Last Edit: February 2024
In these General Terms and Conditions (“Terms”), ACT Power Services, LLC is referred to as “Company” and the addressee named in the Purchase Order is referred to as “Vendor.” Company and Vendor are each a “Party” and collectively are hereinafter referred to as the “Parties.”
The Purchase Order shall be governed by these Terms, which Company may amend, modify, or replace, unless otherwise specified in the Purchase Order (such Purchase Order and these Terms being hereinafter referred to collectively as the “Purchase Order”). The PO constitutes the sole and entire agreement of the Parties and supersedes all prior understandings, agreements, or communications, both written or oral, with respect to the goods and services specified in the Purchase Order. No term or condition of the PO may be waived or modified except by Company in writing. Unless otherwise agreed in writing, these Terms shall also apply to all future Purchase Orders between the Parties, even if these Terms are not sent with each individual purchase order.
1. Acceptance. Vendor shall be deemed to have accepted these Terms if Company has provided these Terms to Vendor. Acknowledgement, shipment, or performance of any part of the Purchase Order will also constitute acceptance by Vendor, without reservation, of all of the terms of the PO. The Terms shall apply even where Company accepts delivery without reservation having knowledge of conflicting or deviating terms and conditions of Vendor. Company hereby specifically objects to any alteration of the PO or to any additional or different terms or conditions set forth in any communication from Vendor.
2. Delivery Date. Vendor shall perform the services and/or deliver the goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing (the “Delivery Date”). Timely delivery and performance of the services and goods is of the essence. Vendor shall deliver the goods, or any components of goods (collectively, the “Products,” and, each, individually, a “Product”) and perform any services (the “Services”) in a prompt and expeditious manner on the timeline directed by Company so as to avoid delay in the work being contemplated, or being completed,byCompany (a “Project”or “Projects”). If Vendorfails to deliver either the services or the goods by the Delivery Date, Company may terminate the Purchase Order immediately by written notice to Vendor and Vendor shall pay all expenses directly attributable to Vendor’s failure to timely deliver the services and goods. Company may, in its sole discretion, accept a revised delivery or performance schedule. Such revisions will be binding on Company only if Company has given its express written consent to the change. Company may require Vendor to make late shipments via the fastest means available, shipped prepaid at Vendor's sole expense.
3. Delivery Location.
a. All services and goods shall be delivered to the address specified in the Purchase Order during Company’s normal business hours or as instructed by Company.
b. In the event the PO requires Vendor to perform services or delivery of goods on or at a project site: (i) Vendor is responsible for inspecting the site and surrounding areas relevant to the services and goods and for ensuring that Vendor is familiar with all site conditions, including access, soil and subsoil conditions, and all other site conditions (including applicable law) and for making all reasonable enquiries and investigations that may affect the cost and expense of executing the services and goods; (ii) Vendor shall be given access to the site at times agreed to in writing; (iii) Vendor shall attend all required site orientation sessions before performance on any site; and (iv) Vendor shall provide, at Vendor’s expense, all facilities and other amenities as may be required for performance related to the services and goods at the site. Vendor shall establish and implement a substance abuse and drug testing program, that, among other things, prohibits the use of illegal drugs and alcohol on the at the project site and prohibits any employees of Vendor from entering the project site while under the influence of illegal drugs or alcohol. Vendor shall comply with the Company safety plan and all applicable health and safety laws or requirements of any governmental authority or other agency having jurisdiction over any element of the services and goods, sha ll take reasonable safety precautions relative to the services and goods, and shall exercise reasonable efforts to eliminate or mitigate all reasonably foreseeable safety hazards created by or otherwise relative to the services and goods. Vendor shall report to Company immediately any injury to Vendor or Vendor’s personnel that occurs on a site. Company may at any time require Vendor to remove from the site, for such period of time as Company shall deem reasonable, any Vendor personnel if for any reason such person becomes unacceptable to Company, including but not limited to, such person’s conduct not in conformance with Company’s safety plan. Any costs associated with the addition, replacement, or renewal of any such personnel, whether at Company’s request or otherwise, is the responsibility of the Vendor.
