Terms and Conditions of Purchase
Except as set forth below, the Terms are applicable to each Purchase Order issued by TerraSlate Paper, LLC (“TerraSlate”) to Seller (each, a “Party” and together, the “Parties”), regardless of whether the Terms are attached to the face of the Purchase Order (the “Purchase Order”), posted on TerraSlate’s website, or delivered separately, and shall be deemed to have been irrevocably accepted by Seller upon the earliest of Seller’s (a) acceptance of the Purchase Order as set forth below, (b) performance of a Deliverable, or (c) acceptance of any payment made by TerraSlate for a Deliverable. Notwithstanding the foregoing, if TerraSlate and Seller have executed and delivered a specific agreement governing the purchase and sale of the Deliverables (a “Specific Agreement”), the Specific Agreement shall govern in lieu of the Terms.
“Effective Date” means the issue date set forth in the Specific Details; “Deliverables” means the services and goods to be provided by Seller as described in the Specific Details or otherwise delivered to TerraSlate; “Price” means the price set forth in the Purchase Order. “Specific Details” means the details contained on the Purchase Order; “Seller” means the Seller described on the Purchase Order; and other capitalized terms shall have the meanings defined herein or in Section 14.
1. Scope. TerraSlate engages Seller as an independent contractor to provide the Deliverables in accordance with the Terms.
2. Term. The term of the Agreement begins as of the date of execution of the applicable Purchase Order and ends upon the completion of Seller’s obligations herein in accordance with the Terms (the “Term”). Either Party may terminate a particular Purchase Order as provided in the Terms or in the applicable Purchase Order.
3.1. In General. Subject to the Terms, TerraSlate shall pay the Prices set forth in the Purchase Order, except to the extent the aggregate Prices exceed the not to exceed amount specified in the Purchase Order (the “Not-to-Exceed Amount”) or the not to exceed amount per Good (on a fully-loaded cost basis) specified in the Purchase Order (the “Not to Exceed Unit Amount”), when due under the Agreement (each such payment, a “Payment”), on the condition that (a) Seller has performed in accordance with the Terms, (b) there are no active disputes between the Parties, and (c) TerraSlate has received the applicable invoice from Seller, together with all supporting documentation required under the Agreement.
3.2. Excluded Costs. If Seller intends to charge TerraSlate any fees for travel time of Seller’s Personnel or any internal costs, such as overhead, administrative fees, or other similar costs, expenses, or fees (or markups thereon) related to Deliverables provided by a supplier to Seller in connection with a Purchase Order, all such amounts shall be included in the Prices set forth in the Purchase Order. The Prices set forth in the applicable Purchase Order shall remain in effect for the purchase of all Goods and performance of all Services under such Purchase Order, regardless of changes in currency rates, revenue laws, treasury regulations or tariffs, increases in the appraisal of the value of the Goods purchased or to be purchased under the Purchase Order by the customs authorities of any country, or other variables unless otherwise provided in the Purchase Order or agreed upon in writing by the Parties.
3.3. Taxes. Except for sales, use, value-added taxes and taxes on the real property owned by TerraSlate, any taxes, excise, duties, and assessments in any manner levied, assessed, or imposed upon Seller or its supplier by any Governmental Entity shall be paid for by Seller without reimbursement from TerraSlate. Seller shall promptly pay and discharge when due, unless the validity or application is being contested by Seller in good faith, any usual and customary taxes, excises, duties, and assessments, together with any interest and penalties, if any.
3.4. Invoices. Seller shall electronically invoice TerraSlate by electronic mail to email@example.com in accordance with the schedule for payment set forth in the Purchase Order. Each invoice shall (a) refer to the applicable Purchase Order and contain other identifying information reasonably satisfactory to TerraSlate and (b) contain supporting information and documentation pertaining to the applicable Deliverables. TerraSlate shall pay the Prices set forth in each invoice within 30 days after receipt of the completed Deliverables thereunder or as otherwise specified in the applicable Purchase Order; provided, however, that if TerraSlate disputes the amount of an invoice, TerraSlate may withhold and offset payment of the disputed amount, and the Parties shall promptly use commercially reasonable efforts to resolve the dispute. TerraSlate shall not be obligated to pay any amount set forth in an invoice delivered more than 120 days after the date on which the Deliverables referenced in the invoice were performed or delivered, as applicable. If a dispute occurs concerning an invoice, the deadline for payment of an invoice set forth in this Subsection shall be determined using the date of delivery of the corrected invoice after such dispute is resolved and not the date of delivery of the disputed invoice. TerraSlate’s payment of an invoice does not constitute acceptance of the Deliverables.
3.5. Late Fees. If any Payment due from TerraSlate to Seller or any payment due from Seller to TerraSlate is delinquent for more than 30 days, such amount will accrue interest at the lesser of one and one-half percent per month or the maximum rate permitted by Law.
3.6. No Liens. To the extent Seller has been paid by TerraSlate in accordance with the Agreement, Seller shall promptly pay all undisputed amounts owed for services, materials, equipment, and labor used or furnished by any supplier to Seller in the performance of the Deliverables. Seller shall not permit a Lien caused by, through, or under Seller to attach to the Deliverables, the Location, TerraSlate’s property, or TerraSlate-Procured Items, other than any Lien that arises from TerraSlate’s failure to pay part or all of the Prices when due, that exists with the consent or approval of TerraSlate, or that for which Seller promptly obtains bonds or any other form of security reasonably acceptable to TerraSlate. Seller shall notify TerraSlate of the assertion of any Lien promptly upon knowledge thereof. If Seller fails to pay or discharge any such Lien or to provide a bond in an amount and from a surety acceptable to TerraSlate to protect against such Lien within 30 days after notice of the existence thereof, TerraSlate may pay, discharge, or obtain a bond or security for such Lien and, upon such payment, discharge, or posting of security therefor, may recover from Seller the amount thereof, together with all expenses (including reasonable attorneys’ fees) incurred by TerraSlate in connection with such payment or discharge, or set off all such amounts against any sums owed by TerraSlate to Seller.
3.7. All Payments Subject to Release of Liens. Prior to each Payment, if requested by TerraSlate, Seller shall certify to TerraSlate, and provide to TerraSlate sufficient documentation (including an interim conditional Lien waiver and release in form and substance acceptable to TerraSlate) to establish that the Services, Goods, TerraSlate-Procured Items, and the Location property are free at that time from Liens arising out of or in connection with the Agreement or performance by Seller or Seller’s Personnel of the Deliverables. Prior to the final Payment, Seller shall deliver to TerraSlate a final release, assignment, and waiver of Liens, in form and substance acceptable to TerraSlate, from each supplier who has not previously provided such a final release and Seller’s final Lien waiver in form and substance acceptable to TerraSlate. Seller shall cause all Lien waivers provided by Seller and its suppliers to comply with the Laws of the state in which the Location is located. If Seller fails to deliver any required release or waiver of a supplier, Seller may provide to TerraSlate, in lieu thereof, a bond, in form, and issued by a Person, satisfactory to TerraSlate, to fully indemnify the TerraSlate Group against any Loss resulting from Claims, Liens, or other interests of such supplier.
4. Deliverables Generally.
4.1. Contacts. Each Party shall designate a representative (a “Contact”) who shall have the sole authority to provide any consent, authorization, or rejection of the Party under the Agreement and, in the case of TerraSlate’s Contact, to issue a Change Order for, or add or cancel Deliverables under, a Purchase Order on TerraSlate’s behalf.
Performance Standards. Seller shall perform the Deliverables (a) in compliance with all Permits, Laws, and Policies, (b) in a professional manner with the standard of care, skill, and diligence normally provided by a professional person or entity in the performance of services similar to the Deliverables (“Good Practices”), (c) in compliance with all final specifications, drawings, metrics, and representations agreed upon or otherwise provided by TerraSlate or set forth in the Specific Details (“Specifications”), (d) using qualified, competent, experienced, and as applicable, licensed Seller’s Personnel, (e) in accordance with the Delivery Dates, and (f) to the extent applicable to the Deliverables, in accordance with the manufacturers’ instructions for the Goods and TerraSlate-Procured Items.
Prevent Damage. Seller shall, and shall cause Seller’s Personnel to, prevent damage to the Location, any personal property located thereon, all parallel, converging, and intersecting public and private utilities, highways, waterways, railroads, drainage ditches, culverts, and all other property on or adjacent to the Location during the performance of the Deliverables. If damage is caused by Seller or Seller’s Personnel, then within a reasonable time after the damage occurs, Seller shall provide TerraSlate with a report detailing the occurrence, any required repairs, and the estimated cost and duration of the repairs. If any such property is damaged or destroyed in the course of the performance of the Deliverables, Seller shall, at its own expense, rebuild, restore, or replace such damaged or destroyed property.
TerraSlate may reject a Deliverable by notice to Seller for defect or non-conformance with the requirements of the Agreement (a “Defective Item”) at any time even though the Defective Item may have previously been inspected and accepted (a “Rejection”). If a Rejection occurs and Seller does not deliver a conforming Good or correct the Service (collectively, “Corrective Work”) within 30 days (or such other reasonable amount of time agreed to by the Parties) after TerraSlate’s notice of a Rejection, then at TerraSlate’s election, TerraSlate may either (a) cancel the order as to the Defective Item without paying cancellation charges, in which case Seller shall refund the Payments paid for the Defective Item and pay TerraSlate the reasonable costs incurred by TerraSlate installing and removing the Defective Item or (b) cause the non-conformity to be corrected at Seller’s expense.
