20170421Notice of Affiliate Transaction.pdf

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R. Jeff Richards
Vice President and General Counsel
1407 W. North Temple, Suite 320
Salt Lahe CiO, aT 84116
801-220-17i1 Ollice
j eff . r i c h a r d @1t a ciJi c o rp. c o m
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April2l,2017
Idaho Public Utilities Commission
472West Washington
Boise,ID 83702-5983
Attention: Diane Hanian
Commission Secretary
PacifiCorp Notice of Affiliate Transaction
Case No. PAC-E-05-8
Dear Ms. Hanian:
This letter will serve as notice pursuant to Commitmentl l7(2), incorporated in the
Idaho Public Utilities Commission OrderNo.29973 issued February 13,2006, as supplemented
by Order No. 29998 March 14,2006, in the above-referenced proceeding, approving the
acquisition of PacifiCorp by MidAmerican Energy Holdings Company (now Berkshire
Hathaway Energy Company or BHE), of ongoing ordinary course affiliate interest transactions
with Marmon Water Inc. dba Amarillo Gear Company LLC (Amarillo). Specifically, the
Company intends to purchase Amarillo oil filtration carts and filters for use at its Lake Side
facility (Equipment) from time to time. The parties intend to purchase the Equipment under a
purchase order containing PacifiCorp's standard terms and conditions (Purchase Order). A copy
of a Purchase Order for one such transaction is included as Attachment A.
PacifiCorp is a wholly-owned, indirect subsidiary of Berkshire Hathaway Energy Company
(BHE). BHE is a subsidiary of Berkshire Hathaway, Inc. (Berkshire Hathaway). Berkshire
currently holds a majority interest in The Marmon Group (Marmon). Marmon comprises four
autonomous companies consisting of 15 diverse stand-alone business sectors, and about 185
independent manufacturing and service businesses. Amarillo is part of one of the four such
autonomous companies, Marmon Food, Beverage & Water Technologies Company. Therefore,
Berkshire Hathaway's ownership interest in Marmon creates an affiliated interest between
PacifiCorp and Amarillo in some PacifiCorp jurisdictions.
Amarillo is the original manufacturer of all of the gear boxes used on the block one and block
two cooling towers at PacifiCorp's Lake Side facility. PacifiCorp determined that purchasing the
Equipment and subsequent replacement Equipment from Amarillo from time to time is more
cost-effective than procuring similar equipment from another source. The oil filtration cart is
designed specifically for the use with the Amarillo gear boxes, and is designed for the
appropriate flow rates, pressure considerations, and volumetric considerations associated with
these gear boxes. The filter is designed to address the typical amount of contamination
associated with Amarillo gear boxes, which minimizes the need for additional filtration and
Re
Diane Hanian
Notice of Affiliate Transaction
April2l,2017
maximizes the useful life of the gear boxes. The use of Amarillo Equipment minimizes the
initial purchase costs and the day to day operational cost. The value of the Equipment to be
purchased under this Purchase Order is approximately $17,560.
The Purchase Order was prepared in accordance with PacifiCorp's procurement policies and
procedures and contains standard commercial terms and conditions to protect the Company's
ability to provide safe and reliable service. Thus, the use of Amarillo as supplier of the
Equipment under the Purchase Order will not harm the public interest.
Please do not hesitate to contact me if you have any questions.
Best Regards,
R. Jeff
Vice President and General Counsel
PacifiCorp
Enclosures
IDAHO AFFILIATED INTEREST FILING
ATTACHMENT A
AGREEMENT
\PacrnConp Page 1 of 10
0410612017 11:05:12
version 1P acif iCorp P roc u rement
825 NE Multnomah Street, Suite 1800
Poftland, Oregon 97232 Purchase Order
Shippinq Address
PacifiCorp
Lake Side
1825 N Pioneer Lane
VINEYARD UT UM2
Vendor Address
MARMON WATER INC
dba AMARILLO GEAR COMPANY LLC
2401 SUNDO\^N LANE
AMARILLO D( 79118
Attention: MICHAEIL CARA
Vendor Phone: [phone]
VendorFax: [phone]
Billinq Address
PacifiCorp
Accounts Payable Department
P.O. Box 3Ol0
Portland, OR 97208 - 3040
when an altemative Billing Address b prefened, it will
be noted below.
Information
P.O. Number 4500E36913
Date 0410412017
Vendor No. 149764
Payment Terms Description NET 30
Buyer
Phone
Fax
Delivery Date
lnco Terms Description
lnco Terms (Part X)
Justin Swenson
[phone]
(43s) 623-380s
06t02t2017
FOB Origin Collect
SEE SHIPPING INSTRUCTIONS
Show the Purchase Order Number on all packages, invoices, bills
of lading and correspondence. Send invoices to Accounts Payable
Department. Notify buyer immediately: (1) if unable to ship or
deliver on dates specified below or (2) when description is incorrecl
or superceded. Any refund checks must be sent to the following
address and not to individual employees.
PacifiCorp
PO Box 5504
Portland, OR 97208-5504
*.*SPECIAL NOTE""*
PLEASE CONFIRM RECEIPT OF THIS PURCHASE ORDER BY PROVIDING A RETURN ACKNO\A/I-EDGEMENT TO JUSTIN S\A'ENSON 435623.3805
or Email: justin.swenson@pacifi corp.com
PLEASE REFERENCE OUR PACIFICORP PO# ON ALL CORRESPONDENCE
VENDOR NOTE THE DELIVERY DATE IS CRITICAL - PLEASE DELIVER THE MATERIAL ON OR BEFORE THE DELIVERY DATE SPECIFIED ON
THIS PURCHASE ORDER.
THANK YOU
PLEASE PROVIDE YOUR
rt..fifir*rfi.nr*.tnrftnrfi.nfirtn.fir€$r.*r.fts*$**INcluDE PURCHASE ORDER NUMBER ON ALL PAPERWORK.