4. Shipping Terms. Delivery shall be made delivery duty paid in accordance with any specific terms on the PO. Vendor shall give written notice of shipment to Company when the goods are delivered to a carrier for transportation and shall provide Company all reasonably supportive documents for such transportation. The Purchase Order number must appear on all shipping documents and packaging and markings shall include but not be limited to: (i) transportation documents; (ii) commercial invoice(s); (iii) packing lists (including quantities and/orwattages); (iv) container numbers; (v) port dates and information; (vi) serial number(s); and (vii) bill of material. Vendor shall not charge for any packing containers, loading, or draying, unless otherwise authorized by this Purchase Order. Vendor further agrees to pack, mark, and describe all merchandise to obtain the lowest rate under freight and express classifications, except when Company otherwise specifies such in writing, and any additional costs arising from failure to comply with this provision shall be charged to the Vendor’s account. Vendor agrees promptly to post (i) all bills of lading and shipping receipts to Company, as well as (ii) as applicable, the serial numbers, batch or lot numbers, and other identifying labeling of the Products, on the date of shipment or to include them with the shipment.
5. Title and Risk of Loss. Title passes to Company upon delivery of the goods to the agreed delivery location. Vendor bears all risk of loss or damage to the goods until the goods are unloaded at the agreed delivery location. For each good, Vendor warrants that at the time of delivery of the good to the site (a) Vendor has complete ownership of the good free and clear of all claims, liens, security interests, or other encumbrances; and (b) Company is entitled to clear, complete, and quiet possession of the good. Vendor will not retain any security interest in any Products shipped to Company pursuant to any Purchase Order.
6. Changes. No change to the PO is binding upon Company unless it is in writing, specifically stating that it amends these Terms or any PO, and signed by an authorized representative of Company. Companymay direct Vendor to vary any part of a Purchase Order (including but not limited to changes in services, quantities, specifications, delivery locations and schedules, and method of transportation), and Vendor shall immediately notify Company if Vendor considers it not possible to comply with a variation direction. In the event such direction will require increased cost or an extended Delivery Date, Vendor shall provide to Company detailed information in writing of such required increase and an equitable adjustment to this Purchase Order may be made. Changes shall not be binding upon either Party unless evidenced by a written purchase order change notice issued by an authorized purchasing agent or employee of Company.
7. Inspection/Rejection. The Company has the right to inspect the services and/or goods on or after the Delivery Date, and may, at its sole option, inspect all or a sample of the services and goods. If the services and goods are nonconforming or defective, Company has the right to provide written notice to Vendor of rejection, and Company may choose to rescind the Purchase Order in its entirety, accept the services and goods at a reduced price, or reject the services and goods and require reperformance and replacement of the services and goods. Vendor shall pay all related expenses for Company’s rejection. If Vendor refuses, Company may reperform and replace the services or goods with services and goods from a third party, terminate the Purchase Order and charge Vendorthe cost of such reperformance and replacement of services and goods. Company’s right to inspect does not reduce or otherwise affect Vendor’s obligations under these Terms or the PO. Acceptance of the Products or Services shall in no way be a waiver of or impair Company’s right to reject or revoke its acceptance of nonconforming Products or Services, or to avail itself of any other remedies to which Company may be entitled, notwithstanding Company’s knowledge of the nonconformity, the substantiality of the nonconformity or ease of discovery of the nonconformity.
8. Price. The price of the services and goods is the price stated in the Purchase Order (the “Price”). The Price includes all packaging, transportation costs, insurance, customs duties, tariffs, fees, and applicable taxes, including but not limited to all sales, use, or excise taxes. No increase in the Price is effective without the prior written consent of Company.Company shall have no liability or responsibility for any income, employment, or other taxes incurred by Vendor in the provision of the Services or the delivery of the Products.