Permits; Safety. Seller shall (a) obtain all Permits applicable to the Deliverables prior to the commencement thereof and maintain the Permits in full force and effect (“Permits”), (b) be solely responsible for the safety and industrial hygiene of Seller’s Personnel, and (c) cause Seller’s Personnel to comply with United States Occupational Safety’s and Health Administration’s regulations and all other Laws.
Records. Seller shall, and shall cause its suppliers to, maintain true, correct, and complete books and records relating to the Deliverables and the amounts billed to TerraSlate (collectively, “Records”) in accordance with generally accepted accounting principles and the Policies for at least seven years after Seller receives the final payment under the Purchase Order. Any representative authorized by TerraSlate may audit any and all Records at any reasonable time before the date that is seven years after Seller receives the final payment under the Purchase Order, so long as (a) such an audit occurs no more than once per calendar year without just cause, (b) such representative shall comply with Seller’s site-specific rules and regulations while on Seller’s premises, (c) any pricing information related to a fixed fee Price may be redacted by Seller, and (d) all information obtained by TerraSlate in any audit (excluding information related to TerraSlate) is Seller’s Confidential Information.
Inspection of Work of Other Sellers. If any part of the Deliverables depends on proper execution or results of the work of TerraSlate or any other Seller of TerraSlate, Seller shall inspect and promptly report to TerraSlate any known discrepancies or defects in such work that Seller discovers or reasonably should have discovered in performance of the Deliverables that renders such work unsuitable. Failure of Seller to so report any known discrepancies or defects shall constitute an acceptance of the work of the other Seller as fit and proper to receive the Deliverables.
Inspection and Tests of Deliverables. TerraSlate and its personnel may inspect and test all Deliverables at any reasonable time and place, including the plant or yard of Seller or any of Seller’s Personnel, and Seller shall assist TerraSlate and TerraSlate’s personnel in carrying out such inspections and tests of the Deliverables. While on the premises of Seller, Seller’s Personnel, or the Manufacturer, TerraSlate shall, and shall cause TerraSlate’s personnel to, comply with all site-specific rules and regulations. At TerraSlate’s request, Seller shall supply test reports and material certificates. TerraSlate’s performance of (or failure to perform) any inspection or test shall not be deemed an assumption of risk, liability, or control over Seller or Seller’s Personnel, an acceptance or approval of the Deliverables, or a waiver of Seller’s obligation to perform the Deliverables in accordance with the covenants and warranties of the Agreement or TerraSlate’s right to make a claim for Losses hereunder.
Liquidated Damages. Seller shall perform the Deliverables in accordance with the Schedule. If Seller fails to comply with the Schedule, Seller shall pay to TerraSlate the liquidated damages set forth in the Purchase Order to the extent permitted by Law, up to an amount equal to the total compensation set forth in the applicable Purchase Order. Seller shall pay such liquidated damages on a daily basis to the account designated by TerraSlate for each day liquidated damages accrue. Damages to TerraSlate caused by Seller’s failure to comply with the Schedule are difficult to ascertain. Accordingly, liquidated damages may be set forth in the Purchase Order, and such liquidated damages represent a fair, reasonable, and proportionate approximation of TerraSlate’s damages caused thereby and do not constitute a penalty, and shall be the sole damages available to TerraSlate for Seller’s failure to comply with the Schedule but the liquidated damages shall not preclude TerraSlate’s exercise of other non-monetary remedies that may be available for such default, including termination of a Purchase Order or the Agreement, equitable relief, or a request for adequate assurance, or any remedies (monetary or otherwise) available for other defaults that occur currently with, before, or after such default.
Seller Representations. Seller represents and warrants to TerraSlate that, as of the Effective Date of each Purchase Order: (a) Seller has sufficient financial capacity to perform the Deliverables, (b) Seller has the appropriate experience or capability to perform the Deliverables, and (c) Seller has not provided false, nonresponsive, misleading, or incomplete information for items required herein. Seller shall immediately notify TerraSlate of any change in the status of the representations and warranty set forth in this Section 4.12.
Suppliers. Seller may engage suppliers that are listed in the Purchase Order, or approved in advance by TerraSlate, to perform the Deliverables; provided, however, that no such engagement shall relieve Seller of any of its obligations hereunder. TerraSlate shall have the right to reject, for good cause, any proposed supplier not listed in the Purchase Order, and Seller shall not engage any proposed supplier so rejected by TerraSlate. All requirements contained in the Agreement are to be passed down to all suppliers of all tiers. If a supplier cannot maintain like insurance applicable to that supplier’s scope of work, then Seller shall notify TerraSlate in writing of the same and advise TerraSlate of the form and amount of insurance maintained by such supplier. Seller must obtain TerraSlate’s written approval of any supplier who cannot comply with the insurance requirements set forth herein. Seller shall ensure that all of its suppliers discharge their respective obligations in compliance with the Terms. Seller shall be responsible for the Deliverables and its performance in accordance with the Terms, regardless of any failure of any suppliers to perform or any disagreement with any supplier or between any suppliers. As between TerraSlate and Seller, Seller shall be solely responsible for the acts, omissions and defaults of its suppliers and Seller’s Personnel. Nothing in the Agreement shall be construed to impose on TerraSlate any obligation, liability, or duty to a supplier or to create any contractual relationship between any supplier and TerraSlate. No Supplier is intended to be, nor shall be, deemed a third-party beneficiary of the Agreement. Seller shall be solely responsible for paying each supplier all amounts due under the agreement with such supplier.
Additional Terms. If the Deliverables include the sale of, or provision of, goods, materials, equipment, or supplies, Seller shall comply with the Terms contained in Appendix A. If the Deliverables include the performance of any services, Seller shall comply with the Terms contained in Appendix B. If the Deliverables include installation work, Seller shall comply with the Terms contained in Appendix C.
5. Change Orders.
5.1. Generally. There shall be no changes to the Deliverables or deviation from the Terms except to the extent provided in a written change order, signed by the Parties’ Contacts, stating TerraSlate’s and Seller’s mutual agreement on all of the following: the change in, addition to, or removal from the scope of the Deliverables (the “Scope Change”); any change to the Service; and any adjustments in the Schedule (a “Change Order”). TerraSlate may request a Change Order at any time for any reason. If a previously unknown physical condition at the Location of an unusual nature or differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for under the Agreement arises, Seller may request a Change Order. Upon execution of a Change Order, Seller shall diligently perform the Deliverables set forth therein in accordance with and subject to all of the Terms.
5.2. Change Order Process. Should a Party desire to make a Scope Change, such Party shall submit a Scope Change request to the other in writing. Regardless of which Party has issued such request, within ten business days after delivery of such request, Seller shall submit to TerraSlate a detailed proposal (the “Proposal”), stating the effect of such request, if any, on the Prices and Schedule. TerraSlate shall then accept or reject in writing the Proposal. If TerraSlate accepts the Proposal, the Parties shall execute a Change Order reflecting the Scope Change, adjustments to the Prices and Schedule. If TerraSlate rejects the Proposal, TerraSlate shall notify Seller of its proposed modifications to the Proposal or the Scope Change, and Seller shall make any reasonable modifications. The foregoing process shall continue until the requesting Party withdraws its request for a Scope Change or the Parties execute a Change Order, whichever occurs first.
5.3. Disputes Regarding Change Orders. If TerraSlate is the requesting Party, from the date of TerraSlate’s request until the withdrawal of such request or the execution of a Change Order, Seller shall perform or comply with TerraSlate’s requested requirements and TerraSlate shall reimburse Seller the reasonable and documented costs incurred by Seller therefore. If within 30 days after the initial request for a Scope Change, the Parties have not executed a Change Order and the requesting Party has not withdrawn its request, either Party may seek any remedies available at law or in equity.
6.1. TerraSlate’s Information. TerraSlate shall own all information, including data in any form, that is captured, stored, processed, or transmitted by the Deliverables or by Seller on TerraSlate’s behalf. TerraSlate grants to Seller a nonexclusive nontransferable license to such information to the extent necessary for performance of the Deliverables.
6.2. Deliverables. TerraSlate shall own all right, title and interest in and to the Deliverables (following transfer of title thereof as provided herein) and TerraSlate-Procured Items, including the Deliverables and TerraSlate-Procured Items delivered to TerraSlate as part of cancelled Deliverables prior to cancellation, and all Intellectual Property and other rights in the Deliverables (following transfer of title thereof as provided herein) that are developed specifically and exclusively for TerraSlate and described in the Purchase Order, except to the extent that any of the foregoing contains Seller Materials (the “Deliverable IP”). For purposes of this Section 6, and unless otherwise provided in a Purchase Order, a Deliverable shall be deemed to be developed specifically and exclusively for TerraSlate if TerraSlate pays for the development of such Deliverable. Seller shall execute such documents, as are necessary to effectuate TerraSlate’s ownership of such rights. All Deliverable IP shall be deemed “works-made-for-hire” within the meaning of the copyright laws of the United States. Seller assigns, and upon the transfer of title of each Deliverable as provided herein automatically assigns, to TerraSlate, its successors and assigns, all right, title and interest therein and in all applicable United States and international copyrights, including all renewals, extensions and continuations thereto, and all other Deliverable IP therein. Seller shall execute such further documents and perform such further acts as may be necessary to perfect the foregoing assignment and to protect TerraSlate’s rights in such copyrights and other Intellectual Property. If Seller fails or refuses to execute such documents or perform such acts, Seller appoints TerraSlate as Seller’s attorney-in-fact (this appointment to be irrevocable and coupled with an interest) solely to act on Seller’s behalf and to execute such documents and perform such acts. Seller’s services are on behalf of and for the exclusive use for TerraSlate.
