Terms and Conditions
Scale MicrogridSolutions Operating, LLC, together with its subsidiaries and affiliates (individuallyand collectively, “Scale”), and the person or entity selling goods or providingservices to Scale (referred to as “Company”)agree to these terms and conditions (the “Agreement”). This Agreement includesScale’s Provider Code of Conduct (as amended from time to time), any applicable statement of work (“SOW”),written purchase order (“PO”), exhibits, attachments, specifications,drawings, and mutually executed amendments or change orders expresslyincorporated by reference (each an “Order Document” and collectively,the “Order Documents”), and all documents incorporated by specificreference herein or therein. Company quotations, proposals, acknowledgements,sales confirmations, and invoices are provided for reference only and shall notmodify or supplement this Agreement or any Order Document unless expresslyincorporated therein by Scale in writing.
1. General. Scale engages Company to provide the servicesspecified in each mutually agreed and executed SOW (the “Services”) orto sell the products specified in each PO (the “Products”). Company’sdelivery of the Products, commencement of work on the Products or Services,shipment of Products, signedacknowledgment of the PO, sending any form of sales confirmation to Scale, retentionof the PO for ten (10) days without written objection thereto, billing Scalefor any portion of the Products or Services, or indicating in some other mannerits acceptance of the Order Document, whichever occurs first, shall be deemedacceptance of (i) the applicable Order Document and (ii) the exclusion of any terms or conditionsstated in Company’s acknowledgement, quotation, invoice or any otherdocumentation, all of which are expressly rejected. Unless expressly identifiedin the applicable PO or a mutually executed amendment or change order, in theevent of a conflict between the terms of this Agreement, the Order Document, orCompany’s invoices, the following order of precedence shall apply: (1) thisAgreement; (2) the Order Document; and (3) Company’s invoices. This Agreementis non-exclusive, allowing Scale to procure similar services or products fromothers and Company to serve other customers.
2. Price. Prices shall be inclusive of all delivery costs. Unless otherwise expressly agreed in a mutually executed change order or amendment, all pricing shall be firm and fixed. Company warrants that the prices for the Products or Services sold to Scale hereunder are not less favorable than those currently extended to any other customer of Company for the same or similar articles in similar quantities. All prices shall be in local currency stated in the Order Document.
3. Payment; Taxes and Duties. Payments are contingent upon(a) delivery of the Products andperformance of the Services being made in accordance with the Order Document (including proving Scale witha bill of lading upon shipment of Products), (b) Scale’s receipt of a proper invoice, and, if required, (b) lienwaivers from Company and all of its subcontractors. Unless otherwise agreed inwriting, payment terms are net thirty (30) days from Scale’s receipt ofinvoice. Company is solely responsible for filing all appropriate tax forms andpaying all applicable export duties, tariffs, documentation, and otherexport-related charges related to the delivery of the Products. Scale shall be responsible for all federal,state, and municipal taxes arising from the purchase of the Products orperformance of Services, excluding Company’s income taxes and subject to anyapplicable tax exemption certificates provided by Scale. Scale may withhold,deduct and/or set off any amounts owed to Company arising out of Company’sperformance under the Purchase Order, SOW, or any other transaction with Scale.