9. Payment Terms. Vendor shall provide invoices upon Company receipt of delivery of Products or performance of Services at the Project Location or as otherwise stated in this Purchase Order. Company may adjust the amount due on any invoice for shortage, rejection, or revocation of acceptance of any Products or of any Services. Any cash discount period available to Company shall commence on the earlier of date of receipt of the Products or the date of receipt of the invoice. Vendor shall clearly identify on each such invoice the original Purchase Order number or the applicable contract with Company for any delivery of Products including backordered items, or for any provision of Services. In making payments hereunder, Company shall be entitled to conclusively presume that payment information furnished by Vendor, such as name, account number(s) and name of payee is accurate. In no event shall Company make a second payment where the first payment is made in accordance with the Vendorfurnished information. All payments shall be in U.S. currency. Payment terms shall be net sixty (60) days from date of receipt of invoice unless otherwise agreed to under this PO. All Vendor invoices must be submitted promptly but in no event later then the tenth (10th) day of the month following the month in which Products or Services are provided pursuant to this Purchase Order. All invoices must be accompanied by lien waivers and releases sufficient to discharge a ll liens, lien rights and applicable UCC-1 Financing Statements for Services provided or Products delivered through the date of such invoice. Invoices shall be delivered to accounts@actpowerservices.com.
10. Taxes. Except as may be provided herein, Vendor shall list on each invoice any sale, use or other excise taxes, Company shall make payment of any such taxes or provide appropriate exemption or resale certificates, and Vendor shall remit any such taxes or exemption certificates to the appropriate taxing authorities. Company shall have no liability or responsibility for any income, employment, or other taxes incurred by Vendor in the provision of the Services or the delivery of the Products.
11. Warranty.
a. In addition to any warranty provided in the PO, Vendor warrants to Company that for one year (1) yearfrom the Delivery Date (the “Warranty Period”), the services and goods will be free from defects in workmanship, material, and design; conform to all applicable specifications provided by Company; be fit for their purpose and operate as intended; be merchantable; comply with all state and federal rules and regulations; be free and clear of all liens, security interests, or other encumbrances; and not infringe upon or misappropriate any third party’s intellectual property rights. This warranty may run directly to Company, Owner, any Company Affiliate, any Company Financing Party, or to a Company customer (each a “Company Party,” and, collectively, the “Company Parties”), which may include the project owner, any entity providing financing for the purchase of the goods and/or services indicated on the PO. This warranty may be transferred or assigned to such Company Parties, in the sole discretion of Company or any successor assignee, and without Vendor consent, but with written notice by Company of such assignment. In the case where this warranty runs or has been assigned directly to a Company Party, Company will provide each such Company Party with a copy of this warranty.
b. If, during the Warranty Period, Company discovers or reasonably believes that an identical defect exists in a good resulting from the same root cause with respect to the good provided by Vendor under this PO and all existing Purchase Orders as of the date Company provides notification (a “Serial Defect”), Company shall notify Vendor of such belief. Vendorshall, within thirty (30) days of receipt of such notice, conduct and provide to Company a written root cause analysis setting forth a detailed description of the circumstances underlying the Serial Defect and the goods reasonably likely to be affected thereby. In the event the root cause analysis determines a Serial Defect has occurred, then, no later than fifteen (15) days following Vendor’s determination of a Serial Defect, Vendor shall present to Company a written plan for performance of repair and/or replacement obligations and for addressing any other potentially-impacted goods which are not yet subject to a warranty claim, for Company’s review and approval (the “Serial Defect Remediation Plan”). The Serial Defect Remediation Plan shall provide for completion of Vendor’s repair and/or replacement obligations not later than sixty (60) days following the delivery of the Serial Defect Remediation Plan. Company shall promptly review the Serial Defect Remediation Plan, and Vendorshall incorporate any comments or revisions needed pursuant to Company’s review. Upon Company’s approval of any Serial Defect Remediation Plan, Vendor shall immediately commence performance of work pursuant to the Serial Defect Remediation Plan, at Vendor’s sole cost and expense. All work performed under the Serial Defect Remediation Plan shall be subject to the warranties provided in Section 11 of these Terms and in the PO for a period equal to the remaining Warranty Period plus an additional twelve (12) months. Vendorshall defend, indemnify, and hold Company harmless for all reasonable labor and material costs incurred by Company in removal and/or disposal of all goods affected by the Serial Defect, and for reinstallation of repaired and/or replaced Parts. The provisions of this Section 11b shall collectively be the “Serial Defect Warranty.”
12. Indemnification. Vendor shall defend, indemnify, and hold harmless Company, Company’s customer, affiliates, officers, directors, employees, successors, and assigns against any and all loss, injury, death, damage, liability, claim, action, judgment, interest, award, penalty, fine, cost, or expense, including reasonable attorney’sfees, arising out of or occurring in connection with the services and goods purchased from Vendor or Vendor’s negligence, willful misconduct, or breach of the Terms. Vendor’s obligations hereunder include defense and indemnification of any intellectual property claims. Vendor shall not enter into any settlement without Company’s prior written consent.
