equity, without posting of bond, in addition to all attorneys’ fees it incurs in connection with the pursuit of its legal relief and remedies hereunder, and liquidated damages (which, for the avoidance of doubt, is not a penalty but is a reasonable amount to compensate Buyer for its damages) by Vendor in an amount equal to the greater of (i) the actual amount paid to Vendor pursuant to this Agreement and all Purchase Orders since the effective date, and (ii) the aggregate anticipated compensation to be paid to Vendor under all outstanding Purchase Orders for a 12-month period. For the avoidance of doubt, all restrictive covenants set forth herein shall apply to the business of Buyer and all of the affiliated entities of Buyer for whom Vendor knowingly provides Services or receives confidential information.

28. SUCCESSORS AND SURVIVAL: Except as otherwise provided, the Agreement shall inure to and be binding upon the heirs, executors, administrators, successors, and assigns of the parties. Upon expiration or termination of the Agreement for any reason, all rights and remedies of Vendor and Buyer accruing through such time of expiration or termination shall survive until the duties and obligations of the parties to each other at the time of expiration or termination have been fully performed and satisfied.

29. REFORMATION AND SEVERABILITY: If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not adversely affected as to either party.

30. REMEDIES: Should Vendor be in material breach of the Agreement, Buyer shall be entitled to all rights and remedies available to Buyer at law or in equity and may, in addition to any other remedies that Buyer may have: (a) proceed against Vendor to recover Buyer’s damages on account of Vendor’s breach; (b) obtain an injunction or other equitable relief in those instances in which equitable relief is available; (c) subject to any limitations with respect to prior Notice and opportunity to cure elsewhere set forth in the Agreement, by Notice to Vendor terminate the Agreement and all of Vendor’s rights hereunder; (d) immediately and without Notice to Vendor take such self-help measures, at Vendor’s expense, as may be reasonable to remedy such breach if delay or failure to do so might irreparably harm or damage Buyer; provided, however, that Buyer shall be under no duty to take such self-help measures; (e) satisfy, in whole or in part, Vendor’s obligations to Buyer by offsetting against sums then due or thereafter becoming due from Buyer to Vendor under the Agreement or any other contract or agreement between Vendor and Buyer; and/or (f) exercise any other remedies provided by this Agreement, including election of liquidated damages. Such remedies shall be cumulative and may be exercised by Buyer separately and independently, successively, or concurrently with each other and with any other remedies of Buyer under the Agreement.

31. RECORDS, ACCOUNTING, AUDIT: For Services or Products provided from Vendor to Buyer on an actual cost basis, Vendor shall keep full and detailed records and accounts related to the actual and shall be open for inspection by a Buyer designated representative from time to time for a period of three (3) years after the payment, for the limited purposes of determining that Vendor has complied with U.S. generally accepted accounting principles. Under no circumstances shall Buyer be required to consider any claim submitted by Vendor on an actual cost basis, unless and until such records and accounts are made available to Buyer in their entirety for review and use in evaluation of the claim. Buyer may require Vendor to prove its compliance with the requirements set out in this Agreement at any time and may audit Vendor, directly or through a third party, at any time and at its own expense, provided that it gives prior notice of the audit to Vendor. In the event of an audit, Vendor undertakes to grant Buyer employees access to its premises and/or its sites and to provide Buyer with all information and/or documents that it may request for the successful completion of the audit.

32. WAIVERS: Any term, covenant, condition, representation, or warranty under the Agreement may be waived by the party entitled to the benefit thereof, and any default in performance by one party may be waived by the party entitled to receive such performance, but none of such provisions of the Agreement shall be considered waived by either party unless such waiver is reduced to writing and signed by the party entitled to such benefits. No such waiver shall be construed as a modification of any of the provisions of the Agreement, or as a waiver of any past or future default or breach hereof unless expressly so stated in such waiver.

