Contractor agrees to provide the services, goods, or equipment (the “Work”) described in the agreement or purchase order with PowerFlex (the “Agreement”) that is subject to these terms and conditions (the “Terms and Conditions”), in accordance with the following provisions:
- Confidentiality. Contractor agrees to keep all information related to the Work, or that becomes known or disclosed to Contractor in connection with the Agreement or the Work, in confidence and not to disclose any such information without the express written consent of PowerFlex or use any such information except as strictly required for performance of the Work.
- Intellectual Property. All intellectual property created, discovered, or developed by Contractor during the performance of the Agreement shall belong exclusively to PowerFlex.
- Liability and Indemnification. Contractor agrees, to the fullest extent permitted by law, to indemnify, defend and hold harmless PowerFlex, its employees, agents, affiliates, successors and assigns from any claims, damages, or expenses arising out of their performance of this agreement, including any liability, damages, or costs (including reasonable attorneys’ fees and costs of defense) to the extent caused by, or resulting from, the acts, errors, or omissions or willful misconduct of Contractor in connection with the Work or the Agreement, where the foregoing shall apply to any loss, damage, or injury caused any subcontractor of any tier, supplier, agent, employee or consultant of Contractor, or anyone else for whom Contractor is legally liable (each a “Contractor Party”).
- Liens. Contractor, for itself and any Contractor Party, covenants that so long as PowerFlex has made all undisputed payments required to be made under the Agreement, that no mechanics’ lien, mechanics’ lien affidavit or other claim or encumbrance in the nature of a lien shall be filed or maintained against PowerFlex or any third party with an interest in the Work, or on any part of the Work or appurtenances thereto, arising in connection with the Work or any tools, materials, equipment, or services furnished under the Agreement or any subcontract or supplement thereto (“Liens”), and Contractor agrees to (a) at no cost to PowerFlex, within 5 days of the filing of such a Lien, release, discharge or otherwise remove such Lien by bonding, payment or otherwise and shall notify PowerFlex thereof, and (b) indemnify, defend and hold harmless PowerFlex and any third party with an interest in the Work from any such Liens and any losses arising therefrom.
- Termination. PowerFlex may terminate the Agreement, without cause and for any or no reason whatsoever, upon 10 days prior written notice to Contractor.
- If the Work involves construction, construction services, or professional services the following terms shall apply:
Final Completion. Upon final completion of the Work, title, care, custody, control, and risk of loss for the Work, shall pass from Contractor to PowerFlex.
b. Contractor Representations & Warranties. Contractor represents and warrants to PowerFlex that: (a) Contractor has appropriate agreements with its employees and any of its subcontractors to allow it to perform the Work in accordance with the terms of the Agreement; (b) to the extent the performance of the Work requires Contractor or any of its employees or subcontractors to be qualified or licensed, or to the extent Contractor holds itself out to be qualified or licensed, as a professional in any jurisdiction, Contractor, its employee or subcontractor, as applicable, is so qualified and licensed and in good standing at all times relevant to Contractor’s performance of the Agreement, and (c) as of the final completion of the Work, (i) all of Contractor’s employees, agents, contractors, subcontractors and affiliates that have performed any part of the Work or any work required therefore, have been paid in full through such date, and (ii) title to the Work is provided to PowerFlex free and clear of any liens or other restrictions or liabilities on use or ownership.
c. In the event of a termination pursuant to Section 5, PowerFlex may take possession of and finish the Work by whatever method PowerFlex may decide.
d. Performance of the Work. Contractor warrants that the Work will be performed in a good, timely and workmanlike manner, and in accordance with (a) the requirements of the Agreement and these Terms and Conditions; (b) all applicable state, federal, and local laws, regulations, and standards, and (c) generally accepted industry standards (collectively, the “Workmanship Warranty”). The Workmanship Warranty and any warranties provided by Contractor’s subcontractors or equipment manufacturers shall be assignable to PowerFlex or another entity requested by PowerFlex.
- If the Work involves providing material or equipment, the following terms shall apply:
a. If Contractor is delayed in providing the material or equipment, Contractor shall pay daily liquidated damages in an amount equal to 0.5% of Purchase Order and, if delays exceed 90 days, shall be return any deposits paid.
b. There shall be no restrictions on PowerFlex’s ability to assign the warranties to third parties.
c. Length of warranty and exceptions to coverage must be approved by PowerFlex in writing.
d. Delivery terms shall be Delivered Duty Paid (DDP) Incoterms.
e. Payment shall be Net 30 payment terms.
- The Contractor shall maintain the following types of insurance with at least the following minimum coverage terms and limits:
a. General Liability: 1,000,000 per occurrence and $2,000,000 aggregate, must include products and completed operations coverage and be written on an occurrence form.
b. Workers’ Compensation: As required by law.
c. Employer’s Liability: $1,000,000 each accident/occurrence.
d. Automobile Liability: 1,000,000 single combined limit for all owned, non-owned, and hired vehicles.
e. Umbrella/Excess Liability: $5,000,000 per claim and $5,000,000 aggregate. Must be in excess of the required General Liability, Employer’s Liability & Automobile Liability policies.
f. If the Work involves construction: Sufficient coverage for the value of its equipment at the project site under a Contractor’s Equipment policy.
g. If the Contractor is providing design, engineering or surveying services, in addition to the above requirements, the Contractor must also maintain professional/errors & omissions liability insurance with coverage of at least $1,000,000 per occurrence and $2,000,000 in the aggregate.
h. All liability policies must provide Additional Insured status and waive subrogation in favor of PowerFlex and any other entities reasonably requested by PowerFlex. All liability policies must be primary over any coverage maintained by PowerFlex or its customers and contain Cross Liability & Severability of Interests clauses. All insurance companies providing coverage must have an AM Best Rating of A- and XIII Financial Size.
i. The Contractor may provide the required insurance coverage through any combination of primary and excess/umbrella liability policies, provided that the total insurance limits meet the required amounts.
a. In no event shall either party be liable or responsible to the other for any type of incidental, punitive, indirect or consequential damages.
1. Contractor shall abide by all safety, access, and other reasonable requirements of PowerFlex’s client, provided such requirements are presented to Contractor in writing. This Agreement shall be governed by and construed in accordance with the internal laws of the state where the Work is performed, without regard to conflict of law principles.
b. Contractor’s relationship with PowerFlex shall be that of an independent contractor. Contractor is not the agent of PowerFlex and is not authorized to make any representation, contract, or commitment on behalf of PowerFlex.
c. The provisions hereof shall inure to the benefit of and be binding upon each party’s successors and permitted assigns. This Agreement may not be amended, modified, or assigned by either party, in whole or in part, without the prior written consent of the other party.
d. The Agreement referenced hereunder may include any type of binding agreement with PowerFlex, including a Purchase Order, Work Order or Subcontract. By entering into such Agreement, the Contractor agrees that these Terms and Conditions apply, and Contractor agrees to be bound by the provisions contained herein for all matters arising in connection with the Work or the Agreement.
e. Any reference to the Agreement herein is deemed to incorporate, as applicable, these Terms and Conditions. References to “PowerFlex,” “our,” “we,” or “us,” mean PowerFlex Solar, LLC and its applicable affiliates.
f. Please review these Terms and Conditions from time to time. We may amend or update our Terms and Conditions from time to time, and the version in effect as of the date of the Agreement was signed or the Work was provided will apply with respect thereto.
If you have any other questions regarding these Terms and Conditions, please contact us at:
PowerFlex Solar, LLC.
15445 Innovation Drive
San Diego, CA 92128