4. Performance; Delivery; Title and Risk of Loss; Shipment. Companywill arrange for delivery of the Products by a carrier chosen by Company. Eachdelivery from Company to Scale shall include a commercial invoice with thefollowing information written in English, as applicable: (i) a detaileddescription of the goods being shipped; (ii) quantity of goods; (iii) weight ofthe shipment, both net and gross; (iv) value of the shipment, per unit and intotal; (v) Harmonized System (HS) code; (vi) Country of Origin of goods; (vii)Importer of Record (“IOR”); (viii) the applicable Incoterms (should match thoseset forth in the Purchase Order); (ix) final destination; (x) the ExportControl Classification Number of the items being shipped; (xi) the exportlicense number applicable to the items being shipped (indicate “NLR” if nolicense is required); and (xii) Customs Clearance Instruction Statement. Timeis of the essence in delivering the Products and performing the Services undereach Order Document. If Company fails to deliver the Products or complete theServices by the date specified in the applicable Order Document, Scale may,without liability and in addition to its other rights and remedies, terminatethe Order Document by notice effective when received by Company as toundelivered Products or unperformed Services, and to procure substitute goodsor services, with any resulting losses chargeable to Company. Company shallpromptly notify Scale in writing of any actual or anticipated delay, includingthe cause of such delay and the corrective actions Company intends to take tomitigate or avoid such delay. Unless otherwise stated in the applicable OrderDocument, Scale shall pay reasonable shipping costs per its shipping instructions; however,Company shall be responsible for packaging, shipping, and ensuring safe delivery,and shall bear all risk of damage or loss until the Products are delivered toScale’s designated delivery destination, as identified on the face of the OrderDocument. If applicable, Company shall package, handle and store the Productsin accordance with applicable industry standards and manufacturerrecommendations to prevent damage or warranty impairment during shipment. Unlessotherwise specified in writing in the Order Document, title to all Productscovered by this Agreement shall pass to Scale upon shipment at Company’sfacility identified on the face of the Order Document, and Company shallprovide a bill of lading confirming such transfer. Risk of loss shall transferto Scale upon delivery to Scale’s designated delivery destination identified onthe Order Document.
5. Inspection. Payment for the Products or Servicesdelivered hereunder shall not constitute acceptance thereof. Scale, uponreceiving possession of the Products or upon completion of the Services inaccordance with the Order Document, shall have a ten (10) day opportunity toinspect the Products or Services and to reject any or all of such Products orServices which are in Scale’s good faith judgment, (i) defective ornon-conforming, or (ii) (with respect to any Services) incomplete or fail tomeet the Standard of Care (as defined below) or other requirements as set forthin the applicable Order Document. Scale shall provide written notice of anyrejection, specifying the basis for such rejection. Upon receipt of suchnotice, Company shall, at its sole expense, have ten (10) business days to curethe defect, non-conformity, deficiency, or failure to meet the Standard of Careor other applicable requirements, unless a different timeframe is mutuallyagreed upon in writing. If Company fails to cure within the cure period, Scalemay, at its option, (i) return rejectedProducts to Company at Company’s expense and receive a full refund orreplacement, (ii) require reperformance of any deficient or incomplete Servicesto meet the applicable requirements stated in the Order Document; (iii) obtainsubstitute Products or Services from another supplier at Company’s expense, or(iv) pursue any other remedies available under this Agreement or applicable law.In addition to Scale’s other rights, Scale may charge Company for, withoutlimitation, all expenses of unpacking, examining, repacking, reshipping and anyother damages that may result from any defect or non-conformity in anyProducts. Notwithstanding any acceptanceof the Products or expiration of the inspection period, Company shall remainliable for any latent defects or non-conformities not readily discoverable upon reasonableexamination during the inspection. Scale shall notify Company of any latentdefects within a reasonable time after discovery. Upon notice, Company shall,at its sole cost and expense, promptly (a) repair or replace the affectedProducts, or (b) refund the purchase price for the affected Products andreimburse Scale for any related damages. The remedies in this section are inaddition to, and not in limitation of, Scale’s other rights under thisAgreement or applicable law.