33. CONSTRUCTION AND INTERPRETATION: The organization of the Agreement into articles, paragraphs, and clauses is intended to facilitate understanding of the parties’ rights and obligations but not to limit such rights and obligations. Divisions and captions are inserted only for convenience, are not parts of the Agreement and shall be disregarded in interpreting the Agreement. Words of any gender used in the Agreement shall be read to include any other gender, and words in the singular number shall be read to include the plural when the sense requires. Whenever the word “including”, or similar terminology is used to refer to a specific item, event, occurrence, or example in conjunction with a general provision, the specific reference shall serve only to illustrate and in no way to limit the meaning of the general provision. Neither party shall be deemed drafter of the Agreement or any portion thereof.

34. GOVERNING LAW AND JURISDICTION. The Agreement shall be determined and adjudicated under the laws of the State of Texas without regard to conflicts of laws principles that would require the application. The United Nations Convention on the International Sale of Goods is expressly excluded. Vendor hereby consents to the exclusive jurisdiction of the appropriate state court in Harris County, Texas or, if original jurisdiction can be established, in the federal court in the United States District Court for the Southern District of Texas, for any legal or equitable action or proceeding arising out of, or in connection with, the Agreement. Vendor specifically waives any and all objections to venue in such courts.

35. All Claims that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any representation or warranty made in or in connection with any such Agreement or as an inducement to enter into this Agreement), may be made only against the entities that are expressly identified as parties thereto. No person who is not a named party to this Agreement, including without limitation, Buyer, solely as a party to this Agreement, any director, officer, employee, incorporator, member, partner, stockholder, affiliate, agent, attorney or representative of any named party to this Agreement (“Non-Party Affiliates”), shall have any liability (whether in contract or in tort, in law or in equity, or based upon any theory that seeks to impose liability of an entity party against its owners or affiliates) for any obligations or liabilities arising under, in connection with or related to this Agreement or for any claim based on, in respect of, or by reason of this Agreement or its negotiation or execution; and the parties to this Agreement, waive and release all such liabilities, claims and obligations against any such Non-Party Affiliates. Non-Party Affiliates are expressly intended as third-party beneficiaries of this provision of this Agreement.

EXHIBIT A: EMBARGO CLAUSE

Definitions

“Agreement” shall have the meaning given such term in the terms and conditions to which this Exhibit A is attached.

“Embargo Laws” shall mean any applicable law or regulation regarding economic sanctions, trade embargos or other restrictive measures, including those laws or regulations adopted, implemented or enforced by the Government of the United States of America, the Government of the United Kingdom, the Council of the European Union and the United Nations.

Capitalized terms used but not defined herein shall have the meaning ascribed thereto in the Agreement.

Representations & Warranties

With regard to the Agreement performance, Vendor represents and warrants to Buyer that:

(i) it is aware of and is familiar with the Embargo Laws applicable to it and applicable to Buyer in connection with the performance of the Agreement; and

(ii) it complies with and shall continue to comply with laws, rules, regulations, executive order, decree, ordinance, measures, decisions, jurisprudence (howsoever designated) in force and applicable to it, including, without limitation, applicable Embargo Laws, in connection with the performance of the Agreement; and

(iii) it shall not cause Buyer to, either directly or indirectly, violate any Embargo Laws applicable to Buyer;

(iv) its employees, officers directors, agents, partners, suppliers, co-contractors, shareholders, beneficial owners, affiliates, principals or any natural or legal person or entity directly or indirectly under its control or acting on its behalf (howsoever designated), comply with and shall comply with laws, rules, regulations and policies applicable to them including, without limitation, applicable Embargo Laws, in connection with the performance of the Agreement; and

(v) it shall immediately inform Buyer in the event of any suspected breach of covenants, representations and warranties by itself, as soon as it is aware or should have been reasonably aware of such suspected breach.; and

(vi) it shall inform Buyer in the event of any suspected breach of covenants, representations and warranties by its employees, officers directors, agents, partners, suppliers, co-contractors, shareholders, beneficial owners, affiliates, principals or any natural or legal person or entity directly or indirectly under its control or acting on its behalf (howsoever designated), as soon as it is aware or should have been reasonably aware of such suspected breach.

