ACCEPTANCE:  Customer has read and understands these terms and conditions and agrees that their signature affixed onto the Electrical Engineering & Service Co., LLC. Proposal or acceptance of work via Customer purchase order constitutes acceptance of these terms and conditions.

1. Customer wishes to utilize Electrical Engineering & Service Co., LLC. (“EESCO”) services.

2. It is the intent that these terms and conditions apply to all EESCO services for or on behalf of Customer.

3. EESCO’s Obligations.  EESCO agrees to provide its services, subject to the following:

  1. EESCO shall provide the services, in accordance with the standards set forth by the enterprise asset management industry.  
  2. If applicable to the services, EESCO shall deliver Data (“Data”) obtained from performing the services and reports displaying such Data. To access the Data and reports, EESCO shall provide Customer with an access code to a website owned or operated by EESCO or an agent of EESCO, and that website shall contain the Data and reports.  EESCO shall ensure that the Data and reports remain confidential by using a Secured Socket Layer to access the website.  
  3. EESCO may in its sole discretion provide the services with either employees or independent contractors.
  4. EESCO shall perform the services during Ordinary Working Hours.  Ordinary Working Hours refers to eight (8) consecutive hours, including a 30-minute lunch break and two 15-minute safety breaks, spent performing the services on each day from Monday to Friday during the First Shift.  The First Shift refers to the time period on each calendar day starting at 9:00 a.m. local standard time and continuing until 5:00 p.m. on the same calendar day. 
  5. EESCO shall, with Customer’s written approval, perform and bill the services during the following Extraordinary Working Hours as follows:
    1. Second Shift Hours are any working hours starting at 5:00 p.m. local standard time on a calendar day at and continuing until 1:00 a.m. on the following calendar day. Second Shift Hours are billed at 150% of the rate identified in the EESCO Proposal. 
    2. Third Shift Hours are any working hours starting at 1:00 a.m. local standard time and continuing until 9:00 a.m. on the same calendar day. Third Shift Hours are billed at 200% of the rate identified in the EESCOProposal. 
    3. Saturday Hours are any working hours on any Saturday.   Saturday Shift Hours are billed at 150% of the rate identified in the EESCO Proposal. 
    4. Sunday Hours are any working hours on any Sunday. Sunday Hours will be billed at 200% of the rate identified in the EESCO Proposal. 
    5. Holiday Hours are any working hours on a legal holiday. Holiday Hours are billed at 200% of the rate identified in the EESCO Proposal.
    6. Overtime Hours are any working hours that exceed eight (8) working hours on a calendar day. Overtime Hours are billed at the Overtime Rate stated in the EESCO Proposal. 

4. Customer’s Obligations.  Customer agrees to the following: 

  1. Customer shall cooperate with EESCO in performing the services, or otherwise in administering or facilitating the services. 
  2. Customer shall specify the location and identity of any components, equipment, or machinery subject to the services or otherwise requested from EESCO. 
  3. ​Customer shall identify an individual responsible for administering, facilitating, or coordinating the day-to-day activities for the services. 
  4. Customer shall provide all relevant standards, policies, manuals, procedures, protocols, or regulations for any on-site location, including but not limited to those relevant to parking, sign-in/sign-out, emergencies, and health and safety.
  5. Customer shall provide access to any location, components, equipment, or machinery subject to the services or otherwise requested by EESCO.  Access includes but is not limited to moving, replacing, or altering any part of a building, facility, structure, or obstacles which impair EESCO’s ability to perform the services.  Customer shall pay the hourly rate indicated on the EESCO Proposal for every Ordinary Working Hour lost due to the Customer’s failure to comply with this paragraph.
  6. Customer shall provide a qualified technician to assist EESCO in performing the services, if MV Voltage equipment is subject to the services.
  7. Customer, and any agent of Customer, shall not directly or indirectly solicit or otherwise interfere with any EESCO contract or business relationship, including any and all personnel involved with performing the services, and for a period of two (2) years after the completion of the EESCO services and final payment is received. 
  8. Customer shall pay the Fee within thirty (30) calendar days after receiving an invoice showing the outstanding balance for the services, which shall include any taxes related to the services. If any part of the Fee is not paid within thirty (30) calendar days, Customer shall pay a penalty of 1.5% of the unpaid Fee, which shall recur monthly until the Fee is paid in full. These payment terms shall prevail over any other payment terms unless alternate payment terms are agreed to within the EESCO Proposal. 
  9. Customer shall, provide at least thirty (30) calendar days’ notice of any scheduling changes related to consulting or engineering services and at least seven (7) calendar days for field services, including but not limited to infrared, vibration and electrical safety services. Customer shall pay the fee indicated on the EESCO Proposal for each untimely notice of any scheduling change. In the event Customer fails to provide such notice in sufficient time so as to allow for the cancellation of any site visitation, customer shall pay an additional fee indicated on the EESCOProposal for each employee and/or each independent contractor that was dispatched to the site. Customer further agrees to assume any incidental expenses incurred based on the Customer’s failure to comply with this paragraph.
  10. ​Customer shall, before any services are performed, provide any and all information or documentation about:
    1. Any issues related to accessing any components, equipment, or machinery subject to the services or otherwise requested from EESCO, such as whether a ladder is required.
    2. Whether any Medium Voltage (“MV”) equipment (greater than 600 volts) is foreseeably subject to the services.
    3. Any location-specific safety standards, policies, manuals, procedures, protocols, regulations, or requirements.
    4. Any drug testing requirements or procedures related to the services.