6.3. Intellectual Property of Seller. Seller shall own its working papers, preexisting materials, software and associated source code, trade secrets, and Intellectual Property, general skills, know-how, processes, reports, notes, calculations, and estimates, except for Intellectual Property developed specifically and exclusively for TerraSlate and described in the Purchase Order (collectively, “Seller Materials”). To the extent that any Seller Materials are incorporated into any Deliverables provided hereunder, Seller grants to TerraSlate a perpetual, irrevocable, nonexclusive, non-transferrable (except to any assignee or successor of TerraSlate), worldwide, royalty-free right and license to use, all Seller Materials incorporated into the Deliverables as necessary to use the Deliverables as permitted herein. To the extent any Deliverable includes any third-party software or other works licensed by Seller from third-parties, Seller shall cause TerraSlate to have a perpetual, irrevocable, nonexclusive, worldwide, royalty-free right and license to use such third-party software or other works.
6.4. Seller’s Representation. Seller represents and warrants that, as of the Effective Date under each Purchase Order: (a) Seller owns or has sufficient rights (or will own or have sufficient rights as of delivery to the Location) as a licensee to all Deliverable IP necessary for the transfer of title in the Deliverables and transfer of all rights for the complete and unfettered enjoyment of ownership of and dominion over such Deliverables; (b) Seller has all necessary rights to fulfill its obligations and grant all licenses and rights granted under the Agreement; (c) the Deliverables, and TerraSlate’s receipt and use thereof (including the Deliverable IP and the Documents) as contemplated by the Agreement, do not infringe or violate any Intellectual Property or other rights of any Person, and (d) the Deliverable IP includes all Intellectual Property reasonably necessary and sufficient for the performance of the Deliverables.
7. Limitations on Liability.
7.1. TO THE EXTENT PERMITTED UNDER LAW, TERRASLATE NOR ITS RELATED PARTIES SHALL BE HELD LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR HARM TO REPUTATION) ARISING OUT OF THEIR PERFORMANCE OR NON-PERFORMANCE OF THE AGREEMENT.
7.2. TO THE EXTENT PERMITTED UNDER LAW, TERRASLATE’S AGGREGATE LIABILITY UNDER THE AGREEMENT ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON–PERFORMANCE OF THE AGREEMENT SHALL EXCEED THE TOTAL COMPENSATION SET FORTH IN THE APPLICABLE PURCHASE ORDER.
8. Default; Remedies.
8.1. Payment Default. If a Party fails to pay any undisputed material amount due and payable under the Agreement within 30 days after its due date and fails to cure such failure within seven days after notice thereof, then such Party shall be in default (a “Payment Default”).
8.2. Performance Default by TerraSlate. If any of the following conditions remain un-remedied for 30 days after written notice thereof by Seller to TerraSlate, TerraSlate will be in default:
8.2.1. TerraSlate is adjudged bankrupt or insolvent,
8.2.2. TerraSlate makes a general assignment for the benefit of its creditors,
8.2.3. TerraSlate files a petition to take advantage of any debtor’s act, or to reorganize under the bankruptcy or similar laws, or
8.2.4. TerraSlate commits any material breach of the Agreement.
8.3. Performance Default by Seller. If any of the following conditions remain un-remedied for seven days after notice thereof by TerraSlate to Seller, Seller will be in default:
8.3.1. Seller is adjudged bankrupt or insolvent,
8.3.2. Seller makes a general assignment for the benefit of its creditors,
8.3.3. a trustee or receiver is appointed for Seller or for any of its property,
8.3.4. Seller files a petition to take advantage of any debtor’s act, or to reorganize under the bankruptcy or similar laws,
8.3.5. Seller abandons the Deliverables or ceases or suspends performance of all or a material portion of the Deliverables,
8.3.6. any of Seller’s representations set forth herein is untrue in any material respect,
8.3.7. Seller commits any other material breach of the Agreement, except that no cure period or notice from TerraSlate shall be required if the default involves a breach of the Sections entitled “Confidentiality,” “Intellectual Property,” “Independent Contractor,” or violation of Law that materially affects the Deliverables in an adverse manner,
8.3.8. any Milestones is not achieved on or before the applicable Milestone Dates, unless liquidated damages are being paid,
8.3.9. Seller fails to supply sufficient labor, material, services or equipment so as to complete the Deliverables timely and in accordance with the Terms,
8.3.10. the maximum amount of any liquidated damages has accrued unless the Seller continues to pay liquidated damages and TerraSlate agrees to continued performance,
8.3.11. Seller is in default, or has defaulted, in the same manner and due to the same set of circumstances, under at least one other agreement entered into by Seller and TerraSlate;
provided, however that no cure period or notice from TerraSlate shall be required in the case of Section 8.3.8 or 8.3.11 or if any of the above events occurs more than once during any six-month period.
8.4. Remedies. Upon a Payment Default or a default pursuant to Section 8.2 or 8.3 (a “Performance Default”), the non-defaulting Party shall be entitled to any of the following remedies upon notice to the defaulting Party:
8.4.1. Suspend some or all of its performance under the Agreement,
8.4.2. Terminate the Agreement and have no further obligation under the Agreement, or
8.4.3. Declare all or part of the defaulting Party’s obligations under the Agreement immediately due.
The non-defaulting Party may set off against all amounts the non-defaulting Party owes the defaulting Party all amounts the defaulting Party owes the non-defaulting Party. The remedies of the Parties hereunder are cumulative and in addition to all rights and remedies at law and in equity.
9. Termination and Suspension.
9.1. Right to Suspend Performance of the Deliverables. TerraSlate may elect to suspend performance of all or any part of the Deliverables upon at least 5 days’ prior notice to Seller (or, in emergency situations, upon such prior notice as circumstances permit) indicating the portion of the Deliverables the performance of which TerraSlate has elected to suspend, TerraSlate’s estimate of the duration of such suspension, and the effective date of such suspension of the Deliverables. Upon the effective date of such suspension, Seller shall stop performance of the Deliverables that TerraSlate has elected to suspend and shall continue to complete performance of the balance of the Deliverables. This Subsection shall not apply to any suspension of all or any part of the Deliverables requested or directed by TerraSlate as a result of Seller’s or Seller’s Personnel’s failure to comply with the Agreement.
9.2. Termination for TerraSlate’s Convenience. TerraSlate may, for its convenience and without cause, terminate any part of the Deliverables or all remaining Deliverables at any time by delivering notice to Seller specifying the part of the Deliverables to be terminated and the effective date of termination. TerraSlate may terminate the Agreement prior to the Effective Date without liability or penalty. Immediately upon receipt of such notice, Seller shall stop performance of the terminated Deliverables and shall immediately order and commence demobilization with regard to the terminated Deliverables. In the event of a partial termination, Seller shall continue to prosecute the part of the Deliverables not terminated. In the event of a termination by TerraSlate under this Subsection after the Effective Date, TerraSlate shall pay to Seller the applicable portion of the “early termination payment” amount set forth in the Purchase Order for such termination and such payment shall be Seller’s sole and exclusive remedy, and TerraSlate’s sole and exclusive liability, with respect to such termination. Damages to Seller caused by TerraSlate’s termination of the Deliverables under this Subsection are difficult to ascertain, but the termination payment referenced in this Subsection represents a fair, reasonable, and proportionate approximate of the damages caused thereby and does not constitute a penalty.
9.3. Transition of Deliverables. Upon expiration or termination of the Agreement, Seller shall use its best efforts to ensure the transition of Deliverables from Seller back to TerraSlate (or another service provider) is completed in a manner that is efficient and cooperative, and that provides TerraSlate with the information and resources in Seller’s possession that would be reasonably necessary for TerraSlate (or another services provider) to perform the remaining Deliverables.
9.4. Surviving Obligations. Neither termination nor expiration of the Agreement shall relieve (a) Seller of its obligations with respect to confidentiality set forth herein, (b) either Party of any obligation under the Agreement that expressly survives termination of the Agreement, (c) either Party of any obligations or liabilities for loss or damage to the other Party arising out of or caused by acts or omissions of such Party prior to the effectiveness of such termination or arising out of such termination, except as otherwise provided in any provision of the Agreement expressly limiting the liability of either Party, or (d) Seller of its obligations as to portions of the Deliverables already performed or obligations assumed by Seller prior to the date of termination, unless otherwise agreed by TerraSlate in writing.
9.5. Condition of Location. If the Agreement is terminated for cause by TerraSlate, Seller shall use reasonable efforts to restore the Location to its prior condition, removing the effects of any work done by or through Seller Group, at the Seller’s own cost and expense, if requested in writing by TerraSlate.
10.1. Indemnity by Seller. To the extent permitted by Law, Seller shall indemnify and hold harmless TerraSlate Group from and against Losses sustained or incurred by a member of TerraSlate Group, to the extent the Losses arise out of:
10.1.1. bodily injury or property damages directly or indirectly caused by a member of Seller Group or Seller’s Personnel,
10.1.2. a negligent or wrongful act or omission of, or a breach of the representations, warranties, or covenants of the Agreement by, any member of Seller Group or Seller’s Personnel,
10.1.3. infringement of the Intellectual Property of a third party by the Deliverables or otherwise directly or indirectly caused by Seller Group or Seller’s Personnel,
10.1.4. any Hazardous Substances brought on to the Location by Seller Group or Seller’s Personnel,
10.1.5. any negligent exacerbation or intentional release by Seller Group or Seller’s Personnel of any pre-existing Hazardous Substances at the Location or Hazardous Substances introduced upon the Location by any party, or
10.1.6. injury to Seller Group or Seller’s Personnel while performing the Deliverables,
each of the foregoing Sections 10.1.1. through 10.1.5 except to the extent the Losses are caused by or result from the negligence of a member of the TerraSlate Group.