Notwithstanding anything therein to the contrary, in the event Buyer reasonably believes that Vendor, its employees, officers directors, agents, partners, suppliers, co-contractors, shareholders, beneficial owners, affiliates, principals or any natural or legal person or entity directly or indirectly under its control or acting on its behalf (howsoever designated) have taken, are taking, are about to take or may take any action whichever and whatsoever in breach of or which may breach the laws, rules, regulations, decree, judgment, decision, order or injunction (howsoever designated) applicable to them, including, without limitation, applicable Embargo Laws, in connection with the performance of the Agreement, or any of the representations, warranties and covenants contained therein, Buyer may:

(i) Serve a written Notice to Vendor requesting pieces of evidence that Vendor complies and shall comply with the Embargo Laws; and

(ii) Withhold any future payments under the Agreement to Vendor until Buyer, at its sole and absolute discretion, receives satisfactory pieces of evidence from Vendor that Vendor complies and shall comply with laws, rules, regulations, decree, judgment, decision, order or injunction (howsoever designated) applicable to it, including, without limitation, applicable Embargo Laws, in respect of the performance of the Agreement; and/or

(iii) Suspend the Agreement performance until Buyer receives from Vendor reasonable pieces of evidence at the sole and exclusive discretion of Buyer that said Vendor complies and shall comply with the Embargo Laws.

(iv) Suspend the Agreement performance without any fee nor penalty until Buyer receives from Vendor reasonable pieces of evidence in the reasonable opinion of Buyer that said Vendor complies and shall comply with laws, rules, regulations, decree, judgment, decision, order or injunction (howsoever designated) applicable to it, including, without limitation, applicable Embargo Laws, in respect of the performance of the Agreement.

In the event Vendor fails to provide Buyer with the afore-cited reasonable pieces of evidence within 30 (thirty) days as of the date when the written Notice cited under (i) hereinabove is served by Buyer to Vendor, the Agreement shall terminate by simply serving a Notice by Buyer to Vendor. Buyer shall not be held liable directly or indirectly to Vendor as a result of such termination.

In the event Buyer gets evidence of a breach based on a decision of a regulatory body, a court of law or an arbitration court not subject to appeal by Vendor, its employees, officers directors, agents, partners, suppliers, co-contractors, shareholders, beneficial owners, affiliates, principals or any natural or legal person or entity directly or indirectly under its control or acting on its behalf (howsoever designated) of laws, rules, regulations, decree, judgment, decision, order or injunction (howsoever designated) applicable to them, including, without limitation, applicable Embargo Laws, in respect of the performance of the Agreement, it shall have the right to immediately terminate the Agreement by written Notice.

In the event of a breach of the foregoing provisions by Vendor, its employees, officers directors, agents, partners, suppliers, co-contractors, shareholders, beneficial owners, affiliates, principals or any natural or legal person or entity directly or indirectly under its control or acting on its behalf (howsoever designated), Vendor shall be liable to Buyer in contract, tort or otherwise, for any and all direct, indirect, consequential, latent damages of whichever kind and nature, including, without derogating from the generality of the foregoing, losses of profits, losses of use, losses of contracts suffered by Buyer, its employees, officers, directors, agents, partners, suppliers, co-contractors, shareholders, beneficial owners, affiliates, principals or any natural or legal person or entity directly or indirectly under its control or acting on its behalf (howsoever designated).

Notwithstanding any other provision of this Agreement to the contrary, Buyer shall not be obliged under the Agreement to take any action, or omit to take any action or conduct itself in a manner which, in the sole and exclusive opinion of Buyer, might conflict with or cause a breach of Embargo Laws or any other law, regulation, decree, judgment, decision, order or injunction (howsoever designated) applicable to Buyer, its employees, officers directors, agents, partners, suppliers, co-contractors, shareholders, beneficial owners, affiliates, principals or any natural or legal person or entity directly or indirectly under its control or acting on its behalf (howsoever designated), or any asset of Buyer. In the event of any change in applicable law or regulation, this Exhibit A and Agreement shall be deemed to include such law or regulation and if desired, Buyer shall be entitled to amend this Exhibit A to include such updated requirements; provided however that both parties expressly agree that such amendment shall not be required.