13. Insurance. During Vendor’s performance under this Purchase Order, and any warranty period, the Vendor and its subcontractors, if any, shall secure and maintain, at its own expense, the types and amounts of insurance policies and coverages listed in Exhibit A attached hereto covering the activities of its employees, independent contractors, and representatives in connection with this Purchase Order.
14. Compliance with Law. Vendor represents and warrants that it is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Neither Vendor nor its affiliates has engaged in, or will engage, in connection with any Purchase Order, any acts or transactions in violation of or inconsistent with the economic sanctions or anti-money laundering legislation or regulatory procedures of any governmental authorities or applicable laws. Vendor specifically represents and warrants, on behalf of itself and its affiliates, that it is not the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control. Any violation of this provision shall be a material breach for which Company shall be entitled to immediately terminate any and all POs for cause. Vendorfurther represents it is appropriately licensed and registered to perform the Services in the location or locations contemplated by this Purchase Order. For all Services performed in connection with this Purchase Order, Vendor shall comply with all applicable statutes, laws, codes, ordinances, rules, regulations, and governmental orders pertaining in any way to the Services, including all applicable equal employment opportunity laws.
15. Certification Against Forced Labor. Vendor hereby certifies that it and its subcontractors, and vendors do not and shall not use, or participate in the exploitation of workers (including forced or involuntary labor). Vendor will support and assist in any efforts related to solar supply chain traceability or protocols which will help to identify the source of primary raw materials and inputs and their incorporation into finished or final products. Any violation of this provision shall be a material breach for which Company shall be entitled to immediately terminate any and all POs for cause.
16. Termination.
a. If Vendor: (a) abandons the services and goods; (b) fails or refuses to comply with any applicable law and does not cure such failure to Company’s reasonable satisfaction within ten (10) days after receipt of notice of the same from Company; (c) is adjudged a bankrupt or insolvent, makes a general assignment for the benefit of its creditors, has a trustee or receiver appointed for its property, files a petition to take advantage of any debtor’s act under any applicable law or is the involuntary subject of any petition or action under any debtor’s act under any applicable law; (d) fails to remove any lien filed by Vendor or any of its personnel against the site or any other property of Company or any of its affiliates; (e) assigns or attempts to assign its rights or obligations under the PO or any part thereof to any third party without the prior written consent of Company; or (f) Vendor fails or refuses to perform any other obligation under the PO not already described above, and either (i) does not commence to cure such failure to Company’s reasonable satisfaction within five (5) days after receipt of notice of the same from Company, or (ii) does not cure such failure within ten (10) days after receipt of notice of the same from Company then Company may, at its option and without prejudice to any other rights it may have, by notice, in writing, terminate the PO in whole or part with immediate effect. Vendorshall immediately refund any amounts paid by Company in respect of the services and goods not yet performed under the terminated PO and, if requested to do so by Company, shall deliver to Company any services and goods completed in accordance with the PO, as at the date of termination.
b. Company may terminate the PO at any time, for convenience, in whole or part, by providing at least five (5) days’ written notice to Vendor and may thereafter either by itself or by a third party complete the uncompleted part of the services and goods under the PO. In the event of termination for convenience under this Section, Vendor shall be entitled to payment of the following amounts, as its sole entitlement for compensation arising out of or in relation to such termination: (a) the unpaid value of services and goods completed in accordance with the PO prior to the date of termination; (b) any expenses pre-approved by Company in writing already incurred by Vendor prior to the date of termination; and (c) the cost of goods or materials reasonably ordered by Vendorfor the goods and services under this PO, for which Vendor is legally bound to accept and pay, (subject to clear title and possession of such goods and materials being transferred to Company upon payment), but in no event shall such amounts exceed the Price that would have otherwise been paid to Vendor under the PO but for Company’s termination and Company shall have no further liability to Vendor in respect of the termination.