10.2. Procedure. If TerraSlate becomes aware of (a) a Third Party Claim against a member of TerraSlate Group that could reasonably be expected to result in a Loss that is subject to the indemnification obligations of this Section 10 or (b) any inquiry or investigation that TerraSlate believes may involve or expect to lead to a Third Party Claim against a member of the TerraSlate Group that could reasonably be expected to result in such a Loss, such Party shall give Seller notice of such claim, inquiry or investigation, except that any delay in providing notice shall not serve as a bar to indemnification hereunder except to the extent that Seller’s ability to defend against or avoid claims has been prejudiced by such delay. No later than 30 days after receiving notice of a claim, TerraSlate shall notify Seller whether TerraSlate or Seller shall assume control of the defense of the claim. If TerraSlate elects to assume control of the defense, Seller shall reimburse TerraSlate as expenses are incurred in connection with such defense. If TerraSlate elects that Seller shall assume the defense, Seller shall use counsel that is reasonably approved by TerraSlate, and TerraSlate may have its own counsel present at its own cost to monitor proceedings related to the claim and shall cooperate with Seller at Seller’s reasonable request in defending the claim. Seller shall not settle or compromise any claim without the prior consent of TerraSlate.
10.3. Additional Procedure for Infringement. Without limiting Seller’s obligations under Section 10.1, if a third-party claim, demand, or action (“Third Party Claim”) has been made that the Deliverables have infringed any Intellectual Property, or if, in any Party’s judgment, the Deliverables are likely to be infringing (in each case, an “Infringing Item”), then Seller shall (a) procure for TerraSlate the right to continue using the Infringing Item, or (b) replace the Infringing Item to make its use non-infringing while yielding substantially equivalent results. If neither option is available, Seller shall refund to TerraSlate the Price paid for the Infringing Item.
10.4. Effect of Insurance. The obligations of this Section 10 shall apply regardless of the amount of insurance coverage held by Seller or any other Law that would limit the amount or type of damages, compensation, or benefits payable by or for Seller.
11.1. Confidential Information. “Confidential Information” means, with respect to both Parties, the Terms, and with respect to a Party making a disclosure (the “Disclosing Party”), all (a) non-public documents and information designated by the Disclosing Party as “Proprietary” or “Confidential” or that the other Party (the “Receiving Party”) knows or has reason to believe the Disclosing Party treats as confidential, (b) business and investment opportunities disclosed by the Disclosing Party, (c) proprietary information of the Disclosing Party disclosed in oral or other media form that is identified in writing as confidential within 30 days following the disclosure, (d) business plans and methods, customer information, engineering, and operating and technical data of the Disclosing Party, and (e) if TerraSlate is the Disclosing Party, the contents of the Documents (excluding Seller Materials), the and Deliverables’ documents. “Confidential Information” of a Disclosing Party shall not include information that (i) was in the public domain, or that subsequently becomes part of the public domain, except by the wrongful disclosure hereunder by the Receiving Party, (ii) as evidenced in writing, was in the Receiving Party’s possession prior to receipt of the same hereunder and was not acquired from a third party under any obligation of confidentiality known to the Receiving Party with respect to such information, (iii) as evidenced in writing, was received from a third party who had a right to make such disclosure, or (iv) can be proven to have been independently developed by the Receiving Party, excluding, in all cases, the contents of the Documents (other than Seller Materials).
11.2. Confidentiality Obligations. Subject to the following Subsections, the Receiving Party shall (a) keep the Confidential Information of the Disclosing Party in strict confidence (in no event exercising less care than the degree of care used to protect its own confidential information), (b) not use (except for the purpose of performance under this Agreement or as requested or directed by the Disclosing Party), publish or disclose to third parties the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent, and (c) upon the request of the Disclosing Party, promptly return to the Disclosing Party or destroy all written copies of the Disclosing Party’s Confidential Information.
11.3. Disclosure to Advisors. The Receiving Party may disclose Confidential Information to its third-party advisors, and consultants that are acting for the Disclosing Party’s benefit in connection with a Deliverable and that have a need to know such information in order to provide advice or services, provided that such advisors are bound by an agreement to not disclose the Confidential Information to any third party without the Disclosing Party’s prior consent.
11.4. Disclosure Compelled by Law. If the Receiving Party is compelled to produce Confidential Information of the Disclosing Party by Law, the Receiving Party shall give the Disclosing Party prompt notice of such legal process and shall reasonably cooperate with the Disclosing Party in seeking a protective order or other appropriate protection. If a protective order or other appropriate protection is not obtained, or if the Disclosing Party waives its right to seek a protective order or other appropriate protection, the Receiving Party shall furnish only that portion of the Confidential Information that, upon the advice of legal counsel, it is legally required to disclose, and exercise reasonable efforts to obtain assurance that confidential treatment shall be afforded such Confidential Information.
11.5. Information Security. Seller shall establish and maintain an information security program that is designed to: (a) ensure the security and confidentiality of the TerraSlate Group’s Confidential Information, (b) protect against any anticipated threats or hazards to the security or integrity of the TerraSlate Group’s Confidential Information, (c) protect against unauthorized access to or use of the TerraSlate Group’s Confidential Information, and (d) ensure the proper disposal of the TerraSlate Group’s Confidential Information (the “Information Security Program”). In no case shall the safeguards of the Information Security Program be less stringent than the relevant information security safeguards set forth in the Policies. Upon TerraSlate’s request, Seller shall submit its Information Security Program to TerraSlate for review and comply with TerraSlate’s reasonable requests for corrective actions if any deficiencies are observed by TerraSlate. Seller shall promptly report to TerraSlate all security related incidents involving the TerraSlate Group’s Confidential Information or information systems that capture, process or transmit the TerraSlate Group’s Confidential Information within 24 hours after the incident is initially detected. Seller shall promptly address the underlying reasons for such security related incident to the extent commercially reasonable.
11.6. Documents Protected. Each Party understands and agrees that any and all contracts prepared by the other Party hereto are protected by copyright or by the Terms. The Receiving Party may not copy or use in any manner, all or any portion of, such documents for any purpose.
12. Governing Law; Dispute Resolution.
12.1. Governing Law; Jurisdiction. The laws of the Location State will govern the Agreement, without giving effect to conflict of laws principles. Subject to Section 12.2 below, each Party consents to the exclusive jurisdiction of the state and federal courts in the Location State and agrees that the exclusive location of such courts is convenient, proper and is an integral part of the Agreement. Each Party will bear its own costs for any disputes arising under the Agreement, provided that the substantially prevailing Party shall be entitled to reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which such Party may be entitled. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
12.2. Arbitration. Subject to Section 12.3, any claim or dispute directly or indirectly arising from or relating to the Agreement or any related actions or omissions shall be subject to arbitration in the Location State. The arbitration shall be administered by a JAMS Neutral and in accordance with JAMS comprehensive rules and procedures. Judgment on any award rendered in such arbitration shall be binding upon the Parties and may be entered in any court having jurisdiction. If the Parties agree, a mediator may be consulted prior to arbitration. THE PARTIES KNOWINGLY AND VOLUNTARILY WAIVE ANY AND ALL RIGHTS TO LITIGATE MATTERS IN COURT, INCLUDING ANY RIGHTS TO TRIAL BY JURY.
12.3. Injunctive Relief. Notwithstanding Section 12.2, if a Party violates, or threatens to violate, Sections 6, 11, or 13.4, the other Party may seek immediate and permanent injunctive relief in addition to all other rights and remedies the other Party has at law or in equity, and posting of a bond or cash shall not be required as a pre-condition to such relief.
12.4. Obligation to Proceed. Unless directed otherwise by TerraSlate in writing, Seller will proceed with the Deliverables so as to complete the Deliverables in accordance with the Schedule even if it has a dispute with TerraSlate.
Insurance. Seller shall, at its sole expense, obtain and maintain for at least the longer of the Warranty Period and the applicable State statute of repose the applicable insurance set forth below (the “Required Insurance”) underwritten by carriers with an AM Best’s insurance rating of A-VIII or higher or otherwise acceptable to TerraSlate and licensed to do business in the respective State of the Location:
General Requirements. Sellers shall carry:
Workers Compensation/Employer’s Liability. Statutory workers compensation and employers liability insurance, with employers liability limits of not less than $1,000,000 each accident for bodily injury by accident and $1,000,000 each employee for bodily injury by disease. This insurance shall be in accordance with all Law applicable to the employees engaged in the performance of the Deliverables. To the extent exposure exists, Seller shall provide coverage in compliance with the Federal Employer’s Liability Act, the U.S. Longshoreman & Harbor Workers Act, and the Jones Act (Maritime, to include Maritime Employer’s Liability). If Seller is performing Deliverables in multiple states, Seller shall provide “All Other States” coverage. This insurance shall include an Alternate Employer endorsement.
Commercial General Liability. Commercial General Liability Insurance with a limit of not less than $1,000,000 each occurrence. This insurance shall cover liability arising from premises, operations, products liability, completed operations, personal and advertising injury, and liability assumed under a contract, including tort liability of another assumed in a business contract and related legal expenses (including attorneys’ and experts’ fees). This insurance shall also include sudden and accidental pollution. The limits of this coverage can be met through a combination of Commercial General Liability Insurance and Excess and Umbrella Liability Insurance.
Automobile Liability. Automobile Liability Insurance with a limit of not less than $1,000,000 combined single limit. This insurance shall cover liability (including bodily injury and property damage) arising out of any auto (including owned, hired, and non-owned autos). The limits of this coverage can be met through a combination of Automobile Liability Insurance and Excess and Umbrella Liability Insurance.