Shipping lnstructions:
Currency: USD
Item Material/Description Quantity UM Net Price Per UM Net Amount
10 2.00 EA
GSU 110-2.0MBL Oil Filtration Cart
7,800.00 1EA 15,600.00
1EA 1,960.0020
GSU 110-2.0MBL Spare Filter
4.00 EA 490.00
Total Net Value usD 17,560.00
XPAcTFtCoRP 4500836913 Datdo4,lMl2017 Page 2 of 10
C4,1ffi12017 11:05:'12
PacltiCup Procuremerrt
825 NE Multnomah Stee4 9ufte 1800
Pordand, aregon 97232 Purchase Order
Vondor 3h.[ tumbh the Goods tnd Serylces speclfed ebove ln accordance wlth thb Purchere Order, lncludlng tlr prcvblom ret fortr on the
itco hercof and eny otkr ptoylllom attachod b, lncorponted Inb, or otheni*le mede e part ol thls Purchae ()l&r.
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PACIFICORP PURCHASE ORDER
TERMS & CONDITIONS
(Rev. August 2016)
The terms and conditions issued with this purchase order shall be null and void in the circumstance where PacifiCorp and the Party to whom this purchase order is
issued have a valid written agreement (duly executed by the authorized representatives of both parties) to which the items in this purchase order are identified.
1. DEFINITIONS.
Supplier means the party identified as the vendor on the face of this Purchase Order. Company means PacifiCorp or any afiiliates or subsidiaries whether direct or
indirec{ acting through the business unit specified on the face of this Purchase Order. Contracl means the Purchase Order of which these terms and conditions are a
part ("Purchase Orde/'), all documents incorporated by reference under the Purchase Order, these terms and conditions themselves Wth any confidentiali$ or
non-disclosure agreement executed by Company and Supplier, and all exhibits and amendments to all such documents. "ltems" mean any goods or services to be
provided or performed by Supplier under the Contract as defined above. "Price" means the consideration to be paid by Company to Supplier under the Contract for
the ltems. The Price shall be exclusive of all taxes to be borne by Company arising out of Supplie/s performance hereunder, including without limitation sales, use,
unless specifically stated otheMise. Local sales and use taxes in all states shall be paid by Supplier and invoiced as a separate line item. The Supplier is
responsible for all import or export duties and value-added taxes related to these units and all applicable parts.
2. BLANKETORDER.
lf the Purchase Order is designated by Company as a blanket order, Company shall be obligated to purchase only those quantities of ltems which it specifically
requests under release orders issued by Company to Supplier.
3. ACCEPTANCEOFORDER.
This Purchase Order for ltems shall be accepted by Supplier upon receipt of the Purchase Order. Any timely commencement of Supplie/s performance hereunder
shall also be deemed to be an expression of Suppliefs acceptance of this Order including these Terms and Conditions. No modification, alteration, or exception
made by Supplier to the terms of this Contract shall be a part of this Purchase Order unless agreed to in a writing executed by the authorized representatives of both
parties.
4, PRICE.
The Price shall be as stated in the Purchase Order unless such price exceeds the lowest price at which Supplier is selling ltems or similar items to its other
customers as of the date of delivery to Company, in which case the lower price shall control. lf there is no price stated in the Purchase Order, the Price shall not be
higher than the most cunent charged or quoted Price to Company for such ltems by Supplier. lf there has been no previous charge or quotation by Supplier to
Company for llems and if no price is set forth in the Purchase Order, Company shall have the right to retum the ltems. Supplier shall pay the cost of return
transportation if Supplier charges a price wtrich is in excess of the lowest price at which Supplier is selling ltems lo its other customers as of the date of delivery to
Company. lf prior to delivery of the ltems, Company is able to purchase a portion or all of the ltems, or similar items of like quality, at a price which is less than the
Price, Company shall notiry Supplier. Should Supplier fail to meet such lower price, Company may, at its option, purchase from the other source at the lower price,
and in that event Company and Supplier shall be relieved of their obligations under the Conhact in respect of that portion of the ltems purchased from the other
source.
5. ACCOUNTING AND AUDITING.
Supplier shall keep accurate and complete accounting records in support of all cost billings to Company in accordance with generally accepted accounting principles.
Company or its audit representative shall have the right at any reasonable time or times to examine, audit, and reproduce the records, vouchers, and their source
documents which serve as the basis for compensation other than compensation which is fixed in amount by this Contract. Such documents shall be available for
examination, audit, and reproduction for three (3) years afler completion or termination of this Contract. All results of these audits shall be kept confidential between
the two parties and their agents. Supplier shall assist Company with preparing necessary audit material and will allow Company to review any work papers prepared
by independent auditors as allowed by professional standards. Any over-collections shall be returned within thirty (30) days from date of notice of overcharge. Audit
findings will be considered to be final for the period audited.
6. CREDIT REQUIREMENTS.
Supplier shall meet the requirements of any one or more of clause (i), clause (ii) or clause (iii) below: (i) Supplier maintains a senior unsecured debt rating from
Standard & Poofs of BBB- or better; (ii) if Supplier has no debt rating, Supplier meets ALL of the following credit standards: a) tangible net worth equal to ten times
the projected maximum exposure under this Contract, b) no change in the condition of its eamings, net worth, or working capital over the last 24 months which would
reasonably be anticipated to impair the Supplie/s ability to meet its obligations under this Contract, and c) Supplier is not in default under any of its other agreements
and is current on all of its financial obligations, or (iii) Supplier shall post security reasonably satisfactory to Company. lf requested by Company, Supplier shall
within thirty (30) days provide Company with copies of its most recent annual and quarterly financial statements prepared in accordance with generally accepted
accounting principles.
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7. UNIFORM COMMERCIAL CODE.
The Uniform Commercial Code as adopted by the State in which the ltems are delivered shall govem this Purchase Order, except as modified herein
8. DRAWNGS-SPECIFICATIONS-PROPRIETARY INFORMATION.CONFIDENTIALIW-ADVERTISING.
Supplier shall be fully and solely responsible for obtaining product data adequate to design, manufacture, fabricate, construct and deliver ltems in compliance with
all requirements of the Contract. Company shall retain all rights to all such documents it provides or causes to be provided to Supplier. Supplier shall consider all
such documents to be confidential. Upon Company's request, Supplier shall promptly return to Company all such documents and copies thereof. Supplier shall not
advertise or publish the fact the Company has contracted to purchase ltems from Supplier, nor shall any information relating to the Purchase Order be disclosed
without Company's prior written permission. Unless otheMise agreed in writing, no commercial, financial, or technical information disclosed in any manner or at
any time by Supplier to Company shall be deemed secret or confidential.