EXHIBIT B: PERSONAL INFORMATION PRIVACY AND DATA SECURITY REQUIREMENTS

This Exhibit, together with the Agreement, is the complete agreement between Vendor and Buyer and supersedes any prior oral or written agreement between the parties concerning the privacy and security of Personal Information. This Exhibit supersedes any conflicting provision of the Agreement to the extent such provision relates to the privacy or security of Personal Information.

1. Definitions

“Agreement” shall have the meaning given such term in the terms and conditions to which this Exhibit A is attached.

“Applicable Privacy and Security Laws” means all applicable laws, ordinances, rules, and regulations of all federal, provincial, local, and municipal authorities in effect and applicable to this Agreement that relate in any way to the privacy, confidentiality or security of Buyer Data and Personal Information.

“Buyer Data” means all information data, materials, works, expressions or other content, (i) disclosed or otherwise made available by Buyer in relation to this Agreement; (ii) collected, downloaded or otherwise received by Vendor pursuant to this Agreement; and (iii) include all output, copies, reproductions, modifications, and other derivative works of, based on, or otherwise using any Buyer Data.

“Personal Information” means all information that identifies, relates to, describes, or is capable, by itself or in combination with other data, of being associated with any particular individual, including, but not limited to, his or her name, signature, social security number, physical characteristics or description, biometrics information, address, telephone number, passport, driver’s license or state identification number, insurance policy number, medical information or health insurance information, education, employment, bank account and credit or debit card number, or any other financial information, or information regarding the individual’s electric energy usage or electric service, including, without limitation, service account number, electricity demand, monthly billed revenue, credit history, rate Exhibit(s), or number or type of meters at a premise.

“Systems” means any computer, IT network and storage, application, device, mobile, equipment, software and other materials and facilities, operated in connection with this Agreement.

“Process” means any operation performed upon Buyer Data and Personal Information such as accessing, obtaining, storing, transmitting, using, maintaining, disclosing or disposing of the information.

“Information Security Incident” means any (i) loss, theft, unauthorized use or process, disclosure, erasure, acquisition of, or access to Buyer Data and Personal Information; or (ii) unauthorized access to or use of, inability to access, or malicious infection of, Buyer Systems and Vendor Systems that reasonably may compromise the privacy or confidentiality of Buyer Data and Personal Information.

2. Compliance with Applicable laws

Both Parties shall comply with all Applicable Privacy and Security Laws, industry standards and requirements set forth in this Exhibit.

3. Authority to Process and Access to Buyer Data and Personal Information

Buyer retains full ownership of any and all Buyer Data and Personal Information supplied to Vendor, and Vendor will have no ownership rights or interest in Buyer Data and Personal Information.

Vendor shall Process Buyer Data and Personal Information only on behalf of and for the benefit of Buyer to carry Vendor’s obligations pursuant to this Agreement, and only under the instructions of Buyer. Vendor shall not Process for marketing purposes, sell, aggregate, analyze or anonymize Buyer Data and Personal Information unless required in connection with the Agreement or authorized in writing by Buyer beforehand.

4. Access and Disclosure of Buyer Data and Personal Information

Vendor shall hold confidential any and all Buyer Data and Personal Information and shall limit access to Buyer Data and Personal Information to its personnel on a need-to-know basis as a condition to Vendor’s performance under the Agreement. Any disclosure to, unauthorized processing and use by any subcontractor, vendor or other Third Party of Buyer Data and Personal Information, and any transfer to a place outside the country where this Agreement is executed of Buyer Data and Personal Information is strictly prohibited, unless required in connection with the Agreement and authorized in writing by Buyer beforehand. Vendor shall (i) take reasonable steps to verify that the Third Party is capable of maintaining the privacy, confidentiality and security of Buyer Data and Personal Information; and (ii) contractually require the Third Party to maintain adequate safeguard at least as restrictive as those set forth in the Agreement and this Exhibit. Such authorizations may be revoked by Buyer in writing at any time in its sole discretion.