Excess or Umbrella Liability. Excess or Umbrella Liability insurance on at least a following form basis in excess of the underlying insurance described in the foregoing paragraphs with a limit of not less than $5,000,000 per occurrence. This insurance shall include a “drop down” provision, which provides that the umbrella or excess will “drop down” over reduced or exhausted underlying aggregate policy limits.
Asbestos Removal. If Seller performs Deliverables that include building construction work or are reasonably likely to encounter asbestos, Seller shall cause the Commercial General Liability Insurance to include an asbestos coverage endorsement.
Pollution Coverage. If Seller performs installation or construction Deliverables, Seller shall obtain sudden and accidental pollution coverage under a separate policy with a minimum limit of not less than $3,000,000 each occurrence if sudden and accidental pollution coverage is not available under the Commercial General Liability Insurance and the Excess and Umbrella Insurance.
Pesticides. If Seller uses pesticides in their Deliverables, Seller shall obtain an endorsement covering damages from pesticides or other similar material if the Commercial General Liability Insurance excludes coverage for such damages.
Aircraft Liability. If Seller uses aircraft in the Deliverables, Seller shall carry aircraft liability insurance to insure the use of any owned, non-owned or hired aircraft with limits of not less than $5,000,000.
Professional Liability. If Seller perform design or engineering work, Seller shall also carry Professional Liability (Errors and Omissions) insurance for damages due to or arising from the rendering or failing to render professional services, in the amount of not less than $5,000,000 per claim limit.
Upon TerraSlate’s request, Seller shall provide to TerraSlate certificates of insurance, policies, and endorsements evidencing the Required Insurance. Seller shall cause the Required Insurance to be (a) endorsed to name the TerraSlate Group as additional insureds (except for the workers’ compensation and professional liability insurance policies, if applicable), (b) the primary coverage without any right of contribution from any other insurance held by the TerraSlate Group, and (c) so written or endorsed to include waivers of all subrogation rights of the insurers against the TerraSlate Group. The additional insured endorsements shall not limit coverage available to additional insureds to the minimum limit requirements identified in the Agreement. Seller shall notify TerraSlate at least 30 days prior to any reduction, cancellation, or expiration of any insurance policy provided hereunder. Seller shall cause its suppliers to carry the Required Insurance and to act in accordance with all of the other Terms. If Seller fails to furnish and maintain the Required Insurance, TerraSlate shall have the right, at its option, to terminate the Agreement or to take out and maintain such insurance and hold Seller liable for the cost.
13.2. Anti-Corruption Laws. Seller shall comply with all Laws related to anti-bribery and anti-corruption (the “Anti-Corruption Laws”). Seller shall create and maintain in place throughout the Term its own policies and procedures to ensure compliance with the Anti-Corruption Laws, enforce such policies and procedures as appropriate, promptly report to TerraSlate any request or demand for any undue financial or other advantage of any kind received by it related to, or that could reasonably impact the performance of, the Agreement, immediately notify TerraSlate if a foreign public official becomes an officer or employee of Seller or acquires a direct or indirect interest in Seller, promptly upon TerraSlate’s reasonable request, certify to TerraSlate in a writing signed by an authorized officer of Seller compliance with the Anti-Corruption Laws and the forgoing requirements of this Section 13.2 (such laws, policies, and requirements, the “Anti-Corruption Terms”) and provide to TerraSlate such supporting evidence thereof as TerraSlate may reasonably request, and ensure that all of its employees or Sellers performing services in connection with the Agreement do so on the basis of a written agreement that imposes on and secures from such employees and Sellers terms equivalent to those imposed by the Anti-Corruption Terms. Seller shall be responsible for the observance and performance by such employees and Sellers of the Anti-Corruption Terms. Nothing in this Section 13.2 shall prohibit customary supplier discounts to private parties.
13.3. Nature of Agreement; Independent Contractor. The Parties intend the Agreement to be a “service contract” and agree to characterize it accordingly, and not to assert it as a financing, lease, purchase, or other arrangement. Seller Group shall be deemed independent contractor for all purposes, and not employees, agents, or representatives of any member of the TerraSlate Group. Seller shall not hold itself out as an agent of any member of the TerraSlate Group or enter into any contract that purports to bind any member of the TerraSlate Group without such member’s prior consent, and any such contract shall be void.
13.4. Mutual Representations. Each Party represents and warrants that the Agreement is (a) valid, binding, and enforceable against it in accordance with the Terms, (b) has been duly authorized for execution and performance in accordance with Law and with any articles, charter, or other organizational documents or authorities applicable to such Party, and (c) does not result in the breach of any agreement by which such Party is bound.
13.5. Force Majeure. To the extent a Party is rendered wholly or partly unable to perform, or is delayed in the performance of, its obligations under the Agreement due to an event that is beyond its reasonable control, is not the result of negligence, willful misconduct, breach of contract, or intentional act or omission of the affected Party, and could not reasonably be anticipated as of the date of the applicable Purchase Order (a “Force Majeure”), such failure to perform or delay in performance shall not constitute a default under the Agreement, so long as the affected Party notifies the other Party as soon as practicable following the commencement of the Force Majeure, takes reasonable steps to avoid or remove the Force Majeure, and resumes performance when and to the extent the Force Majeure is removed. Unless a Force Majeure substantially frustrates the performance of a Party’s obligations under the Agreement, the Force Majeure shall not operate to excuse, but only delay performance, and the obligations of such Party shall be extended in an amount of time equal to the time of such delay. If a Force Majeure damages the Deliverable, the Location, or any Goods or TerraSlate-Procured Items, and such damage results in additional cost to Seller to complete the Deliverables or a delay in Seller’s performance of the Deliverables, Seller may request a Change Order to cover such cost or delay.
13.6. No Publication. Seller Group shall not use TerraSlate’s name or the fact that Seller Group is involved in any way with Deliverables for TerraSlate in any press releases, media statements, or public communications without TerraSlate’s prior written consent. Seller shall not use TerraSlate’s name, logos, copyrights, trademarks, service marks, trade names, or trade secrets in any way without TerraSlate’s prior written consent, and TerraSlate shall not be deemed to have granted Seller Group a license of, or granted Seller Group any rights in, any of the foregoing by entering into the Agreement. Unless the Purchase Order is terminated, TerraSlate may use Seller’s logo and trademarks for the purpose of TerraSlate’s advertising and marketing to prospective customers.
13.7. Further Assurances. The Parties shall cooperate fully with each other and execute such further instruments, documents, and agreements, and shall give such further written assurances, as may be reasonably requested by another Party to better evidence and reflect the transactions described herein and contemplated hereby, and to carry into effect the intent and purposes of the Agreement.
13.8. Entire Agreement. The Agreement completely and exclusively states the entire understanding of the Parties regarding its subject matter and supersedes all prior proposals, agreements, or other communications between the Parties, oral or written, regarding its subject matter. If any Deliverables are performed pursuant to a Seller Document that contains terms or conditions that are different from, or in addition to, the Terms (“Proposed Terms”), TerraSlate rejects the Proposed Terms unless otherwise specified in writing, regardless of when a Seller Document containing Proposed Terms is received by TerraSlate; otherwise, TerraSlate rejects Seller’s Proposed Terms. The Terms contained in the body of the Agreement shall be deemed incorporated into and made a part of each Purchase Order.
13.9. Amendment. Except as otherwise specified in the Agreement, the Agreement may be modified only by a document signed by both Parties.
13.10. Assignment. Except as otherwise set forth in the Terms, Seller shall not assign, delegate, or subcontract any portion of the Agreement without TerraSlate’s prior consent. Any assignment, delegation, or subcontracting without such prior consent shall be void. If TerraSlate consents to an assignment, Seller shall ensure that such assignee complies with the Agreement, and Seller shall be liable for any Losses arising out of such assignee’s non-compliance.
13.11. Survival. The Terms, including all indemnification obligations, warranties, and guarantees of Seller set forth in the Terms herein, shall survive the expiration or termination of the Agreement to the full extent necessary for their enforcement or for the protection of the Party in whose favor they operate.
13.12. Severability; Interpretation. If any provision of the Agreement is found unenforceable or invalid, such unenforceability or invalidity will not render the Agreement unenforceable or invalid as a whole; provided that each provision that is so found to be unenforceable or invalid because of the amount or size of the burden or benefit shall be automatically reduced to the extent and by such amount such that the burden or benefit becomes enforceable and valid, and, in particular, the amount or size of any such burden or benefit provision found to be so invalid or unenforceable shall be read, notwithstanding any other provision of the Agreement, as if such provision read “to the maximum extent permitted by Law”.
13.13. No Third-Party Beneficiaries. The Agreement and all associated rights are intended for the sole benefit of the Parties and will not imply or create any rights on the part of, or obligations to, any third-party.
13.14. Notices. Except as set forth in Section 3.4 with respect to invoicing, all consents, notices, or other communications hereunder shall be sufficient if given in writing and delivered in person or by email, overnight courier, or certified mail to the receiving Party at the address or email address shown for the signatory in the Purchase Order, or to such other address or email address as such Party may have given to the other by notice pursuant to this Section. All consents, notices, or other communications hereunder shall be deemed delivered, given, and received (a) on the date of delivery, in the case of delivery via personal delivery or email, (b) on the delivery or refusal date, as specified on the return receipt in the case of certified mail, or (c) on the tracking report, in the case of overnight courier.
13.15. Interpretation. As used in the Agreement: the singular includes the plural and vice versa; reference to a document, Law, or Policy means such document, Law, or Policy as amended from time to time; the term “or” is not exclusive; “include” or “including” and variations thereof means including, without limitation; headings are not a part of the Agreement; references to “supplier” also mean “subcontractor”; references to money refers to United States currency; references to TerraSlate include its affiliates, successors, and assigns; and the terms “hereof,” “hereunder,” “herein,” “hereby,” and derivatives or similar words refer to the entire Agreement.