9. DELIVERY.
The Supplier shall deliver ltems to Company on the date(s) indicated in the Purchase Order. lf Supplier fails to make delivery of any part of the ltems on the date(s)
indicated, the Company may terminate and pursue olher remedies. All shipments shall be delivered F.O.B. to the destination designated by Company in the
Purchase Order, and risk of loss shall remain with Supplier until the ltems are received by Company, its agent or consignee regardless of whether Company has
made full payment for the items. A packing slip must accompany each such shipment, and if a shipment is to a consignee or agent of Company, a copy of the
packing slip shall be forwarded concurrently to Company. lf no such packing slip is sent, the count or weight determined by Company or its agent or consignee
shall be final and binding on the other parties. Supplier, or the canier it uses to transport ltems, whichever is applicable, shall (a) maintain a "satisfactory" safety
rating from the U.S. Department of Transportation and shall provide Company with wriften proof of such rating on request if the carrier is a motor carrier, and (b)
maintain the insurance coverages and policy amounts required by Section 20, unless a larger amount is required by any federal, state, or local regulatory agency,
in which event such larger amount shall be maintained.
10. WARRANry.
Supplier warrants that for a period of two years after the delivery of or performance of the ltems, the ltems will (a) be of merchantable quality; (b) be fit for the
Company's specified purposes; (c) be of high quality, and be free from defects in material and workmanship; (d) comply with the most stringent of Company's or
Supplie/s specifications, performance guarantees and requirements; and (e) comply with all nationally recognized codes and established industry standards. All
Items shall be sold by Supplier to Company free and clear of any liens and encumbrances. Supplier's wananties and guarantees shall survive inspection, delivery,
and acceptance of the ltems and/or payment by Company. lf the ltems do not conform to any of these warranties then, at Company's option, Supplier shall repair or
replace the defective ltems, F.O.B. Company's designated site at Suppliefs expense, or in the case of services, re-perform the services at Supplie/s expense.
Supplier shall be responsible for all expenses and damages which Company incurs, including, but not limited to, incidental and consequential damages. The
foregoing warranties and obligations shall also apply to the ltems supplied by Supplier in such repair, replacement, or performance. Supplier shall immediately
transfer to Company the benefit of any manufacturefs wananties.
1'1. RESTOCKING FEE.
ln the event that Supplier supplies incorrect or defective llems or fails to deliver ltems on or before the delivery date, or this order is terminated for cause, Company
shall have no obligation to pay restocking or similar fees to Supplier. Moreover, in no event shall Company be required to pay restocking or similar fees to Supplier
unless a mutually acceptable fee is agreed to in a writing executed by the authorized representatives of both parties.
,12. CHANGES.
Company shall have the right to make changes (including additions and/or omissions) tom time to time in the ltems, any specifications and/or drawings which are a
part of the Contract. Company shall give Supplier written notice of any such change. Any claims by Supplier for adjustments in price or delivery terms after its
receipt of Company's change order must be asserted in writing to Company not more than ten (10) days after such receipt by Supplier, or such claim shall be
deemed to have been waived.
,I3. PAYMENTS AND INVOICES.
Unless otheMise specified in the Purchase Order or in a separate written instrument signed by Company, no invoice shall be issued by the Supplier prior to the
shipment or performance of the ltems, and no payment shall be made prior to receipt of such ltems and approval of an invoice for such ltems. Company may
withholcl any payment otheMise due under the Contract to the extent necessary to offset any claim Company may have or assert against Supplier.
14, INSPECTION AND PRE-WARRANTY PERIOD DEFECTS.
Company may inspect any ltems ordered hereunder during their manufacture, construction or preparation at reasonable times and shall have the right to inspect
such ltems at the time of their delivery and/or completion. ltems furnished hereunder may at any time prior to the beginning of the wananty period stated above in
Section 10 be rejected fordefec{s revealed by inspec{ion or analysis even though such ltems may have previously been inspected and accepted. Such rejected
Items may, at Company's option, be retumed to Supplier for full refund to Company, including removal, shipping and transportation charges.
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15. PATENT, TRADE SECRET, AND COPYRIGHT INFRINGEMENT.
Supplier shall settle or defend, at its sole expense and shall indemnify and save Company harmless from any costs, expenses, losses, and damages resulting from
any claims, suits, or proceedings brought against Company \ ihich are based upon a claim that the ltems, or any part thereof infringe on any patent, trade secret or
copyright in case the ltems or any part thereof furnished hereunder constitute infringement. Supplier shall, at its sole expense and at its option (1) procure for
Company the right to continue using the goods or part thereof; (2) replace the same Wth substantially equal but non-infringing ltems, (3) modiry the ltems so as to
become non-infringing; or (4) upon written approval of Company, remove the ltems at Supplie/s sole expense and refund the Purchase price and the transporlation,
installation, and removal costs thereof.