6. Warranties. Company expressly represents and warrantsthat all Products and Services furnished under the Order Document shall be new,strictly conform to any specifications, drawings, samples or descriptionsprovided by Scale, and be free from defects in design, material or workmanshipat the time of delivery or completion. Company warrants that it has good titleto and the right to sell the Products and that the Products are free and clearof all claims, liens and other encumbrances of any kind. Company warrants thatall such Products will conform to any statements made on any containers orlabels or advertisements for such Products, and that any Products will beadequately contained, packaged, marked, labeled and handled in accordance withmanufacturer recommendations. Company warrants that the Products shall conformto all applicable technical and safety provisions and comply with allapplicable industry, federal, state, local laws, regulations, directives andstandards including, but not limited to, those concerning safety, labor,health, environmental and fire. Company further warrants that all Productsfurnished hereunder will be merchantable, and will be safe and appropriate forthe purpose for which Products of that kind are normally used. If Company knowsor has reason to know the particular purpose or end-use for which Scale intendsto use the Products, Company warrants that such Products will be fit for suchparticular purpose or end-use. Inspection, testing, acceptance or use of theProducts furnished hereunder shall not affect Company’s obligation under thiswarranty, and such warranty shall survive inspection, testing, acceptance anduse. Company represents and warrants that the Products , as delivered, and the Services,as performed, do not infringe any third-party intellectual property rights,including any valid patent, copyright or other intellectual property rights. Inthe event a claim or suit alleging infringementarises, Company shall, at its own expense and at Scale’s option: (a) procurefor Scale the right to continue using the Products or Services; (b) replace ormodify the Products or Services to be non-infringing Products; or (c) terminatethe affected portion of the Products or Services and provide Scale a pro ratarefund for the value of such Products or Services, accepting return of themwhere applicable. Company’s warranty shall run to Scale, its successors,assigns, customers and users of Products or Services sold by Scale.
7. Ownership of Work Product. All materials, designs, drawings, reports,calculations, models, analyses, inventions (whether or not patentable), worksof authorship, trade secrets, ideas, concepts, trade names, and trade orservice marks created, developed, or prepared by Company or its subcontractorsfor Scale using Scale’s confidential information or other resources(collectively “Work Product”) shall be the sole and exclusive property ofScale. Work Product excludes: (i) Company’s standard, off-the-shelf productsnot specifically designed, customized or modified for Scale; or (ii) Company’spre-existing intellectual property or standard materials developedindependently of its work for Scale, and without use of Scale’s confidentialinformation or resources. Company herebyirrevocably assigns to Scale all worldwide rights, titles and interests in andto the Work Product. Scale may, atScale’s option and expense, seek protection of the Work Product by obtainingpatents, copyright registrations and any other filings related to proprietaryor intellectual property rights. Companyagrees to assist Scale, at Scale’s request and expense, in executing documents,applications, and/or other instruments, and to supply information as Scalereasonably requests, in order to permit Scale to protect, perfect, register,record and maintain Scale’s rights to the Work Product. These obligations shall survive theexpiration or termination of this Agreement or any applicable Order Document.
8. Termination. Scale may terminate this Agreement or anyOrder Document, in whole or in part, for its sole convenience. In the event ofsuch termination, Company shall immediately stop all work hereunder and shallimmediately cause Company’s suppliers and subcontractors to cease such work. Scalewill reimburse Company for reasonable, documented actual, direct andnon-cancellable costs (which shall not include indirect costs or lost profits)resulting directly from any such termination for convenience including paymentor services rendered until the termination date. Company shall not be paid forany work done after receipt of the notice of termination, or for any costsincurred by Company’s suppliers or subcontractors which Company couldreasonably have avoided. Company shall not unreasonably anticipate therequirements of the Order Document. Scale may terminate this Agreement or anyapplicable Order Document for cause in the event of any default by Company,including without limitation, (i) any late delivery or late performance; (ii) anydelivery of defective or non-conforming Products, or failure to meet theStandard of Care (subject to the cure period detailed in Section 5); (iii) anymaterial breach by Company of this Agreementor any Order Document after thirty (30) days written notice of such breach; or (iv)failure to provide Scale, upon Scale’s request, with adequate assurances offuture delivery or performance. In the event of termination for cause , Scaleshall not be liable to Company for any amount, and Company shall be liable to Scalefor any and all damages sustained by reason of the circumstances which gaverise to the termination for cause. If it should be determined that Scale hasimproperly terminated this Agreement or an Order Document for cause, suchtermination shall be deemed a termination for convenience.