5. Compliance with Privacy and Information Security Requirements

Vendor is responsible for the security of its Systems and any and all of Buyer Data and Personal Information.

Vendor shall undertake all relevant technical and organizational measures throughout the term of the Agreement, to safeguard the security, confidentiality and integrity of Buyer Data and Personal Information, and to protect all Buyer Data and Personal Information from unauthorized access, acquisition or disclosure, destruction, alteration, accidental loss, misuse or damage, in a manner consistent with the degree of sensitivity of Buyer Data and Personal Information, and in accordance with standards and best practices employed by Vendor’s industry peers, Buyer’s security policies, and the terms and conditions of this Exhibit.

Such safeguards include disaster avoidance procedures, backups and Business Continuity and Disaster Recovery Plan, in accordance with best industry standards, to prevent the occurrence of, and mitigate the consequences of, any unplanned interruption of any services pursuant to the Agreement.

Vendor shall ensure that all such safeguards, including the manner in which Buyer Data and Personal Information is collected accessed, used, stored, processed, disposed of and disclosed, comply with Applicable Privacy and Security Laws and Buyer’s privacy policies.

Additional and specific security measures can be set in relation to the obligations pursuant to the Agreement in a separate document that will reference to the Agreement and this Exhibit. During the term of the Agreement, Vendor shall implement and maintain any additional and specific privacy and security safeguards, as directed by Buyer, in the event of (i) a relevant material change in the types of Buyer Data and Personal Information that Vendor Processes; or (ii) an Information Security Incident.

6. Information Security Incident Response

Vendor shall notify in reasonable details Buyer within 24 (twenty-four) hours of any reasonably suspected or of learning of any data breach and any other type of Information Security Incident by contacting the following: engiena-itsecurity@engie.com. Vendor, in full cooperation with and under the instructions of Buyer, shall immediately conduct a reasonable investigation of the causes, circumstances and effects of an Information Security Incident, and shall take all necessary and advisable corrective actions to rectify, prevent, contain and mitigate and remediate the impact of an Information Security Incident. Vendor shall document all evidence regarding an Information Security Incident and the investigation and provide such documents to Buyer upon request.

Upon Buyer’s request, Vendor shall notice, with appropriate information and documents, the individuals and Third Parties whose Personal Information have been compromised, along with law enforcement agencies, when required by Applicable Privacy and Security Laws, in a manner and format determined by Buyer. Vendor agrees that Buyer retains the sole authority and discretion to contact and involve law enforcement agencies and to conduct the notifications in connection with an Information Security Incident. Vendor agrees to cooperate fully with Buyer and any involved law enforcement agencies in the event of any investigation being undertaken by such agencies.

Vendor will incur the costs involved with such notice and any required remedy, such as consumer credit monitoring or call center, and any other necessary remedies.

7. Compliance with Retention Instructions

Vendor shall Process Buyer Data and Personal Information in the care, custody or control of Vendor in accordance with any retention agreements or litigation hold orders provided to Vendor by Buyer.

Vendor covenants and agrees that all Buyer Data and Personal Information in Vendor’s possession, custody or control will be returned to Buyer upon the expiration or earlier termination of the Agreement, whichever is earlier, or at an earlier time as Buyer requests, or securely destroyed at Buyer’s request, within 1 (one) month and according to Buyer’s instructions, including any copies, backup data, or any excerpts thereof or in any way recreate the substance or contents of Buyer Data and Personal Information. Upon Buyer’s request, Vendor shall provide written certification by one of its senior officers that Buyer Data and Personal Information has been returned or securely destroyed in accordance with this Exhibit and Buyer’s instructions.