16. COMPLIANCE WITH LAWS AND REGULATIONS.
Supplier warranE that al! goods, aervlces and labor provided pursuant to thls Purchase Order have been provlded in compliance with all applicable
laws and rpgulatlons, and all applacable executive, iudlcial and administrative orderB, as each may be appllcable to the work performed hereunder, and
based on total antlclpated dollar value of this Purchase Order. Without limitlng the generallty of the foregoing, Supplier specifically warants its
compliance with the Foreign Corrupt Practlces Act and the United Kingdom Bribery Act 2010. Suppller and any subcontractors shall also abide by the
requirements of 4l CFR gS 60.1.4(a), 60-300.5(a) and 60-741.5(a). These regulatlons prohlblt dlscrlmlnatlon against qualified individuals based on thelr
status as protected voterans or lndlvlduals wlth disabllities, and prohiblt discrlmination agalnst all indivlduals based on their race, color, religion, sex,
sexual orientation, gender identity or national orlgin. Moreover, these regulatlons requlre that covered prlme contractoB and subcontractors tako
afflrmatlve actlon to employ and advance ln employment individuals without regard to race, color, rcligion, sex, sexual orientation, gender identity,
national orlgln, protected veteran status or dlsability. Supplier and any subcontractors shall also abide by the requirements of Executive OJdet1.1246,
as amended, to develop and implement a written affirmative action program (AAP) and Executlve Orders 11625 and '13170 (utlllzation of disadvantaged
buslness enterp.ises) and the Small Busin€s Act To the extent appllcable, the omployee notice roquaroments set forth in 29 CFR Paft471, Appendlx A
to Subpail A, are hereby lncorporated by reference into this Purchase Order,
17. CONFLICT MINERALS.
Supplier shall provide to Company information on the content of products, manufactured or contracted to be manufactured by Supplier for Company, that utilize or
provided in a form that will allow Company to veriry compliance wilh Sec{ion 1502 of the Dodd-Frank Act (the U.S. Conflict Minerals Law) and will include evidence
of the origin or souroes of the conflict minerals. The information will be submitted at or prior to the time of delivery of products in a form approved and/or designated
by Company from time to time. Supplier shall obtain Company's prior written consent before providing any products to Company that include conflict minerals
originated from the Democratic Republic of Congo or the nine adjoining conflict countries; Angola, Burundi, Central Atrican Republic, the Republic of the Congo,
Rwanda, South Sudan, Tanzania, Uganda, and Zambia. Supplier shall maintain effective accounting procedures, internal controls and audit procedures necessary
to record the country and place of origin of all minerals included in products provided to Company, and to veri! compliance with this Section. Company shall be
permitted to audit such records as reasonably necessary to confirm Supplier's compliance with this Section. Supplier shall indemniff and hold Company harmless
for all fines, penalties, expenses or other losses sustained by Company as a result of Supplier's breach of this Section.
18. LIENS.
Supplier hereby waives its rights to any mechanic's lien or other lien under any applicable statutes or otheMise for all ltems furnished in connection with the
Contract. Prior to Supplie/s receipt of each payment under the Contract, Supplier shall deliver to Company all affidavits, lien releases, materialmen's certificates
and other documents required by Company under the applicable lien laws. lf at any time there shall be evidence of the existence of any such lien or claim for work
done or ltems, materials, services or equipment furnished by Supplier or any other party in connection with the Contract, the Company may use money then due or
to become due under the Contract to discharge such lien or satis! such claim and may credit such amounts against the amounts due or to become due to the
Supplier.
19. INDEMNITY.
Supplier shall indemniff and hold Company and its employees, directors, ofiicers and agenls harmless from and against all expenses, costs, charges, damages,
claims, suits, losses, fines, penalties or liabilities (including attomey's fees) of every kind whatsoever by reason of, arising out of, or in any way connected with
accidents, occurren@s, injuries, or losses to, or of any person, or property including, without limitation thereto, loss of use of property, which may occur before or
afler delivery of the completed ltems to Company, or resulting from, in whole, or in part, the sale, design, preparation, manufacture, fabrication, construction,
completion, transportation, delivery, failure to deliver, and/or installation of the items and/or services, excluding only such as are caused by the sole negligence of
Company, but not excluding situations where the Company's negligence consists of failure to discover a condition caused or permitted to exist by the Supplier or
any of its subcontractors. lf Supplier is not responsible for any installation or services or supervision related to installation under the Contract, Supplier shall have no
liability under this Section 19 for any of the above resulting entirely from acts or omissions in the performance of such installation. Supplier, in any indemnification
claim hereunder, hereby expressly and without reservation waives any defense or immunity it may have under any applicable Worke/s Compensation laws or any
other statute or judicial decision, disallowing or limiting such indemnification where an employee of Supplier makes a claim against any indemnitee herein, and
Supplier consents to a cause of action for indemnity.
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20. INSURANCE.
Supplier shall take out and maintain with a canier or carriers having an A.M. Best lnsurance Reports rating of A-:Vll or better the following minimum insurance
coverage at its expense for the duration of the Contract (including all warranty periods thereundeQ covering all of Supplieis obligations under the Contract: (a)
Workers Compensation - comply with all applicable workers' compensation laws and furnish proof thereof satisfactory to Company prior to commencing work or
seMces. lf work or seMces is to be performed in Washington or \Arloming, Supplier will participate in the appropriate stale fund(s) to cover all eligible employees
and provide a stop gap (employe/s liability) endorsement (b) Fmployer's Liability - limits not less than $1,000,000 each accident, $1 ,000,000 disease each
employee, and $1,000,000 disease policy limit (c) Commercial General Liability - with a minimum single event limit of $1 ,000,000 per occurrence/$2,000,000
general aggregate to protect against and from all loss by reason of injury to persons or damage to third party property, including Supplie/s employees and all third
persons, and property of all third parties based upon and arising out of the negligent acts or omissions of the Supplier's operations hereunder, including the
operations of its subcontrac{ors of any tier; (d) Professional Liability - covering damages arising out of negligent acts, errors, or omissions committed by Supplier in
the performance of the work or services provided under the Contract, with a liability limit of not less than $1,000,000 each claim. Supplier shall maintain this policy
for a minimum of two (2) years afrer completion of the work or services or shall arrange for a two year extended discovery (tail) provision if the policy is not renewed.