13.16. Controlling Agreement. If a conflict exists among the Terms and the terms contained in the Purchase Order, the Purchase Order controls over these Terms, except as otherwise specified in the applicable provision in the body of the Agreement. If a conflict exists between any of the provisions of the Terms, the provisions of the Terms shall control in accordance with the following order of priority: Law, Specifications, policies of TerraSlate, manufacturers’ instructions of the Goods and TerraSlate-Procured Items, and Good Practices. If Seller commenced Deliverables prior to execution of the Agreement or a particular Purchase Order, or the performance of Deliverables continues after the termination or expiration of the Agreement or a particular Purchase Order, the Terms shall govern such Deliverables.
14. Glossary. Capitalized terms not otherwise defined in the Agreement have the following corresponding meanings:
“Agreement” means the applicable Purchase Order, the Terms, and all appendices, exhibits, and attachments attached to the foregoing.
“Claim” means any claim, demand, action, judgment, suit, or legal proceeding that could reasonably be expected to result in a Loss.
“Seller Documents” means proposals, bids, quotations, bill of lading, receipts, invoices, packing slips, acknowledgments, and other documentation issued by Seller in connection with the performance of the Deliverables, other than a Purchase Order, or provided to Seller or TerraSlate by a Manufacturer or a supplier of Seller.
“Seller Group” means Seller, its affiliates, Seller’s Personnel and its and their respective officers, directors, shareholders, members, and partners, and the successors and assigns of all of the foregoing.
“Seller’s Personnel” means Seller’s employees, suppliers, affiliates, vendors, agents, and invitees and their respective employees, Sellers, suppliers, affiliates, vendors, agents, and invitees, as applicable.
“Documents” means written materials created, written, or developed for TerraSlate or the Deliverables, including the materials described in the Purchase Order.
“Delivery Date” or “Milestone” means, with respect to any Deliverable, the date for delivery of such Deliverable set forth in the applicable Schedule.
“Goods” means the Goods set forth in the Purchase Order, if any.
“Governmental Entity” means any state, county or municipality, or any foreign, federal, state, county, or local governmental department or agency.
“Guaranteed Milestone Date” means, with respect to a Milestone, the date set forth in the Schedule on which Seller guarantees that such Milestone will be achieved.
“Hazardous Substance” means (a) any substance that is listed, defined, designated or classified under any environmental Law as a hazardous material, substance, constituent or waste, toxic material, substance, constituent or waste, radioactive material, substance, constituent or waste, pollutant, contaminant, or special waste, (b) any material, substance, chemical, constituent or waste regulated under any environmental Laws, and (c) petroleum, petroleum products, radioactive materials, polychlorinated biphenyl, pesticides, asbestos, or asbestos-containing materials (ACM).
“Intellectual Property” shall mean all intellectual property rights throughout the world, whether existing under statute or at common law or equity, now or hereafter in force or recognized, including copyrights, trade secrets, trademarks and service marks, patents, inventions, designs, logos and trade dress, “moral rights,” mask works, publicity rights, and privacy rights; and any application or right to apply for any of these rights, and all renewals, extensions and restorations, whether or not issued or registered by any Governmental Entity.
“Law” means any applicable foreign, federal, state, local, tribal, or other law, rule, regulation, ordinance, zoning requirement or other legal requirement.
“Lien” means any mortgage, pledge, lien, charge, security interest, encumbrance, or other claim of any nature.
“Location” means the location of TerraSlate’s offices or the location described in the Purchase Order.
“Location State” means the State of Colorado.
“Losses” means losses, expenses, liabilities, damages, fines, and penalties, including court costs, attorneys’ and professionals’ fees and expenses, and other litigation or settlement expenses.
“Milestone” means each key schedule milestone related to the Deliverables set forth in the Schedule.
“Permits” means all federal, state, and local permits, licenses, clearances, and approvals.
“Schedule” means the schedule for performance of Deliverables and delivery of Goods set forth in the Purchase Order for the applicable Deliverables and Goods.
“Services” means the services set forth in the Purchase Order.
“TerraSlate-Procured Items” means the equipment, materials, supplies, tools, appliances and consumables furnished by TerraSlate for Seller’s use in performance of the Deliverables.
“TerraSlate Group” means TerraSlate and its respective officers, directors, shareholders, members, partners, affiliates, employees, and customers, and the successors and assigns of all of the foregoing.
“Terms” means the terms and conditions set forth in these Terms and Conditions of Purchase together with the terms and conditions set forth in the Purchase Order
to Terms and Conditions of Purchase
PROCUREMENT TERMS AND CONDITIONS
To the extent Seller furnishes Goods in connection with the Services, as set forth in the Purchase Order, this Appendix A shall apply to and is incorporated into the Agreement between the Parties. Terms with initial-capitalized letters that are not defined below shall have the meanings given to them in the above-referenced Terms and Conditions of Purchase.
1. Specifications. The Seller shall cooperate with TerraSlate in defining the specific design, specifications, and selection of the Goods in addition to the specifications set forth in the Purchase Order.
2. Cancellation Charges. TerraSlate may cancel any orders for Goods prior to the Effective Date without any penalty or liability. If TerraSlate cancels or returns any Goods after the Goods are shipped following the Effective Date, TerraSlate shall pay the restocking fee set forth in the Purchase Order, if any.
3. Shipping; Delivery. Seller shall ship, package, and deliver the Goods Delivery Duty Paid (DDP) to the delivery location set forth in the Purchase Order, Incoterms 2020 in accordance with the Schedule and the shipment specifications set forth in the applicable Purchase Order, or if none are stated, in such a manner as may be required for the protection of Goods from damage or destruction by hazards during shipping and delivery and in compliance with Law. Within 24 hours after shipment of any Good, Seller shall deliver to TerraSlate a shipment notification containing the date the Goods were shipped from Seller’s facility, the name and type of transportation carrier, and the transportation tracking number. All packages shall include labels and tags containing adequate and accurate information with respect to use, safety, and treatment of the packaged Goods. Notwithstanding anything to the contrary within Delivery Duty Paid (DDP), Incoterms® 2020, Seller shall unload the Goods at the delivery location.
4. General Warranty. In addition to warranties contained in the Agreement, Seller warrants to TerraSlate that the materials, equipment, and goods described in the Purchase Order, used by Seller in performing Services, or otherwise provided by Seller under the Agreement (collectively, the “Goods”) will (a) conform to the Specifications, (b) be free of defects in material and workmanship, without variation, and of even kind, quality, and quantity within each unit and among all units, fit for the purpose for which the Goods are ordinarily used, free and clear of any Liens, except as provided in Section 3.6, and (c) comply with all Law. The foregoing warranties shall survive TerraSlate’s inspection, acceptance, and payment.
5. Additional Warranty. Seller warrants to TerraSlate that none of the software, if any, included in the Goods shall (a) introduce or include any Trojan horse, virus, worm, trap spyware, back door, disabling or destructive code, time, clock, counter, or other limiting design or routine that causes the software or any other part of the Goods to be erased, inoperable or otherwise incapable of being used in the full manner for which it was intended, or (b) contain code or materials subject to non-negotiable licenses, including “open source” or “freeware” software, or other materials requiring that software combined or distributed with such materials be disclosed or distributed in source code form, licensed for the purpose of making derivative works, or re-distributable at no charge or subject to material limitations or conditions.
6. Assignment of Manufacturer Warranties. If Seller is not the manufacturer of a Good (the “Manufacturer”), Seller shall (a) secure the warranties, service life policies, and remedies set forth in the Terms from the Manufacturer, (b) assign the warranties, service life policies, and remedies to TerraSlate effective upon the expiration of the Warranty Period, and (c) before the expiration of the Warranty Period, upon TerraSlate’s request, serve as TerraSlate’s agent for purposes of administering the warranties, service life policies, and remedies provided by the Manufacturer in accordance with the Terms and otherwise assist TerraSlate in obtaining warranty service from the Manufacturer.
7. Assignment of Manufacturer Indemnities. If Seller is not the Manufacturer, Seller hereby assigns to TerraSlate all of Seller’s right, title, and interest in each applicable indemnification commitment owed to Seller by the Manufacturer, including any Manufacturer’s indemnification obligations in the event of Intellectual Property Right infringements or violations, personal injury or property damage, or violations of Law. Seller shall obtain the written consent of each Manufacturer to the assignment of the Manufacturer’s indemnification obligations to TerraSlate. Seller shall execute and deliver such further instruments and take such further acts as may be reasonably requested to enable TerraSlate to exercise and enforce in Seller’s name all of such rights.
8. Manuals. Concurrently with delivery of each Good, Seller shall deliver to TerraSlate in electronic or hard copy form all storage, installation, erection, operation, and maintenance manuals available for such Good not previously delivered to TerraSlate. Seller shall deliver all updates to such manuals promptly following Seller’s creation thereof or, if Seller is not the Manufacturer, receipt thereof. If Seller is not the Manufacturer, Seller shall deliver all Manufacturer updates to manuals for the Goods promptly following Seller’s creation thereof or, if Seller is not the Manufacturer, receipt thereof from any Manufacturer.
9. Title. Title to each Good shall transfer from Seller to TerraSlate upon the earlier of TerraSlate’s acceptance of the Good at the delivery location or TerraSlate’s payment to Seller of any portion of the Payment for such Good. Such transfer of title shall in no way affect TerraSlate’s and Seller’s rights as set forth in other provisions of the Agreement.