17. Limitation of Liability; No Consequential Damages.
a. The total aggregate liability of Vendor, its parent company, subsidiaries, Affiliates, divisions, and their respective directors, officers, managers, members, shareholders, employees, agents, representatives, successors, or any combination of them, or Vendor’s subcontractors or suppliers of any tier, on all claims of any kind, whether in contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise, arising out of the performance or breach of these Terms or the PO shall not exceed one hundred percent (100%) of the total aggregate amount of the Price. Notwithstanding the foregoing, the limitation of liability set forth in this Section 18 shall not apply to any of the following (and none of the following shall count toward such limitation of liability): (a) Vendor’s compliance with its indemnification obligations pursuant to Section 12; (b) Vendor’s costs in complying with its obligations under these Terms and providing the services and goods; (c) Vendor’s compliance with its obligations pursuant to Section 19; and (d) damages paid to a third party pursuant to a third-party claim resulting from the personal injury, death, or property damage of the third-party. The total cumulative liability of Company, its parent company, subsidiaries, Affiliates, divisions, and their respective directors, officers, managers, members, shareholders, employees, agents, representatives, successors, or any combination of them, on all claims of any kind, whether in contract, wa rranty, indemnity, tort (including negligence), strict liability, or otherwise, arising out of the performance or breach of these Terms or any PO shall not exceed one hundred percent (100%) of the amount of the Price.
b. Except to the extent of Vendor’s obligations in Sections 12, 13, and 19, in no event shall either Party or its respective partners, successors or assigns be liable (in contract or in tort, including negligence, strict liability, indemnity, and warranty) to the other Party, or its parent corporation, affiliates, partners, successors or assigns, for special, indirect, incidental or consequential damages, resulting from such Party’s performance, nonperformance, or delay in performance of its obligations under these Terms, or from its delay, termination (with or without cause) or suspension of their obligations under these Terms.
18. Waiver. No waiver by any party of the provisions of these Terms or any PO shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise or delay in exercising any rights or remedies arising from these Terms shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right or remedy hereunder preclude further exercise thereof or the exercise of any other right or remedy.
19. Confidential Information. All non-public, proprietary, or confidential information of the Company disclosed to Vendor, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with any Purchase Order is confidential, solely for the use of performing the Purchase Order and may not be disclosed or copied unless authorized by Company in writing. Upon Company’s request, Vendor shall promptly return all documents and other materials received from Company. Company shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information in the public domain, known to Vendor at the time of disclosure, or rightfully obtained by Vendor on a non-confidential basis from a third party. During the business relationship between Company and Vendor or their Affiliates, one or more non-disclosure agreements (“NDAs”) may be, or may have been, entered into. In the event of an apparent conflict between or among provision(s) of this PO and any NDA, such provisions shall be read in a mutually consistent way, or if no such reading is reasonably possible, the provision(s) that are most protective of confidential information shall take precedence over conflicting or less protective provision(s).
Vendor hereby acknowledges that any violation of this section will cause Company immediate and irreparable harm that monetary damages cannot adequately remedy, and Vendor agrees that, upon any actual, impending or threatened breach or violation of any provision of the PO, Company shall be entitled to equitable relief, including injunctive relief and specific performance (without bond or proof of damages), and Vendorshall not plead in defense thereto that there would be an adequate remedy at law. Any such equitable relief shall be in addition to, and not in lieu of, any other remedies that the disclosing Party may have at law, in equity or otherwise under the PO. Vendor shall not engage in any advertising, publicity, or other promotional activity that directly or indirectly mentions or refers to Company, the relationship between the Parties, or the Products or Services provided under this Purchase Order without submitting said information or release to Company for review and written consent.
20. Intellectual Property Rights. Vendor shall pay and at all times remain responsible for all royalties and license fees, if any, for materials, methods, processes, software, and systems used or incorporated into the services and goods. In providing the services and goods, Vendor shall not, nor shall it permit any personnel to, incorporate into the services and goods any materials, methods, processes, or systems which involve the use of any confidential information, intellectual property or proprietary rights which Company or Vendor does not have the right to use or which may result in infringement or other claims or suits against Company or Vendor relating to domestic or foreign patent rights, copyrights or other proprietary rights, or applications for any such rights, or use of confidential information. Vendor shall timely notify Company in writing of any claims which Vendor may receive or become aware of alleging infringement of patents or other proprietary rights that may affect the services and goods.