The intent of this policy is to provide coverage for claims arising out of the performance of work or servi@s under this Contract and caused by any error, omission,
breach or negligent act for which the Supplier is held liable; (e) Business Automobile Liability - with a minimum single limit of $1,000,000 for bodily injury and
property damage with respect to Supplier's vehicles whether owned, hired or non-owned, assigned to or used in the performance of the work; and (0 Umbrella
Eabjli!. - with a minimum limit of $5,000,000 each occunence/aggregate where applicable to be excess of the coverages and limits required in Employers' Liability
insurance, Commercial General Liability insurance and Business Automobile Liability insurance above. lnsurance coverage provided on a "claims-made basis" shall
be kept in effect for the longer of two years from the date of Company's initial commercial use of the ltems and for such other length of time necessary to cover
liabilities arising out of the work or services provided under the Contract. All policies required by this Contract shall include provisions that such insurance is primary
insuran@ with respect to the interests of Company and that any other insurance maintained by Company (including self insurance) is excess and not contributory
insurance with the insurance required hereunder. All required insurance policies shall not contain any provisions prohibiting waivers of subrogation. None of the
above insurance coverage shall be cancelable except upon thirty (30) days prior written notice to the Company and to all other insured parties, and Supplier shall
provide Company with a copy of any such cancellation notice immediately afier Supplie/s receipt of it. Supplier shall include Company as an additional insured on
all liability insurance. lf Supplier is subject to any no fault insuran@ requirements, it shall adhere to all applicable laws and regulations pertaining to such no fault
insurance. ln addition to the provisions of Section 19 above, in the event of a lawsuit or claim by an employee of Supplier or of any of its subcontractors against
Company, or any of Company's agents, officers, directors, or employees for any injury (including, but not limited to death) or disease arising out of, related to, or
claimed to have risen out of, or to have been related to the employee's employment in the performance of the Contract, Supplier, on behalf of itself and its Workers'
Compensation carrier, hereby transGrs and assigns to Company and shall cause each of its subcontractors to transfer and assign to Company any and all liens or
subrogation rights that it or their insurers may have for Workers' Compensation benefits paid to the employee. On Company's request, Supplier shall provide
ceffficates of insurance and renewals evidencing insurance.
21, TERMINATION, SUSPENSION OR DELAY.
Company shall have the right at any time to terminate, suspend, or delay the Contract in whole or in parl by prior written notice to Supplier. lmmediately after receipt
of such notice, Supplier shall stop all performance hereunder except as may otheruise be directed by Company. ln the case of termination of the Contract, Supplier
shall then transfer to Company, in accordance with Company's directions, and whether located on the job site, in a vendor's or manufacture/s facility or elsewhere,
all materials and all information accumulated, specifically prepared or acquired by Supplier for use in relation to the design, development, manufacture, assembly,
shipment, installation, operation, maintenance or repair of the ltems and all supplies, shop drawings, work in process, equipment, machinery or parts prepared,
acquired or used by the Supplier in connection with such ltems and for which the Supplier is to be reimbursed hereunder, and all working drawings, sketches,
specifications, and other information accumulated, prepared or acquired by Supplier with respect to such ltems. The Supplier shall, if directed by the Company and
to the e)dent stated in the notice of termination, suspension or delay, make all efforts necessary to preserve the work in progress and to protect the ltems whether
still at Supplier's manufacturing facilities or in transit to Company's facilities. lf Supplier is not then in default in the performance of any of its obligations hereunder,
and if Supplier has taken reasonable steps to mitigate its damages resulting from such termination, Company shall pay to Supplier, as Supplie/s sole and exclusive
remedy for termination under this Section 2'1, to the extenl not already paid to Supplier an amount equal to: (a) reasonable and documented costs incurred by
Supplier in accordance with the Contract prior to Suppliers' receipt of notice of termination, plus, (b) the reasonable and documented costs and charges incurred by
Supplier in winding up its activities under the Contracl prior to the effective termination date, provided, however, that the amounts listed in (a) and (b) of this Section
21 plus prior payments to Supplier shall in no event exceed the Contract Price. lf the suspension or delay is not followed by a termination of the Contract, Company
shall have no obligation or make any payments to Supplier after the effective date of the suspension or delay other than, to the extent not already paid to Supplier,
Supplie/s reasonable and documented costs incurred in accordance with the Contract prior to such effective date which are not reduced or eliminated by
appropriate mitigative action by Supplier. Before Company resumes performance under the Contract following such suspension or delay, Supplier and Company
shall negotiate in good faith on the adjustments, if any, which may be required in payments to Supplier or in the Contract Price to avoid inequities eilher to Supplier
or Company.
22. DEFAULT.
lf the Supplier: (a) becomes insolvent; (b) files a petition under any chapter of the bankruptry laws or is the subject of an involuntary petition; (c) makes a general
assignment for the benefit of its creditors; (d) has a receiver appointed; (e) should fail to make prompt payment to any subcontractors or suppliers; or (D fails to
comply with any of its material obligations under the Contract, the Company may, in addition to its rights under Section 13 above, at its option either cure the default
at Supplie/s expense or terminate the Contract after first giving Supplier three (3) days written notice to cure such default. lmmediately after such termination,
Company may; (i) take possession of the ltems wherever they may be located and in whatever state of completion they may be together with all drawings and other
information necessary to enable Company to have the ltems completed, installed, operated, maintained and/or repaired; (ii) pay to Supplier any amount then due
under the Contract after taking full credit for any offsets to which Company may be entitled; (iii) contract with or employ any other party or parties to finish the ltems;
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and (iv) colled fom the Supplier any additional expense, losses or damage which Company may suffer
23. WORK ON PREMISES.
Before Supplier provides any services or work on Company's premises, Supplier will examine the premises and any specifications or other documents furnished in
connection with the ltems and satisry itself as to the condition of the premises and site. No allowance shall be made in respect of any error as to any of the
foregoing on the part of Supplier. Supplier shall at all times keep the premises free from accumulations of waste material or rubbish. At the completion of installation
of the ltems, Supplier shall leave the premises and the ltems broom-clean.
24. SUPPLIER'S PERSONNEUDRUGS, ALCOHOL, AND FIREARMS.
Supplier shall employ in the performance of the work only persons properly qualified for the same. Supplier shall at all times enforce slrict discipline and good order
among its employees and the employees of any sub-Supplier of any tier. Supplier shall not permit or suffer the introduction or use of any firearms, illegal drugs, or
intoxicating liquor upon the work under this Contract, or upon any of the grounds occupied or conkolled by Supplier. Supplier shall immediately remove from the
work any person found to be in violation of the above restriction and such person shall not again be employed in the performance of the work herein without the
express written consent of Company.