In the event Applicable law does not permit Vendor to comply with the delivery or destruction instructions of Buyer, Vendor security, confidentiality and integrity obligations as set forth in this Exhibit shall continue to be in full force and effect as long as Buyer Data and Personal Information have not been returned or securely destroyed, except as required by law.

8. Cooperation, Periodic Reporting and Assessments

Vendor shall take reasonable steps to collect and preserve any information related to its obligations under this Exhibit. Upon Buyer’s request, to confirm compliance with this Agreement as well as any Applicable Privacy and Security Laws, Vendor shall promptly and accurately supply Buyer with information concerning the handling of Buyer Data and Personal Information pursuant to this Agreement in a format requested by Buyer. Vendor shall fully cooperate with such inquiries. Upon the provision of reasonable notice to Vendor, Buyer or its designee may undertake a security assessment, pen test, network scan, forensic investigation and/or audit of Vendor Systems. Buyer shall ensure the security, confidentiality and integrity of the information provided by Vendor.

Vendor shall notify Buyer within 24 (twenty-four) hours of learning of any request from a Data Subject in respect of his/her rights concerning his/her Personal Information, and any request from law enforcement agencies, and shall supply Buyer with any assistance it may require to respond to such requests.

9. Force Majeure

A force majeure event does not relieve Vendor of its contractual obligations under this Exhibit B and shall not limit its liability as defined in this Exhibit B.

10. Non-exclusive Remedy for Breach of Obligations and Indemnifications

Any failure of the Services to meet the requirements of this Agreement with respect to the security of any Buyer Data, Systems and Personal Information, including any related backup, disaster recovery or other policies, practices or procedures, is a material breach of the Agreement for which Buyer at its option, may terminate this Agreement or applicable Work Request, service order or purchase order immediately on written notice to Vendor without cure period, and seek all available remedies at law and in equity relating to such breach.

Vendor shall be liable for losses, liabilities, and damages resulting from Vendor’s breach of this Agreement and Applicable Privacy and Security Laws and shall promptly reimburse to Buyer any Fees prepaid by Buyer prorated to the date of such termination.

Vendor shall defend, indemnify and hold harmless Buyer and its officers, directors, employees, agents, and successors from and against all losses, liabilities, damages and expenses of whatever kind, including government required inspections or audits, reasonable attorneys’ fees, arising out of or resulting from any third-party claim against Buyer arising out of or resulting from Vendor’s failure to comply with any of its obligations under this Exhibit.

Vendor shall secure and continuously carry with insurance carries licensed to conduct business in the State in which the Agreement are to be performed, the minimum level or insurance coverage identified in the Agreement and Cyber Liability insurance identified below:

Cyber Liability insurance with limits of $5,000,000 per occurrence and $5,000,000 aggregate covering Vendor against all sums that Vendor may become legally obligated to pay on account of any professional liability arising out of the performance of the Agreement. Coverage shall in the minimum include (i) liability arising from theft, dissemination, and/ or use of Confidential Information (a defined term including, but not limited to, bank and credit card account information or personal information, such as name, address, social security numbers, etc.) stored or transmitted in electronic form; (ii) network security liability arising from the unauthorized access to, use of, or tampering with computer systems, including hacker attacks or inability of an authorized third-party to gain access to your services, including denial of service, unless caused by a mechanical or electrical failure; and (iii) liability arising from the introduction of a computer virus into, or otherwise causing damage to, a customer’s or third person’s computer, computer system, network, or similar computer related property and the data, software, and programs thereon.

11. Incurrence of Costs

Vendor’s compliance with this Exhibit and any actions required of Vendor herein (including without limitation responding to any Buyer requests authorized by this Exhibit), shall be at Vendor’s sole and exclusive expense and shall be included as part of the price of the services provided by Vendor pursuant to the Agreement.

12. Survival of Provisions

The rights and obligations of the parties under this Exhibit survive the termination, cancellation, or expiration of the Agreement.