10. Security Interest. Without affecting the Parties’ intention that title to the Goods transfers to TerraSlate as provided in the previous Section, Seller hereby grants to TerraSlate a purchase money security interest in the Goods upon and to the extent of TerraSlate’s payment of any portion of the Price for such Goods to secure TerraSlate’s interest in such Goods, and hereby authorizes TerraSlate to file or record any documents or instruments, including Uniform Commercial Code, financing statements or fixture filings, amendments, and continuation statements to give third parties notice that TerraSlate is the owner of the Goods.
11. Risk of Loss. Unless Seller is required to install the Goods, as set forth in the Purchase Order, risk of loss to the Goods shall transfer to TerraSlate upon completion of Seller’s or its carrier’s delivery and unloading and TerraSlate’s acceptance of the Goods at the delivery location. If Seller will also perform installation or construction Services, then risk of loss of the Goods shall remain with Seller until the TerraSlate confirms acceptance of the installation of the Goods.
12. Export Laws and Sanctions. Seller shall comply with all Laws related to the performance of the Services and the import and export of the Goods and shall not violate, or cause TerraSlate to violate, any sanctions imposed by the United Nations, the European Union, the United States of America, or any Governmental Entity having jurisdiction over Seller, TerraSlate, or the transactions contemplated hereunder. Seller shall immediately notify TerraSlate if Seller is or becomes listed in any United Nations, European Union, or United States sanctioned- or denied-entities list or if Seller’s export privileges under United States or other country law are otherwise denied, suspended, or revoked in whole or in part by any Governmental Entity.
13. Actions Upon Termination. If the Agreement is terminated for any reason, upon TerraSlate’s request and payment of all amounts due Seller under the Agreement that accrued prior to such termination, Seller shall deliver any non-cancelled Goods and any other associated property of TerraSlate in Seller’s possession or control, to a location identified by TerraSlate within the metropolitan area of the State in which the Location is located, at TerraSlate’s sole expense, in undamaged condition and in good working order within 10 business days after such request.
14. Assurance. If Seller provides Goods and no installation or construction Services, TerraSlate may request written or financial assurance that Seller shall complete its performance of the Services on time. If Seller fails to give TerraSlate adequate assurance of performance after written demand therefor when reasonable grounds for insecurity arise, then (a) TerraSlate may cancel the Purchase Order in whole or in part as to Goods not yet delivered to the delivery location or Services unperformed without liability for cancellation charges and may procure elsewhere services similar to the cancelled Services; and (b) Seller shall reimburse TerraSlate for any payments previously made by TerraSlate to Seller for such cancelled Goods and Services.
To Terms and Conditions of Purchase
GENERAL SERVICES TERMS AND CONDITIONS
To the extent Seller provides services, as set forth in the Purchase Order, this Appendix B shall apply to and is incorporated into the Agreement between the Parties. Terms with initial-capitalized letters that are not defined below shall have the meanings given to them in the body of the Terms and Conditions of Purchase.
1. Scope. Seller shall perform the Services by providing the labor, materials, supplies, tools, equipment, products, appliances, Permits, documentation, reporting, storage, disposal, clean-up, training, oversight, and facilities as may reasonably be required, necessary, incidental, or appropriate (whether or not specifically set forth in the Agreement) to complete the Services such that it satisfies the applicable terms, conditions, guarantees, and requirements set forth in the Agreement. Seller shall be fully and solely responsible for quality control in connection with all materials, machinery, equipment, products, supplies, appliances, tools, and articles used in the performance of the Services.
2.1. Other Personnel. Seller shall provide, or shall cause its suppliers to provide, the personnel required to perform the Services in accordance with the Schedule. Such Seller’s Personnel shall have had appropriate training and experience in performing the Services. If any Seller’s Personnel speak Spanish in a primary English-speaking Location or English in a primary Spanish-speaking Location, Seller shall ensure that, at all times during the performance of the Services, at least one supervisor present at the Location shall be bilingual in English and Spanish. TerraSlate shall have the right, at all times, to require for just cause that any Seller’s Personnel be removed and replaced by qualified Seller’s Personnel reasonably acceptable to TerraSlate.
2.2. Cooperation with Other Service Providers. Seller shall cooperate with TerraSlate and other sellers to coordinate the performance of the Services and the services of other sellers of TerraSlate.
3. Environment, Health, and Safety at the Location.
3.1. Location. TerraSlate assumes no any affirmative duties with respect to the safety of Seller’s Personnel. If an accident involving Seller’s Personnel occurs at a Location, Seller shall notify TerraSlate immediately. Seller shall promptly furnish TerraSlate full written reports of any accidents involving individuals or property associated with the Services.
3.2. Hazardous Substances. Seller shall not, nor shall it permit Seller’s Personnel to, bring any Hazardous Substance onto the Location or incorporate any Hazardous Substance into the Location, other than Hazardous Substances to be used by Seller or Seller’s Personnel in a manner that does not violate any Law and is consistent with Good Practices. Seller shall minimize the use of Hazardous Substances in the performance of the Services. Before completion of the Services, Seller shall remove from the Location all Hazardous Substances previously brought onto the Location by Seller or Seller’s Personnel, unless the same have been permanently incorporated into the Location in accordance with the Agreement. Seller shall provide written notice of the presence at the Location of Hazardous Substances to TerraSlate and, if required by Law, any Governmental Entities.
3.3. Encountering Hazardous Substances at the Location. If Seller or Seller’s Personnel encounters any Hazardous Substances or other hazardous conditions at the Location, Seller shall immediately stop the Services in the area affected and report the condition to TerraSlate, unless encounter with such Hazardous Substances is inherent with the Services. Seller shall not have any liability arising from pre-existing Hazardous Substances at the Location or Hazardous Substances introduced upon the Location by any third party (except any member of Seller Group) other than due to the intentional release thereof by Seller Group or the negligent exacerbation of such Hazardous Substances by Seller Group.
4. Interference. Except as otherwise provided by the Agreement or otherwise authorized by TerraSlate in writing, Seller will not allow any service, alteration, modification, interference, or other infringement upon the Goods or the TerraSlate Items.
5. Monitoring by TerraSlate. During the performance of the Services, Seller shall permit (and, as applicable, shall cause Seller’s Personnel to permit) TerraSlate, and its representatives to monitor and inspect the Services and the progress of the Services against the Schedule to verify compliance with the Terms and the Schedule.
6. Progress Reports. In intervals acceptable to TerraSlate, Seller shall provide progress reports describing the activities in connection with the Services, any safety incidents, the names of the individuals at the Location, and the progress of the Services toward achievement of the Schedule.
7. Standards for Completion. Prior to Seller’s notice to TerraSlate of completion of the Services, the Services must conform to the Terms and satisfy TerraSlate’s expectations.
8. No Waiver of Warranties. None of TerraSlate’s inspection or review of the Services or verification of completion of the Services at a Location shall be deemed a waiver of the warranties set forth in the Agreement.
to Terms and Conditions of Purchase
INSTALLATION TERMS AND CONDITIONS
To the extent Seller provides installation Services, as set forth in the Purchase Order, this Appendix C shall apply to and is incorporated into the Agreement between the Parties. Terms with initial-capitalized letters that are not defined below shall have the meanings given to them in the above-referenced Terms and Conditions of Purchase.
1. Scope. Seller shall perform the Services by providing the labor, materials, supplies, tools, equipment, products, appliances, Permits, documentation, reporting, storage, disposal, clean-up, training, oversight, and facilities as may reasonably be required, necessary, incidental, or appropriate (whether or not specifically set forth in the Agreement) to complete the Services such that it satisfies the applicable terms, conditions, guarantees, and requirements set forth in the Agreement. Seller shall be fully and solely responsible for quality control in connection with all materials, machinery, equipment, products, supplies, appliances, tools, and articles used in the performance of the Services, except for TerraSlate-Procured Items, if any.
2. TerraSlate-Procured Items. TerraSlate shall procure, or shall cause the procurement of, TerraSlate-Procured Items, if any. Title to TerraSlate-Procured Items shall remain with TerraSlate at all times. Each TerraSlate-Procured Item is provided on an “as is” basis. To the extent permitted under Law, TERRASLATE MAKES NO WARRANTIES HEREUNDER WITH RESPECT TO TerraSlate-Procured Items, EXPRESS OR IMPLIED, AND TerraSlate HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. TerraSlate accordingly agrees not to assert any claim or offset whatsoever against Seller based on design or manufacturing defects of TerraSlate-Procured Items. Risk of loss of TerraSlate-Procured Item shall transfer from TerraSlate to Seller upon delivery of TerraSlate-Procured Item to Seller. Seller shall provide or arrange for the off-loading and handling of TerraSlate-Procured Items. After delivery of TerraSlate-Procured Item to Seller, Seller shall be responsible for competently protecting TerraSlate-Procured Item from damage, modification, vandalism, interference, and risk of loss. In the event of loss or damage to TerraSlate-Procured Item, Seller, at the option of TerraSlate, shall either repair TerraSlate-Procured Item to put it in good condition and working order or replace TerraSlate-Procured Item, with like property of the same or greater quality and functionality.
3. Receiving; Storage. Seller shall provide or arrange for the receiving and storage of Goods and TerraSlate-Procured Items, as applicable, at the Location or off-site at another location agreed to by TerraSlate until the installation thereof.
4.1. Other Personnel. Seller shall provide, or shall cause its suppliers to provide, the personnel required to perform the Services and achieve each Milestone by the applicable Guaranteed Milestone Date. Such Seller’s Personnel shall have had appropriate training and experience in installing and testing Goods at facilities in technology and magnitude similar to the Location. If any Seller’s Personnel speak Spanish in a primary English-speaking Location or English in a primary Spanish-speaking Location, Seller shall ensure that, at all times during the performance of the Services, at least one supervisor present at the Location shall be bilingual in English and Spanish. TerraSlate shall have the right, at all times, to require for just cause that any Seller’s Personnel be removed and replaced by qualified Seller’s Personnel reasonably acceptable to TerraSlate.