25. CRIMINAL BACKGROUND CHECK, IDENTIWVERIFICATION AND RELATED SCREENING.
lf requested by the Company, the Supplier shall conduct, at Supplie/s cost and expense, criminal background checks for the current and past countries of
residence on all employees, agents, subcontractors or independent contractors and the employees, agents or representatives of subcontractors or independent
contractors, that have electronic or physical access to work or Company site. At a minimum, a social security number verification and seven-year criminal
background check, including felony or misdemeanor convictions involving: (a) violence to persons/property; (b) thefi/fraud; (c) drug/alcohol; or (d) traffic/other are
required. Employment history, education verification, and professional certifications may also be required by the Company. All background checks will be
conducted in accordance with federal, state, provincial, and local laws, and subject to existing collective bargaining unit agreements or other agreements, if any.
Supplier shall not allow persons who have not met the Company's criteria to perform work, unless Supplier has received assent from Company. Supplier shall
supply a certification that meets Company's criteria for each Supplier employee, agent or representative and for employees, agents or representatives of any
subcontractor or independent contractor employed by Supplier. Supplier shall ensure that employees, agents, subcontractors or independent contrac'tors and the
employees of subcontractors or independent contraclors sign an appropriate authorization form prior to criminal background checks being conducted,
acknowledging the background check is being conducted and authorizing the information obtained to be provided to Company.
Supplier shall have and ensure compliance with a substance abuse/drug and alcohol policy that complies with all applicable federal, state and/or local statutes or
regulations. ln addition, if requesled by Company, Supplier shall ensure a drug test, at Supplie/s cost and expense, for all employees, agents, subcontractors or
independent contractors and the employees, agents or representatives of subcontractors or independent contractors, that have electronic or physical access to
work or Company site has been completed prior to assignment at Company. Such drug test shall be a five (5) Panel Drug Test, which should be recognizable at
testing labs as a "SamHSAs panel at 50NG - THC cut-off'.
Certification of assigned worker compliance with the criminal background check and the drug test shall be submitted to Company as described in the Company
Criteria form. For any assigned worker who has had a recent background check or drug test, then "recent" shall be defined as less than six (6) months prior to the
assignment date. Such recent background check or drug test shall be documented per the previous paragraph. Supplier shall ensure Department of Transportation
compliance, including but not limited to valid drivers license, equipment inspections, hours of service and all appropriate documentation for any assigned worker
wlro may drive while on assignment to Company. Supplier warrants that Supplier, its employees, agents, Subcontractors or independent contractors and the
employees of Subcontractors or independent contractors have met the Company's criteria or received assent fiom the Company and are in compliance with
Supplier's substance abuse/drug and alcohol policy. lt is understood and agreed that Company may review Supplier's policies, background checks and related
documentation upon request, subject to applicable federal, state and/or local statutes or regulations. Company may also request that Supplier provide an ongoing
and updated list of persons that have been denied access to Company work or site.
26. BUSINESS ETHICS.
Supplier, its employees, agents, representatives and Subcontractors shall at all times maintain the highest ethical standards and avoid conflicts of interest in the
conduct of work for the Company.
27, INDEPENDENTCONTRACTOR.
Supplier is acting as an independent contractor, and the manner and means of conduding the work which is a part of the ltems will be under Supplier's sole control
subject to compliance with all of the terms of the Contract and to the continuing right of inspection by Company's representatives. Supplier shall fully comply with all
applicable employer and liability laws and Worke/s Compensation acts of each state or political subdivision in which the ltems are to be constructed or located.
28. NON-WAIVER.
The failure of Company to insist upon strict performance of any of the provision of the Contract or to exercise any rights or remedies provided thereunder, or
Company's delay in the exercise of any such rights or remedies, shall not release Supplier from any of its responsibilities or obligations imposed by law or by this
Purchase Order and shall not be deemed a waiver of any right of Company to insist upon strict performance of this Contract.
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29. ASSIGNMENT.
Supplier may not assign the Contract or any right thereunder without the prior wriften consent of Company and any assignment without such consent shall be void
Company may assign the Contract to any of its parent, divisions, aff liates, or subsidiary companies that agree to be bound by the terms and conditions, and
applicable appendices or exhibits set fo(h herein.
30. ENTIREAGREEMENT.
The Contract sets forth the entire agreement between Supplier and Company on the subjects covered herein. No terms, conditions, understanding or agreement
purporting to modiry or vary the terms of the Contract shall be binding unless made in writing and acknowledged by Supplier and Company. Any terms and
conditions any other purchase order, release order, acknowledgment, invoice or other form issued by Supplier which conflicts in any way with the terms and
conditions of this Contract are superseded by this Contract.
31, SEVERABILIW.
ln the event that any words, phrase, clause, sentence or other provision of the Contract shall violate any applicable statute, ordinance or rule of law in any
jurisdiction in which it is used, such provision shall be ineffective to the extent of such violation without invalidating any other provision of the Contract.
32. GOVERNING LAW
Except where Company's job site is located in a state other than the State where the goods are received and its laws with respect to mechanics liens, workers'
compensation and other employer-employee relations matters and/or local taxation otherwise require, the Contract and all the performance thereunder shall be
governed by and construed in accordance with the laws of the State where the goods are received. The parties agree that the United Nations Convention on
Contracts for the lnternational sale of goods shall not apply to this Contract. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES
HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR
IN CONNECTION WTH THIS AGREEMENT. EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS
BEEN WAIVED WTH ANY OTHER ACTION IN \A/I-IICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
33. FORUM.
The local, state and federal courts having jurisdiction over the location where the ltems are to be used by Company shall have exclusive jurisdiction over all litigation
related to the Contract.
Y. ALLOCATION.
ln the event of a partial failure of Supplie/s sources of supply, Supplier will first meet all of Company's requirements hereunder prior to any allocation among other
customers.