5. Ownership of Software. In accordance with the Services, EESCO shall deliver Data (“Data”) obtained from performing the Services and reports displaying such Data.  To access the Data and reports, EESCO shall provide Customer with an access code to a website and/or one or more software applications, such as EESCO’s ViewPoint® software, owned or operated by EESCO or an agent of EESCO (the “ViewPoint Software”), and (subject to Customer’s payment of all applicable Fees and compliance with all other terms and conditions of this Agreement) the ViewPoint Software shall contain the Data and Reports.  Customer’s right to access the ViewPoint Software shall be limited solely for Customer’s internal use by Customer personnel.  EESCO shall ensure that the Data and Reports remain confidential by using a Secured Socket Layer to access the website.  

Any and all data collected or utilized by Customer including but not limited to analytics regarding the Services may be used by EESCO for its internal metrics and key performance indicators. The parties acknowledge and agree that, notwithstanding anything to the contrary herein, EESCO’s ViewPoint software (the “ViewPoint Software”) and all improvements thereto, and that any and all data collected or utilized by Customer or the ViewPoint Software, including but not limited to analytics regarding the Services may be used by EESCO for its internal metrics and key performance indicators.

The Customer grants to EESCO a perpetual, irrevocable, royalty-free, worldwide, non-exclusive right and license, including the right to grant sublicenses to third parties, to use data collected in the course of its Service obligations to Customer for any purpose and in any form, medium or distribution method now known or hereafter existing, known or developed. EESCO agrees to use any personally identifiable information in accordance with EESCO’s Privacy Policy. In addition, Customer hereby irrevocably represents and warrants to EESCO that Customer has all necessary power, authority, right, title and/or licenses to grant to EESCO the foregoing right and license. 

6. No Right to Reverse Engineer, Disassemble, Modify or Decompile Software.  Customer may not reverse engineer, disassemble, modify or decompile the EESCO Software.  

7. No Right to Reproduce Software: Customer may not make any copies or reproduce in any way the EESCO Software or any of the media that might contain the EESCO Software or make any copies or reproduce in any way any of the materials, forms or documentation furnished by EESCO with respect to the EESCO Software.  

8. Intellectual Property. EESCO and Customer shall each retain ownership, and all right, title, and interest in and to, their respective software, programming copyrightable works, writings, drawings, designs, concepts, techniques, inventions, discoveries, improvements, documentation or other works including any electronic embodiment of them regardless of form.    

9. Site Access Policies. Customer expressly acknowledges that EESCO agents are not authorized to execute any agreements, contracts, understandings, releases, waivers, or anything else affecting the agent or EESCO’s legal rights for any on-site activities (“On-Site Agreements”), such as those commonly included in sign-in sheets when entering or traversing the on-site premises.   Customer therefore agrees to never require EESCO agents to execute On-Site Agreements and to otherwise terminate any On-Site Agreements that may exist.   