Except to the extent expressly provided herein, all materials, data, work product, results, reports, drawings, and any other information received, generated, derived, or provided to Company by Vendor (or any subcontractor or vendor to Vendor) pursuant to a Purchase Order will become the property of Company; provided, however, all intellectual property of Vendor (or any subcontractor or vendor to Vendor) owned by or under license to Vendor (or any subcontractor or vendor to Vendor) shall remain the property of Vendor or the applicable licensor; provided, further, that to the extent any such intellectual property remains the property of Vendor or a licensor, Vendor hereby grants, and upon request shall cause its licensor to grant, to Company and Owner an irrevocable, nonexclusive, perpetual royalty-free license (assignable to Company’s successors in interest) to use such intellectual property.
21. Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under the Purchase Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, which could not have been foreseen by such party, and was unavoidable. Vendor shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any force majeure event are minimized, and resume performance under the Purchase Order. If a force majeure event prevents Vendor from carrying out its obligations under the Purchase Order for a continuous period of more than thirty (30) days, Company may terminate this order immediately by giving written notice to Vendor with no further liability. Notwithstanding the foregoing, Vendor’s economic hardship, changes in market conditions, and/or delays or impacts arising out of any pandemic (including any variants or strains of COVID-19) shall not constitute force majeure.
22. Assignment. Vendor shall not assign, transfer, delegate, or subcontract any of its rights or obligations under any PO without Company’s prior written consent. Company may at any time assign, transfer or subcontract any or all of its rights or obligations under any Purchase Order upon written notice to Vendor.
23. Independent Contractor. Vendor shall be an independent contractor, and nothing contained in these Terms or any Purchase Order shall be construed as creating any agency, partnership, joint venture, or other form of enterprise, employment or fiduciary relationship between the parties. Vendor hereby acknowledges and agrees that Vendor has no authority to act on behalf of, or as an agent of, Company, and shall not seek to modify any contract entered into by Company and any of its contractors or other consultants. Vendor shall be required to remind its Affiliates, employees, subcontractors, suppliers, agents, or anyone for whom Vendor is responsible, and any contractor or consultant of Company of its limitation in any situation where a contractor or consultant of Company might reasonably conclude that Vendor is ordering additional or changed work on behalf of the Company.
24. Governing Law; Dispute Resolution. All matters arising out of or relating to these Terms or any Purchase Order shall be governed by and construed in accordance with the laws of the State of North Carolina, without giving effect to any choice or conflict of law provisions. Company shall not be liable in respect of any claim by Vendor (whether in contract, tort, negligence, at equity, or otherwise) arising out of or in relation to the PO unless Vendor has given buyer written notice within fourteen (14) days of first becoming aware of the event or circumstances to which the claim is based. Any dispute, and any action or proceeding arising out of or relating to these Terms or any Purchase Order shall be instituted in the state and federal courts located in Wake County, State of North Carolina, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such proceeding.
25. Cumulative Remedies. The rights and remedies under these Terms are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
26.Notices. All written notices or other correspondence hereunder shall be in writing and addressed to the parties at the addresses set forth in these Terms or the applicable Purchase Order. A written notice is effective only upon confirmed receipt of the receiving party.
27.Severability. If any term or provision of these Terms or any Purchase Order is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this PO or render unenforceable such term or provision in any other jurisdiction.
28. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms or any PO, including but not limited to provisions regarding warranties, indemnification, insurance, compliance with law, confidentiality, governing law, and dispute resolution.
29.Publicity. Vendor shall obtain Company’s written consent prior to release of any information or statement (including but not limited to photographs, statements, releases, marketing materials or publicity of any kind) concerning all or a portion of the services and goods, the Purchase Order, or these Terms to any unaffiliated third party or the public.
30. Security Breach Notification. In the event services and goods are inclusive of software, technology, or information systems, Vendorshall, at its expense: (i) immediately notify Company upon becoming aware of any actual or suspected unauthorized use or disclosure, misuse, loss of or inability to account for Company data (collectively, a “Security Breach”); (ii) investigate such Security Breach; (iii) promptly furnish Company full details of the Security Breach; (iv) take steps to mitigate the effects and minimize the damage resulting from the Security Breach; and (v) take the necessary actions to minimize the likelihood such Security Breach will reoccur.