35. CYBER SECURITY.
I. OBJECTIVE AND SCOPE OF THIS SECTION
Managing supply chain cyber security risk requires Company's contractors and suppliers to meet minimum obligations to maintain the integrity of Company's
of this Section) (and its Personnel and Subcontractors) that may store, process, or have access to Company's information systems, networks, services, or
applications, and may impact the integrity, availability, or confidentiality of Company's Confidential lnformation or systems for the term of the Contract.
II. DEFINED TERMS
"Confidential lnformation" shall have the meaning as defined in the Contract and in addition include any information that identifies an individual or customer of
Company, including but not limited to customer account numbers, customer addresses, customer energy usage information, credit or bank account numbers, social
security numbers, passport or drive/s license numbers, or any information not otheMise classified as public information by Company.
"Data" shall mean any information, formulae, algorithms, or other content that the Company or the Company's employees, agents and end users upload, create or
modify using any softrrvare provided pursuant to the Contract. Data also includes user identification information and metadata which may contain Data or from which
the Company's Data may be ascertainable.
"Security Breach" shall mean any act or omission that compromises either the security, confidentiality, or integrity of Company's Confidential lnformation, Data,
systems and facilities or Company's physical, technical, administrative or organizational safeguards and controls relating to the protection of Company's
Confidential lnformation, Data, systems, and facilities.
Any capitalized terms not otherwise defined herein shall have the meaning in the Contract.
III. COMPLIANCE WTH INDUSTRY BEST PRACTICES AND STANDARDS
\Mthout limiting Contracto/s obligations elsewhere in this Section or the Contract, Contractor shall implement baseline security safeguards and controls to protect
Company's Confidential lnformation, Data, and systems that are no less rigorous than accepted industry practices, specifically those set forth in the latest published
version of (i) National lnstitute of Standards and Technology Special Publication 800-53, Recommended Security Controls for Federal lnformation Systems or (ii)
ISO 27001-lnformation Security Management.
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IV. INFORMATION AND SYSTEMS SECURITY PROGRAM
(a) Confidential lnformation. Contractor represents and warrants that its collection, access, use, storage, disposal, and disclosure of Company's Confidential
lnformation and Data does and will comply with all applicable federal and state privacy and data protection laws, regulations, and directives. Contractor's
safeguards shall include limiting access to Company systems and Confidential lnformation to Contractofs Personnel who have a "need to knoW'or otherwise
access Company's systems and Confidential lnformation to enable Contractor to perform Work or Services under the Contract. Section s of the Contract,
conceming (i) Contractor's Personnel and their access to Company's facilities and (ii) the handling of Confidential lnformation, respectively, shall apply to this
Section as applicable. These provisions included herein apply to all Subcontractors to the extent and during such periods as they are in possession of Confidential
lnformation or Data.
(b) Data and lnformation Security Program. Contractor shall develop a data and information security program that documents the policies, standards, and controls in
use, including organizational, administrative, technical, and physical safeguards and standards. The data and information security program must be reasonably
designed to achieve the objectives to: (i) ensure the confidentiality, availability, and integrity of Company's Confidential lnformation; (ii) protect against any
anticipated threats or hazards to the confidentiality, availability, or integrity of such information; and (iii) protect against unauthorized access to or use of such
information or information systems.
Contractor shall ensure that it produces and communicates a comprehensive, documented data and information security program to all Personnel with access to
Company's Confidential lnformation, Data, and systems.
(c) lnformation Systems Acquisition, Development and Maintenance. Contractor shall utilize a comprehensive application security program to help ensure that
applications are consistent with industry security requirements. This shall include full application compliance testing and software development reviews.
(d) Vulnerability Testing and Remediation. Contractor shall ensure systems are regularly scanned for compliance with industry security standards, and that any
applicable detected vulnerabilities are remediated. Contractor shall ensure that application security vulnerabilities are assessed for business risk and impact, and
have a vulnerability remediation plan.
(e) Secure System Configuration. Contractor shall establish, implement, and actively manage (track, report on, and correct) the security configuration of laptops,
servers, and workstations using a rigorous configuration management and change control process in order to prevent attackers ftom exploiting vulnerable services
and settings.
(f) System Patching. Contractor shall implement an effective software update management process to ensure the most relevant, up-to-date, approved patches are
installed for all authorized software. This process shall also include weighing the benefit associated with installing a patch to resolve a vulnerability against other
factors, including the potential impact to system stability.
(g) Security Review of lnternal and External Applications. Contractor shall perform security reviews of applications developed internally, as well as third party
applications that process, store or transmit data.
(h) Application Security Awareness Program Content. Contractor shall ensure that the content of its application security awareness program incorporates current
and relevant security attacks and vulnerabilities mitigation.
(i) Disaster Recovery and Business Continuity. Contractor shall develop a comprehensive lT disaster recovery and business continuity program and plan that is
accessible by Company, supported by contingency arrangements, and tested periodically.
(j) Remote Access. Contractor shall follow all applicable Company requirements for all remote access to Company resources and systems. To the extent
Contractor's Personnel will have interactive remote access to Company's networks, systems or applications, such access must be performed on a secure
access. Contractor shall maintain an accurale record of Personnel or Subconlractors who will have remote access to Company resour@s and systems, and the
country of origin of individual remote access, and Contractor shall name ils personnel and Subcontractors given remote access to Company's systems. Company
reserves the right to deny individual remote access connection at Company's sole discretion.
V. SECURITY OF CONFIDENTIAL INFORMATION AND DATA
(a) Any Confidential lnformation and Data provided by Company to Contractor (electronically or otheMise) and used by the Contractor directly or indirectly in the
performance of this Contract shall remain at all times the confidential property of Company. Contractor shall not use Confidential lnformation or Data, and shall not
permit any Subcontractor to use Confidential lnformation or Data, for any purpose other than the purpose of performing the Work or Services set forth in this
Contract.
(b) During the term of the Contract, Contractor shall provide Company with Notice if Confidential lnformation or Data will be physically located outside the United
States at least forty-eight (48) hours in advance.