10. Confidentiality. Customer shall hold in a fiduciary capacity for EESCO’s benefit all Confidential Information and shall not directly or indirectly disclose any Confidential Information, or use any of the same in any manner, without EESCO’s prior written consent, either during the Term and at all times thereafter. Confidential Information means all information, knowledge, or data, that is secret or otherwise not publicly available, which includes but is not limited to trade secrets, business processes, manufacturing processes, formulae, technical information, know-how, plant and product specifications, business plans, strategies, forecasts, financial records, reports, accounts, proposals, quotations and tenders submitted or prepared for submission to customers or potential customers, customer lists, names of customer contacts, terms of trade with customers, supplier lists, names of supplier contacts, terms of trade with suppliers, current products and services, new products and services, pricing for products and services, product development (including research and engineering into EESCO, concepts, designs, drawings, patterns, devices, apparatus and equipment, formulas and algorithms), employee information, sources of supplies and materials, designs, software, production and design techniques and methods, identity of investments or investors, identity of contemplated investments or investors, business opportunities, valuation models and methodologies, processes, technologies, and any intellectual property of EESCO. 

11. Assignment. Customer agrees not to assign or delegate any rights or obligations set forth in this Agreement without EESCO’s express written consent.  

12. Indemnification. Customer shall defend, indemnify, and hold harmless EESCO, its parents, subsidiaries, affiliates, successors, assigns, and all their respective directors, officers, employees, shareholders, and agents from and against and all suits, claims, actions, causes of actions, liabilities, losses, damages, injuries, costs and expenses (including, but not limited to interest, penalties, reasonable attorney fees and other litigation expenses) (collectively, “Claims”) arising from or alleged to have arisen from these terms and conditions, including without limitation, any Claims arising from the electronic or remoteimplementation of any “lock out/tag out” services provided by SEAM to Customer hereunder.

13. No Limit

  1. The Indemnification obligations set forth herein will apply regardless of the amount of insurance coverage held by Customer, including that under any worker’s compensation act, disability act, or other act or law that would limit the amount payable by or for Customer or EESCO and will not be limited by any insurance carried or provided by Customer or EESCOin accordance with these terms and  conditions, EESCO’s Proposal(s), Purchase Order, or otherwise. Nothing in any Indemnity is intended to limit EESCO’s remedies against Customer.

14. EESCO shall maintain workers’ compensation coverage as required by law. EESCO shall also obtain and maintain in full force and effect, Commercial General Liability and Professional Liability. EESCO will provide Customer a copy of EESCO’s Certificate of Insurance upon request. 

15. Independent Contractor.  Customer agrees that EESCO is an independent contractor, and that EESCO has the right of control over the manner and means of providing the services, including the details and quality of the services, the number of hours worked, the selection of materials, tools, and personnel used, the routes travelled in providing the services, and all aspects of the day-to-day activities necessary to perform the services.  Customer further agrees that no other business relationship or association, such as a partnership or joint venture, is formed between the Parties. 

16. Substance Abuse. Policy. EESCO employs workers around the globe and must comply with various privacy laws and regulations in Canada and the European Union. In an effort to comply with the different privacy laws set forth by the many nations in which EESCO does business, EESCO’s Substance Abuse Policy provides for pre-employment drug testing and testing for cause, but not random drug testing. Nonetheless, EESCO acknowledges that unique considerations for on-site performance may necessitate additional drug testing.  In which case, Customer must notify EESCO about whether any additional drug testing is required and about whether the additional testing is subject to any policies and procedures.  EESCOshall then identify qualified agents who are willing to consent to the additional drug testing.  

17. Termination. The EESCO Proposal, other than the continued performance and payment of the services, may terminate upon the following events:

  1. Event of Default. An Event of Default is when either Party: 
    1. becomes insolvent;
    2. becomes subject to any proceeding in bankruptcy or liquidation, reorganization, or arrangement for the appointment of a receiver or trustee to take possession of the Party’s assets, or any other form of external administration, or any other proceeding under any law for relief from creditors;
    3. assigns any legal rights to the Party’s creditors; 
    4. loses possession of any property to the Party’s creditors; 
    5. becomes incapable or otherwise incompetent of performing under these terms and conditions;
    6. fails to fulfill, perform, or otherwise comply with any term and condition of these terms and conditions;
    7. ceases to hold any licenses, permits, or other approvals relevant to the performance under these terms and conditions; is subject to a change of Control, as defined by R.C. § 1704.01c(6); 
    8. or is convicted of theft, fraud, any crime involving dishonesty or false statement, or any crime arising out of the performance under in these terms and conditions.
    9. Any Party triggering an Event of Default shall cure or otherwise provide reasonable assurances to the other Party’s subjective satisfaction within 30 days after receiving written notice about the Event of Default, in accordance with the notice provisions set forth herein.  If Defaulting Party fails to do so, then these terms and conditions and EESCO’s Proposal shall terminate, provided that any terms and conditions other than the continued performance and payment of the services shall survive. 
  2. Right of Cancellation EESCO may cancel the EESCO Proposal at any time after providing notice to Customer in accordance with the notice provisions herein.   