9. Force Majeure. If the performance of any obligationarising under this Agreement or any Order Document is prevented, restricted, orinterfered with by causes beyond either party’s reasonable control, includingwithout limitation: war; insurrection; riot; terrorism; orders or acts ofmilitary or civil authority, or by national emergencies; economic sanction orembargo; cyber-attacks; explosion; vandalism; strikes; lock-outs; workstoppages; fire; earthquake; hurricane; flood; lightning; wind; drought; act ofGod; changes in law or binding governmental orders that directly prohibit performance(each a “Force Majeure”), and if the party unable to carry out itsobligations gives the other party prompt written notice of such Force Majeure,then the party invoking this provisionshall be excused from the performance ofits obligations to the extent affectedby such Force Majeure. The excused party shall use commercially reasonableefforts to avoid or remove such causes of non-performance and shall promptlyproceed to perform following the end of the Force Majeure. Any relief grantedas a result of a Force Majeure event shall be limited to a reasonable extensionof time for performance, and shall not entitle Company to additionalcompensation or price adjustment. If a Force Majeure event has occurred andcontinues for a period exceeding sixty (60) consecutive days, Scale shall beentitled to serve upon Company thirty (30) days’ notice to terminate this Agreementor any applicable Order Document. If at the expiry of the thirty (30) days’notice period, the Force Majeure shall continue, this Agreement or theapplicable Order Document shall terminate, and neither Party shall have furtherliability to the other Party, except for any payments due and owing at the timeof such termination.
10. Insurance. Company, and any of Company’s suppliers orsubcontractors, if applicable, shall maintain all necessary insurance coveragesincluding products liability, property damage, fire and explosion, andliability for accidents and injuries to the public or to employees in thefollowing minimum amounts: (a) Comprehensive General Liability of at least$1,000,000 per occurrence/$2,000,000 aggregate; (b) Auto Liability: $1,000,000Combined Single Limit; (c) Workers’ Compensation Insurance in accordance withstate statutory requirements including Employer’s Liability of $1,000,000 perincident; (d) Umbrella Liability: $5,000,000 per occurrence; and, for thoseproviding professional services, (e) Professional Liability: $1,000,000 pereach wrongful act. Scale reserves the right to require additional insurancecoverage, including cyber liability, pollution/environmental liability andwarehouseman’s liability, where appropriate based on the scope of Products andServices being provided. Scale reserves the right to require higher limitsdepending on the Products or Services. All required policies (excludingWorker’s Compensation) shall include Scale, its parent(s), subsidiaries,affiliates, directors, officers, and employees, as well as Scale’s lenders orfinanciers to the extent required by Scale, as additional insureds and shallcontain a waiver of subrogation in favor of the same parties. Upon Scale’srequest, Company shall provide to Scale a certificate of insurance prior to thecommencement of the Order Document and annually upon policy renewal or wheneverthere is a material change in coverage. Company’s failure to provide a certificateof insurance, and Scale’s failure to request a certificate of insurance, shallnot constitute a waiver of this requirement. All loss resulting from the failure to affect such insurance shall beassumed by Company. The compliance of Company with these insurance requirementsshall not relieve or limit Company’s liability.
11. Limitation and Exclusion of liability. (A) Each party’sliability for any direct and actual loss or damage however arising under theOrder Document shall be limited to the total value of the applicable OrderDocument (“Liability Cap”). This Liability Cap shall not apply to (i)any amount to be paid by Company’s insurance according to the coverage limitsset forth in the “Insurance” section above; (ii) third party claims forproperty damage, personal injury, or death; (iii) liability to which applicablelaw does not permit any limitation; (iv) damages for breaches ofconfidentiality; (v) Company’s indemnification obligations or liabilitiesarising under the Order Document for third party intellectual property rightinfringements; or (vi) Company’s liabilities arising under controlled goods& export laws or foreign trade regulations. (B) NEITHER PARTY NOR ANY OFITS INDEMNIFIED PERSONS SHALL BE LIABLE TO THE OTHER PARTY OR ANY OF ITSINDEMNIFIED PERSONS FOR ANY DAMAGES, WHETHER SPECIAL, PUNITIVE, EXEMPLARY,INDIRECT, OR CONSEQUENTIAL, OR LOSSES OR DAMAGES FOR LOST REVENUE OR LOSTPROFITS, WHETHER FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION WITH THIST&C OR THE PURCHASE ORDER, EXCEPT AS EXPRESSLY SET FORTH HEREIN. Thisexclusion shall not apply to (i) damages for breaches of confidentiality; (ii) Company’sindemnification obligations or liabilities arising under the Order Document forthird party intellectual property right infringements; or (iii) Company’sliabilities arising under controlled goods & export laws or foreign traderegulations.