(c) Contractor shall be responsible for preserving the integrity (i.e., completeness and accuracy) of, and preventing any unauthorized access, conuption, loss,
damage and/or destruction to, Confidential lnformation or Data.
VI. OVERSIGHT OF COMPLIANCE
Company reseryes the right to conduct an assessment, audit, examination, or review of Contractofs security controls to confirm Contractor's adherence to the
terms of this Section , as well as any applicable laws, regulations, and industry standards, not more than once per year or upon notification of any Security Breach
or complaint regarding Contractor's privary and security practices. Company may elect to obtain the services of a third party to conduct this assessment, audit,
examination, or review on behalf of Company. Company shall give Contractor no less than thirty (30) calendar days' notice of its intent to conduct such assessment,
audit, examination, or review. As part of this assessment, audit, examination, or review, Company may review all controls in Contractof s physical and/or technical
environment in relation to all Confidential lnformation being handled and/or services being provided pursuant to this Section. Contractor shall fully cooperate with
such assessment by providing access to knowledgeable personnel, physical premises, documentation, infrastructure, and application sofrware that processes,
stores, or accesses Company's Confidential lnformation or systems pursuant to the Contract. Vendor grants the Company the right to perform network-based
vulnerability scans of any lnternet-reachable websites or devices used for the provision of services or support under the Contract.
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Vll. SECURIry BREACH PROCEDURES; EQUITABLE RELIEF
(a) Contractor shall: (i) provide Company with the name and contacl informalion for any Personnel who shall serve as Contractor's primary security contact and
shall be available to assist Company twenty-four (24) hours per day, seven (7) days per week as a contac{ in resolving obligations associated with a real or
emerging Security Breach; (ii) notify Company of a real or emerging Security Breach as soon as practicable, but no later than 24 hours after Contraclor becomes
aware of it; and (iii) noti! Company of any real or emerging Security Breach by telephone at the following number: [phone].
(b) lmmediately following Contractor's notiftcation to Company of a real or emerging Security Breach, the Parties shall coordinale with each other to investigate such
Security Breach. Contraclor agrees to fully and promptly coordinate with Company in Company's handling of the matter, including, without limitation: (i) assisting
with any investigation; (ii) providing Company with physical access to the facilities and operations affected; (iii) facilitating interviews with Contracto/s Personnel
and other employees or agents involved in the matter; and (iv) making available all relevant records and other materials required to comply with applicable law,
regulation, industry standards, or otheMise reasonably required by Company.
(c) Contractor shall use best efforts to immediately remedy any real or emerging Security Breach and prevent any further Security Breach at Contractor's expense in
accordance with applicable privacy laws, regulations, and standards. Contractor shall reimburse Company for actual reasonable costs incuned by Company in
responding to, and mitigating damages caused by, any real or emerging Security Breach, including all costs of notice and/or remediation pursuant to this section. ln
the event of a Security Breach, Contractor shall promptly use its best efforts to prevent a recurrence of any such Security Breach.
(d) Contractor agrees that it shall not inform any third party of any Security Breach without first obtaining Company's prior written consent other than to inform a
complainant that the matter has been forwarded to Company's legal counsel. Further, Company shall have the sole and exclusive right to determine: (i) whether
notice of the Security Breach is to be provided to any individuals, regulators, law enforcement agencies, consumer reporting agencies, or others as required by law
or regulation, or otherwise in Company's discretion; and (ii) the contents of such notice.
(e) Contractor shall fully cooperate at its own expense with Company in any litigation or other formal ac{ion deemed reasonably necessary by Company to protect
its rights relating to the use, disclosure, protection, and maintenance of its Confidential lnformation and Data.
(D Contractor shall follow the same notice procedures above as applicable if it becomes aware of any signiftcant emerging cybersecurity issues involving any
Subcontractors that may result in a Security Breach involving the Company.
(g) Contractor acknowledges that any breach of Contracto/s obligations set forlh in this Section may cause Company substantial ineparable harm for which
monetary damages would not be adequate compensation and agrees that, in the event of such a breach or threatened breach, Company is entitled to seek
equitable reliet including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other
remedy to which Company may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other available
remedies at law or in equity, subject to any express exclusions or limitations in the Contract to the contrary.
VIII. MATERIAL BREACH OF CONTRACT
Contraclor's failure to comply with any of the provisions in this Section is a material breach of the Contract; in such an instance Company may terminate the
Contract for cause in a manner consistent with this Contract. ln such an evenl, Company may terminate the Contract effec{ive immediately upon written Notice to
the Contractor without further liability or obligation to Contractor notwithstanding any provision to the contrary in the Contract.
IX. NET\A/ORK SECURITY & PRIVACY LIABILIry
lf the Work or Services under the Contract involves the rendering of lT services including, but not limited to: software, software or hardware or systems development
or consulting services; interneuapplication services (e.9., web hosting); providing content; connections to systems, technology or network(s); or if Contractor in any
way collects, obtains, maintains or in any way accesses or uses Confidential lnformation or Data, then Contractor, and its Subcontractors, shall maintain Network
Security & Privacy Liability coverage, wtrich can be included via evidenced endorsement to Professional Errors & Omissions coverage, throughout the term of this
Contact and for a period of two (2) years thereafter, with a minimum required limit of $5,000,000 Each Claim.
X. CYBER INDEMNIFICATION
To the fullest extent permitted by the law, Contractor shall defend, indemniff, and hold harmless Company and Company's affiliates, respective officers, directors,
employees, agents, and successors (each an "lndemnitee") from and against all losses, damages, liabilities, actions, judgments, interest, awards, penalties, fines,
costs or expenses, including reasonable attorneys' fees, arising out of or resulting from any third-party claim against any lndemnitee arising out of or resulting from
Contractor's action or omission that represents a failure to comply with any of its obligations under this Section .
36. APPLICATION FOR SERVICES.
These standard terms and conditions shall apply to the provision of all goods and the performance of all services included in or contemplated by this Purchase
Order. However, in the event that any term or condition of this Purchase Order cannot reasonably be applied to the performance of any service included in or
contemplated by this Purchase Order, such term or condition shall be deemed inapplicable thereto.