18. Limitation of Warranty. Customer agrees that the EESCO Proposal is only a contract for the services and is therefore not subject to Article 2 of the Uniform Commercial Code, codified at Chapter 1302 (Sales) of the Ohio Revised Code. Regardless, EESCO warrants that it will provide the services in accordance with the standards set forth by the enterprise asset management industry, and otherwise makes no other express warranties or implied warranties, including the implied warranties of merchantability and fitness for a particular purpose.

19. Limitation of Damages. EESCO shall never, under any circumstances, become liable for special, punitive, exemplary, incidental, or consequential damages, including lost profits, even if EESCO is aware about the potential for all such damages. EESCO’s liability shall never, under any circumstances, exceed the Fee.  SEAM shall not be responsible under any circumstances for any damages arising from the electronic or remote implementation of any “lock out/tag out” services provided by SEAM to Customer under these terms and conditions.

20. Limitation of Action. Customer agrees not to make any Claims, as defined in Paragraph 11, more than one year after the Termination Date. 

21. Force Majeure.  Force Majeure shall mean any event beyond EESCO’s reasonable foresight and control, including but not limited to governmental acts, acts of God, fires, explosions, storms, floods, earthquakes, tides, lightning, wars, and health pandemics. If EESCO fails to perform any obligation set forth in these terms and conditions in any way due to a Force Majeure event, Customer agrees to excuse such failure. 

22.​Forum Selection. The Parties agree to resolve any dispute arising from these terms and conditions by litigation in any court of competent jurisdiction in Cuyahoga County, Ohio, provided that EESCO may elect to pursue a court action to seek injunctive relief in any court of competent jurisdiction to terminate the violation of its proprietary rights, including but not limited to trade secrets, copyrights, or trademarks. 

23. ​Order of Precedence. Each Service shall be governed by the Parties herein pursuant to the EESCO Proposal. In the event EESCO permits a Customer to use its own purchase order to perform any EESCO Service, the Parties hereby acknowledge and agree that the EESCO Proposal shall prevail notwithstanding any terms and conditions of any Customer purchase order or other Customer documentation. To the extent that the terms of any Customer Purchase Order or other Customer documentation is inconsistent with the EESCO Proposal, the EESCO Proposal shall control. Further, no terms and conditions shall be added to the EESCO Proposal for services as the EESCO Proposal shall control.  Therefore, if there are any conflicting terms between the EESCO Proposal and any Customer documentation, the EESCO Proposal will prevail.

24​. Merger Clause. These terms and conditions constitute the entire agreement between the Parties with respect to the services and supersedes all previous and contemporaneous written and oral negotiations, understandings, arrangements, and agreements. These terms and conditions may be amended only by a written instrument signed by both Customer and EESCO, and is binding upon the Parties, their successors and assigns. In the event more than one term or conditions and/or applicable statutes, laws, ordinances and regulations apply to the services the most stringent requirements shall control.

25. ​Waiver. No term or condition herein is waived without a statement in writing signed by the party against whom enforcement of the waiver is sought.  Any written waiver shall operate only as to the specific term or condition waived and shall not operate as to any continuing acts or acts in the future, unless specifically stated as such in the waiver. 

26. ​Controlling Law. The Parties agree to interpret these terms and conditions in accordance with the applicable laws of the United States and the State of Ohio, without giving effect to conflict of law principles.

27. ​Severability.  If any court of competent jurisdiction finds that anything in these terms and conditions are illegal, invalid, void, or otherwise unenforceable, then the remaining provisions shall remain fully effective and shall in no way become impaired or invalidated. 