12. Indemnification. Company shall indemnify, defend and holdharmless Scale, Scale’s customers, insurers and affiliates and their managers,officers, members, parents, affiliates, subsidiaries, employees, agents,successors and assigns against any suits, actions or proceedings at law or inequity (including consequential and incidental costs, expenses and reasonablelegal fees incurred in connection with the defense of any such matter) and allclaims, losses, damages, judgments, obligations, liabilities, costs andexpenses arising out of or resulting in any way from: (i) any breach of therepresentations, warranties, covenants, agreements and/or obligations of Companyunder Applicable Laws; (ii) any defects in the Products purchased hereunder; or(iii) any claim of infringement (including patent, trademark, copyright,industrial design, proprietary right or other intellectual right, or misuse ormisappropriation of trade secret) arising out of the performance, purchase,sale or use of the Products or Services covered by a Order Document whethersuch Products or Services were provided alone or in combination with othergoods, services, software or processes. In complying with the provisions ofthis paragraph, Company shall actively and at its own expense defend Scaleagainst any claim, provided that, if in Scale’s sole opinion, Company fails tomount an adequate defense to any claim, Scale shall have the right to so defendand Company shall cooperate with such efforts and shall indemnify Scaletherefore as provided in this paragraph. This indemnification shall be inaddition to the warranty obligations of Company. Company’s obligationshereunder shall survive the expiration or termination of this Order Document.
13. Compliance with Laws and Provider Code of Conduct. Company represents, warrants and covenantsthat it has complied, and will continue to comply with all applicable laws,including without limitation, any and all federal, state and local laws andstatutes of the Unites States as applicable, Fair Labor Standards Act of 1938,Occupational Safety and Health Act of 1970, Americans with Disabilities Act of1990, Title VI of the Civil Rights Act of 1964, Family and Medical Leave Act of1993, as each may be amended from time to time, and any and all otheridentification and procurement of required permits, certificates, approvals andinspections, labor and employment obligations, affirmative action, wage andhour laws and any other laws which subsequently become applicable(collectively, “Applicable Laws”). Company represents, warrants and covenants that it has complied, andwill continue to comply with, all applicable federal, state and local laws andstatutes, including those relating to pollution control, waste disposal,hazardous substances, and protection of the environment, and Company shall holdScale harmless from and against any and all liability due to Company’s failureto so comply. Company undertakes to conduct its business in compliance withthis Agreement in a way that is consistent with the principles set forth in Scale’sProvider Code of Conduct (available on Scale’s website) and with theobligations set forth herein and therein, for the duration that this Agreementis in full force and effect, to maintain and enforce its own policies and proceduresrelating to ethical business conduct, to ensure compliance with the ApplicableLaws and the Scale’s Provider Code of Conduct.
14. PrevailingWages and Apprenticeship. Company must comply withall state and federal prevailing wage and apprenticeship requirements,including without limitation the Inflation Reduction Act of 2022 (the “IRA”),as applicable to all Services provided hereunder. Specifically, Company mustcomply with the Prevailing Wage and Apprenticeship Initial Guidance underSections 48, 48C, and 48E of the IRA, as applicable, and other relatedprovisions, including the requirements set forth in IRS Notice 2022-51. Allcosts required for compliance with such requirements have been included in theapplicable quoted price. Company shall keep and cause its subcontractors andsuppliers to keep and make available as needed, appropriate records of itsactions to comply with this provision, and shall promptly provide all suchrecords and other supporting information requested by Scale to support Scale’sefforts to secure the maximum value of the investment tax credit (ITC)incentive.