31. Anti-Corruption. Vendor has conducted its business in compliance with all applicable anti-corruption laws and all anti-terrorism and money laundering laws and has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
Vendor shall not provide any services or goods, until such time as Vendor has furnished Company with a certificate or certificates of insurance that satisfy the following requirements. Vendor shall purchase and maintain, at its own expense, at least the following minimum coverages during the term of this PO, and for two (2) years after expiration of this PO.
1. Commercial General Liability Insurance. Commercial general liability (“CGL”) insurance, written on an occurrence policy form (“modified occurrence” and “claims-made” policy forms are not acceptable), providing coverage for bodily injury, property damage, personal injury and advertising injury, premises, operations (with no exclusion for explosion, collapse and underground coverage), independent contractors, time element (sudden and accidental) pollution including clean-up costs and products-completed operations coverage, with limits of:
$1,000,000 bodily injury and property damage per occurrence limit,
$2,000,000 general aggregate limit (with a “per project” or "per location" endorsement),
$1,000,000 personal injury and advertising injury limit, and
$2,000,000 products-completed operations aggregate limit
The liability policy shall provide cross liability or separation of insureds coverage, contractual liability coverage and broad form property damage coverage (including completed operations), and fellow employee coverage shall be afforded.
2. Auto Liability Insurance. Vendor shall maintain automobile liability insurance for all motorized vehicles used by Vendor in connection with its work under this PO (including coverage for owned, non-owned, and hired automobiles) with limits for Bodily Injury and Property Damage on an occurrence basis in the amount of $1,000,000. Such coverage shall be obtained by Vendor per accident for combined bodily injury, property damage or death.
3. Workers’ Compensation/Employer’s Liability Insurance. Workers’ Compensation insurance (statutory limits complying with the laws of the state in which the Facility is located) and employer’s liability insurance with limits not less than:
$1,000,000 bodily injury by accident (each accident),
$1,000,000 bodily injury by disease (policy limit), and
$1,000,000 bodily injury by disease (each employee).
4. Umbrella or Excess Liability Insurance. Umbrella or follow form Excess Liability insurance, written on an occurrence policy form (“modified occurrence” and “claims made” forms are not acceptable), with limits of liability of $5,000,000 per occurrence/annual aggregate, in excess of the limits of the employer’s liability, CGL and auto liability policies required Articles (1), (2), and (3) above.Vendor shall require each subcontractor to purchase and maintain insurance coverage as provided in this subparagraph, with the exception of limits carried which shall be commensurate with subcontractor exposure.
5.Property Insurance. Vendor and each of its subcontractors, consultants and agents shall be responsible for insuring their own equipment and tools whether on or off site.
6. Professional liability. In the event services and goods are inclusive of professional services, Professional Liability insurance in the amount of $1,000,000 per occurrence or per claim subject to, $1,000,000 in the aggregate.
7.Cyber Liability. In the event services and goods are inclusive of software, technology, or information systems, Vendor shall maintain insurance with limits not less than $5,000,000 per occurrence. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this PO and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, network security, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. The policy shall include, or be endorsed to include, property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the Company in the care, custody, or control of Vendor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Company.
1. Additional Insured Endorsements. Vendor shall include Company, the Financing Parties, subcontractors and such other Persons as may from time to time be reasonably designated by Company in writing as additional insureds under the CGL, Automobile Liability, and Umbrella or follow form Excess insurance required above.
2. Primary Coverage. All insurance (excluding Workers’ Compensation/Employer’s Liability) that Vendoris required to maintain pursuant to the PO shall be primary coverage for such Vendor’s activities or services required under this PO and any coverage maintained by or available to the Company shall be excess and non-contributory with respect to Vendor’s activities or services under this PO.
3. Certificates of Insurance and Other Insurance Documents. Prior to commencing the Services, Vendor shall deliver to Company certificates of insurance evidencing the coverages referred to in this Exhibit A. Vendor insurer’s NAIC number must be listed on the certificate.
a. In the case of policies expiring while the Services are ongoing, a renewal certificate must be received at the business office of the Company within five (5) days of the expiration of the existing policy or policies. Lack of issuance or receipt of a renewal certificate of insurance shall not constitute a waiver of, or estoppel to assert, any requirement under this PO.
b. Each certificate and endorsement must be executed by an authorized agent of the Vendor’sinsurers. To the extent commercially available, policies shall include thirty (30) days’ written notice of cancellation ten (10) days’ in the event of cancellation for non-payment of premium) and such notice, if available, shall be included on certificates of insurance.