4.2. Screening Measures. Seller shall perform employment eligibility and verification checks required by TerraSlate from time to time, a seven-year criminal background check (including checks for felony convictions), and all other screening measures as a reasonably prudent employer in Seller’s position would deem appropriate (collectively, “Screening Measures”) of Seller’s Personnel prior to their performance of Services and shall not permit any Seller Personnel to perform Services if such Screening Measures reveal any information that could reasonably be expected to adversely affect such Seller Personnel’s suitability for the provision of Services. By providing Seller’s Personnel to perform the Services, Seller represents that it has completed Screening Measures and that such Screening Measures did not reveal any information that could adversely affect such Seller’s Personnel’s suitability for employment or engagement by Seller or competence or ability to perform duties under the Agreement. Nothing in this Section shall be interpreted as authorizing or requiring Seller to perform any screening activities that violate the Federal Fair Credit Reporting Act, Title VII of the Civil Rights Act of 1964, or any other Law. Seller shall comply, and shall cause its suppliers to comply, in all respects with all Law related to labor and immigration that may impact the performance of the Services, including the Immigration Reform and Control Act of 1986 and Form I-9 requirements, and shall participate in E-Verify. Seller shall maintain all required employment records until the later of the date that is three years after an employee’s date of hire, or one year following an employee’s termination.
4.3. Alcohol and Drug Program. Seller shall implement an alcohol and drug abuse program for all Seller’s Personnel performing the Services that is consistent with the Policies and shall engage a local company to provide drug screening in accordance with Seller’s policy.
4.4. Non-Discrimination. Each Party shall comply with Law requiring nondiscrimination in employment, and not discriminate against any employee or applicant for employment because of race, color, religion, national origin, ancestry, age, disability, protected veteran status, sex, sexual orientation, or gender identity.
4.5. Payroll Reporting. To the extent required by Law or if requested by TerraSlate, Seller will submit a certified payroll to TerraSlate on a monthly basis for the contracts they have been awarded, and no invoices will be processed without certified payroll reports.
4.6. Cooperation with Other Service Providers. Seller shall cooperate with TerraSlate and other Sellers to coordinate the performance of the Services and the services of other Sellers of TerraSlate, except that Seller shall not be required to delay the performance of the Services for such cooperation.
5. Environment, Health, and Safety at the Location.
5.1. Location. Prior to performing Services at a Location, Seller shall inspect the condition of, the ingress and egress to and from, and TerraSlate’s operations at, the Location. While at a Location, Seller shall, and shall cause Seller’s Personnel to, comply with Policies and Location-specific rules and requirements. Seller voluntarily accepts all hazards and risks that may be presented in the performance of the Services at a Location. TerraSlate assumes no affirmative duties with respect to the safety of Seller’s Personnel. If an accident involving Seller’s Personnel occurs at a Location, Seller shall notify TerraSlate immediately and submit a written accident report to TerraSlate. Seller shall promptly furnish TerraSlate full reports of any accidents involving individuals or property associated with the Services.
5.2. Hazardous Substances. Seller shall not, nor shall it permit Seller’s Personnel to, bring any Hazardous Substance onto the Location or incorporate any Hazardous Substance into the Location, other than Hazardous Substances to be used by Seller or Seller’s Personnel in a manner that does not violate any Law and is consistent with Good Practices. Seller shall minimize the use of Hazardous Substances in the performance of the Services. Before completion of the Services, Seller shall remove from the Location all Hazardous Substances previously brought onto the Location by Seller or Seller’s Personnel, unless the same have been permanently incorporated into the Location in accordance with the Agreement. Seller shall provide written notice of the presence at the Location of Hazardous Substances to TerraSlate and, if required by Law, any Governmental Entities. Seller shall maintain an updated file of all safety data sheets for all Hazardous Substances used in connection with performance of the Services or used by or on behalf of Seller or Seller’s Personnel at the Location and shall deliver an update of such file to TerraSlate prior to the Hazardous Substances being brought to the Location. Seller shall implement and administer a Hazardous Substances handling program for all of Seller’s Personnel that includes guidelines and training with respect to the proper handling, use, and disposal of Hazardous Substances and the development, implementation and enforcement of procedures for notification of TerraSlate and appropriate Governmental Entities about, and clean-up of, spills and other emissions of Hazardous Substances in connection with the performance of the Services.
5.3. Encountering Hazardous Substances at the Location. If Seller or Seller’s Personnel encounters any Hazardous Substances or other hazardous conditions at the Location, Seller shall immediately stop the Services in the area affected and report the condition to TerraSlate. Seller shall not have any liability arising from pre-existing Hazardous Substances at the Location or Hazardous Substances introduced upon the Location by any third party (except any member of Seller Group) other than due to the intentional release thereof by Seller Group or the negligent exacerbation of such Hazardous Substances by Seller Group.
5.4. OSHA. All chemicals, equipment, and materials used in the performance of the Services shall conform to the standards required by Occupational Safety and Health Administration.
6. Obstructions; Interference. Seller will keep all areas in and around where Services are performed free from debris. Except as otherwise provided by the Agreement or otherwise authorized by TerraSlate in writing, Seller will not allow any service, alteration, modification, interference, or other infringement upon the Goods or TerraSlate-Procured Items.
7. Monitoring by TerraSlate. During the performance of the Services, Seller shall permit (and, as applicable, shall cause Seller’s Personnel to permit) TerraSlate and its representatives and engineers to monitor and inspect the Services and the progress of the Services against the Schedule to verify compliance with the Terms and completion of each Milestone. Seller shall give TerraSlate access to the facilities of Seller and its suppliers for inspection of the Services during regular business hours. Seller shall give TerraSlate five business days’ advance notice of the covering of any portion of the Services or the occurrence of a hold point, if any, specified in the Purchase Order. If any portion of the Services is covered or any hold point occurs without notice to TerraSlate, then if requested by TerraSlate, Seller shall uncover such portion of the Services for inspection and recover the Services at Seller’s expense. If during TerraSlate’s monitoring or inspection of the Services, it is discovered that Services or Goods that do not comply with the Terms, Seller shall promptly re-perform the non-complying Services or repair, modify, or replace the non-complying Goods. TerraSlate’s monitoring or inspection (or failure to conduct any monitoring or inspection) of any part of the Services shall in no way relieve Seller of its obligations to perform the Services in accordance with the Agreement, nor be deemed to be a waiver of TerraSlate’s right to subsequently reject defective Services or Goods, or make a warranty claim hereunder.
8. Progress Reports. Seller shall provide progress reports upon request by TerraSlate, but not less frequently than weekly, describing the applicable week’s activities in connection with the Services, any safety incidents, the names of the individuals, and the progress of the Services toward achievement of the Milestones.
9. Standards for Completion. Prior to completion of the Deliverables, (a) the Services must conform to the Terms, (b) Seller must demonstrate to TerraSlate that all portions of the installation Services can legally, safely, and reliably be placed into operation for ten consecutive days at an average capacity meeting the design intent and meeting on average the design recovery guarantee and the Specifications (“Continuous Operation”); (c) the performance tests performed by TerraSlate must demonstrate that the installation Services, as set forth in the Purchase Order (the “Performance Conditions”), are capable of meeting the performance expectations, and (d) all systems interconnected or affected by the installation Services are performing effectively upon completion of the installation Services.
10. Inspection and Tests. Upon receipt thereof, TerraSlate may conduct such investigations and inspections as TerraSlate deems necessary or appropriate to determine if the installation Services are complete. Seller shall make Seller’s Personnel available to TerraSlate to assist TerraSlate in the Startup, Continuous Operation, and performance of the Performance Tests and to correct any defects identified during Startup, Continuous Operation, or the Performance Tests. “Startup” means the process of starting and completing initial operation of the systems, sub-systems pursuant to the procedures for Startup set forth in the applicable Purchase Order or otherwise agreed to between the Parties.
11. Retainage. To the extent permitted by Law, TerraSlate may withhold from each payment to be made pursuant to an invoice the percent of such payment set forth in the Purchase Order as retainage (“Retainage”). The Retainage shall be held by TerraSlate as security for the performance of Seller’s obligations hereunder, and any interest thereon shall accrue for the account of TerraSlate and not Seller. TerraSlate may use the Retainage, among other uses, to cure a Seller event of default, for damages owed by Seller hereunder, for payment of unpaid suppliers of Seller and payments made to remove Liens filed by Seller’s suppliers, for payment of unpaid liquidated damages owed by Seller, and to satisfy any and all other amounts payable to TerraSlate hereunder. Unless otherwise set forth in a Purchase Order, TerraSlate shall pay Seller any remaining unused Retainage with the final payment made pursuant to the applicable Purchase Order.
12. Final Payment. Prior to final payment of the applicable portion of the Services Cost, (a) Seller shall deliver to TerraSlate final waivers of Liens and releases from Seller, its suppliers, and its and their suppliers, (b) all remaining waste materials, rubbish and other debris, (c) all of Seller’s work equipment must be removed in accordance with Law and Good Practices, (d) Seller shall provide to TerraSlate copies of the Seller Permits, all operating manuals for the Goods, a final list and summary prepared by Seller of the Services performed by each supplier, all training manuals, all completion checklists, all design documents (if Seller provided design or engineering Services), and any other close-out documents reasonably requested by TerraSlate.
13. No Waiver of Warranties. None of TerraSlate’s inspection or review of the Services or verification of completion of the Services shall be deemed a waiver of the warranties set forth in the Agreement.