15. Confidentiality; Advertising. Company shall consider allinformation furnished by Scale (“Confidential Information”) to beconfidential and shall not disclose any Confidential Information to any third-partyor use Confidential Information for any purpose other than the performance ofits obligations under the Agreement or any Order Document, unless Companyobtains written permission from Scale to do so. As used herein, “Confidential Information” shall include withoutlimitation, any end customer information, plans, photographs, designs,drawings, blueprints, specifications, inventions, technical data, trade secretsand any other materials relating to an Order Document or to the business ofScale. All Confidential Information isand shall remain the property of Scale. Company shall ensure that Scale’sConfidential Information is clearly marked and stored as being the legalproperty of Scale and that such information or materials are not used toperform under any contract for any third party. Upon Scale’s written request,Company shall promptly return to Scale all Confidential Information. Companyshall hold Confidential Information in strict confidence using the same degreeof care and means that it uses to protect its own confidential information oflike kind, but in any event not less than reasonable care to prevent theunauthorized disclosure or use of Confidential Information. Company will not,without the prior written consent of Scale, advertise, publicly announce orprovide to any other person information relating to the existence or details ofan Order Document or use Scale’s name in any format for any promotion,publicity, marketing or advertising purpose.
16. Governing Law. ThisAgreement and any Order Document issued hereunder will be governed andconstrued in accordance with the laws of the state of New York, without regardfor its conflict of laws principles. The United Nations Convention on Contracts for theInternational Sale of Goods shall not apply to the parties’ rights orobligations under this Agreement or any Order Document issued pursuant hereto.
17. Disputes. Anydispute arising from or relating to this Agreement or any Order Document shallfirst be referred to the senior management of the parties hereto forresolution. If the parties are unable toresolve any such dispute within thirty (30) days after referral, then eitherParty may refer the dispute to a court of competent jurisdiction in NewYork. Each Party will bear its ownexpenses.
18. Miscellaneous. The rights herein granted are for thebenefit of the parties hereto and are not for the benefit of any third person,firm or corporation, and nothing herein contained shall be construed to createany rights in any third parties under, as the result of, or in connection withthe Order Document. No part of the OrderDocument may be assigned or subcontracted without the prior written approval ofScale. Any assignment or transfer of theOrder Document without such written consent shall be null and void. Where applicable, Company shall ensure thatthere is a written contract between Company and any of its subcontractorssupplying services or goods in connection with this Agreement which imposesterms equivalent to those imposed on Company in this Agreement (“RelevantTerms”). Company shall be responsiblefor the observance and performance of the Relevant Terms, and shall be directlyliable to Scale for any breach of any of the Relevant Terms. Company shall flowdown to its supply chain Scale’s requirements and this Agreement, asapplicable. If any provision of this Agreementor application thereof is found invalid, illegal or unenforceable by law, theremainder of this Agreement will remain valid, enforceable and in full forceand effect and the parties hereto will negotiate in good faith to substitute aprovision of like economic intent and effect. This Agreement and the OrderDocument contain the entire and only agreement between the parties hereto, andsupersede all pre-existing agreements between such parties, respecting thesubject matter hereof, and any representation, promise or condition inconnection therewith not incorporated herein shall not be binding upon eitherparty hereto. The Order Document shall inure to the benefit of, and be bindingupon, the successors and assigns of Scale without restriction. A waiver of anydefault hereunder or of any term or condition of this Agreement shall not bedeemed to be a continuing waiver or a waiver of any other default or any otherterm or condition hereunder. The relationship between Company and Scale will bethat of independent contractors and not that of principal and agent, nor thatof legal partners. Neither party heretowill represent itself as the agent or legal partner of the other party norperform any action that might result in other persons believing that it has anyauthority to bind or enter into commitments on behalf of the other.
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