4. Insurer Ratings. All insurance referred to in this Exhibit A to be carried by Vendor shall be maintained at its sole expense, with insurance carriers qualified to do business in the state in which the Facility is located and maintaining a rating of not less than A-VIII from A.M. Best & Co. or A from S&P, unless the Company, in writing, in its sole discretion, accepts a lower rating.
5. Cancellation, Non-Renewal, Impairment. Vendor shall notify the Company in writing upon receipt by Vendor, or its insurance broker or agent, of any notice of cancellation, non-renewal or rescission of any policy required to be maintained by Vendor pursuant to this Exhibit A. In addition, Vendor shall notify the Company in writing in the event the payment of any claim(s), or the establishment of any reserve(s), results in impairment of 50% or more of the aggregate limits of the primary CGL or Umbrella or follow form Excess Liability policies required to be maintained by Vendor pursuant to this Exhibit A.
6. Deductibles and Self-Insured Retentions. With respect to any insurance Vendor is required to maintain pursuant to this PO, the deductibles, excess, or self-insured retentions shall not exceed $25,000 unless approved in writing by the Company. Vendor shall be solely responsible to pay any amount that lies within the deductible(s) or self-insured retention(s) of its policies, regardless of the amount of the deductible(s) or self-insured retention(s) and regardless of the cause of the loss or damage.
7. Exclusions. The insurance policies required of and maintained by Vendor pursuant to this PO may not contain any exclusion for claims or suits by one insured against another insured, or for any type of Services to which this PO applies.
8.Additional Insurance. Any type of insurance or any increase of its limits of liability not described above which Vendor requires for its protection, or on account of law or regulation, shall be its sole responsibility and at its sole expense.
9.Waivers of Subrogation. Vendor waives all rights against the Company for recovery of loss, injury and/or damages in arising out of activities or services under the PO. With respect to any insurance required to be maintained pursuant to this PO for this Facility, including but not limited to that set forth herein, Vendor shall, to the extent commercially available, ensure that each insurance policy includes a waiver of rights of subrogation which such Vendor’s insurance carriers might have or claim against the Company arising out of the activities or Services provided under this PO. Vendor hereby agrees, to the fullest extent permitted by law, to defend and indemnify the Company from all such subrogation claims.
10. Subcontractors. Vendor shall require each of its subcontractors to purchase and maintain the insurance coverage Vendor is required to carry pursuant to this PO, including but not limited to all provisions of coverage outlined in the PO, including the Company as additional insureds, providing waivers of subrogation in favor of the Company, and requiring all liability coverage (excluding Worker’s Compensation and Employer’s Liability) of Subcontractor to be primary and non-contributory with any insurance carried by Vendor.
11. No Limitation. None of the requirements contained herein as to types, limits and acceptability of insurance coverage to be maintained by Vendor are intended to, and shall not in any manner, limit or qualify the liabilities and obligations assumed by Vendor under this PO or at law, including, without limitation, Vendor’s indemnification obligations and liability in excess of the limits of the coverages required herein. Neither receipt of certificates, endorsements or policies showing less or different coverage than requested, nor any other forbearance or omission by Vendor, shall be deemed a waiver of, or estoppel to assert, any right or obligation regarding the insurance requirements herein. None of the requirements contained herein shall relieve Vendor, or its subcontractors of any tier, of their respective obligations to exercise due care in the performance of their duties in connection with the Services or to complete the Services in strict compliance with the PO.
12. Vendor Failure to Secure or Maintain Insurance. In the event Vendoris or becomes non-compliant with the insurance requirements of this Exhibit A (fails to secure or maintain any policy of insurance required hereby), the Company, at its sole discretion and election, may (i) secure such policy of insurance in the name of and for the account of Vendor and in such event, Vendor shall reimburse the Company upon demand for the cost thereof; or (ii) terminate this PO, and the Company shall retain all remedies hereunder for breach of this PO. The Company shall have the right to offset the costs of any such insurance, including but not limited to premiums, against any sums payable to Vendor under this PO or otherwise.