28. Safety.Customer shall provide a safe working environment in full compliance with all laws, statutes, regulations, ordinances, and industry standards relevant to health and safety.   Customer shall also certify, upon EESCO’s request, compliance with any health and safety requirements subject to this section and in EESCO’s Safety Policy

  1. Customer shall address any and all health and safety concerns raised by EESCO or any agent of EESCO to EESCO’s subjective satisfaction.
  2. Customer shall provide all information relevant to health and safety, including but not limited to Safety Data Sheets. 

Customer agrees that EESCO is excused from performing any services for any reason related to health and safety.   Customer further agrees that EESCO may terminate the EESCO Proposal based on Customer’s failure to address EESCO’s health and safety concerns to EESCO’s subjective satisfaction.

This safety section is to specifically inform the CUSTOMER of EESCO’s Safety policy and to notify CUSTOMER of their role in helping to maintain a safe working environment for our employees and contractors. The prevention of injury, illness, and losses at the site remains the responsibility of all parties, persons, and entities at the worksite(s) and we look to partner with you and those at your facilities to ensure the safety and health of all involved.

​EESCO has established an organizational safety program that provides safety measures, policies, and standards conforming to those required or recommended by governmental and regulatory authorities having jurisdiction and industry best practices. 

EESCO’s program includes, but is not limited to, safety policies and trainings and a completed Pre-job Safety Briefing (document) with a knowledgeable site representative before commencing most work (all under NFPA 70E). This must be repeated when unanticipated changes to the work scope, job location, weather, or other operational conditions occur. 

EESCO provides all required safety apparel and equipment to perform contracted work at the CUSTOMER’s worksite(s). This includes arc flash/flame-resistant clothing (AF/FR), hard hats with face shields, safety footwear, safety glasses, hearing protection, hand protection appropriate for the hazards, and personal fall/arrest or restraint systems. Before work commences, the CUSTOMER shall itemize all required, and in select cases, provide work activity-specific personal protective equipment (PPE). This includes, but is not limited to, additional or more protective hearing protection, personal alarm monitoring, respiratory protection (e.g., N95, gas mask), chemical protective clothing, personal fall protection, and rescue equipment. 

It is EESCO’s policy that all EESCO employees and contractors have the authority and responsibility to Stop Work* on any task or operation where there are concerns or questions regarding the control and resolution of health and safety hazards. The CUSTOMER agrees that EESCO shall not perform any services if any identified health, and/or safety hazards are not cured within a reasonable amount of time. The CUSTOMER further agrees that EESCO may terminate the EESCO Proposalbecause of the CUSTOMER’s failure to cure these hazards to EESCO’s subjective satisfaction. 

CUSTOMER and its affiliates will treat any employee or contractor that suspends work under this policy in a respectful manner and work to understand the concern(s) in order to cure such issue(s). In the event CUSTOMER does not adhere to the above, there may be cause for action, up to and including, cancelation of the services. The CUSTOMER’s safety program does not relieve EESCO or other parties of their safety responsibilities. 

CUSTOMER will take all required steps to bring the working environment and property up to Occupational Safety and Health Administration (“OSHA”) standards to prevent immediate or future injury, illness, or losses. CUSTOMER must inform EESCO of any safety event at the worksite that may impact the work or health and safety of EESCO employees and contractors (e.g., gas leak, serious operational incident, etc.). 

The CUSTOMER shall give all required written or verbal notices and alerts related to compliance with all applicable rules, regulations, orders, and other lawful requirements established to prevent injury, loss, or damage to persons or property.

EESCO is responsible for reporting incidents, injuries, illnesses, near misses, property damage, or operational downtime involving EESCO employees and contractors to the CUSTOMER and all applicable federal, state, and local governmental bodies and agencies requiring notice. Relevant events include any bodily injury requiring a physician’s care, any property damage, or any operational failure that could result in serious bodily injury or operational downtime. EESCO shall inform the CUSTOMER via an incident report, urgent response, or other measures as soon as safe practicable.

​The CUSTOMER shall inform EESCO of any hazards that EESCO employees and contractors may encounter while conducting work at CUSTOMER’s site(s). The CUSTOMER shall provide advanced written notice to EESCO upon its knowledge of any known hazards or unsafe conditions at any worksite(s). 

​The CUSTOMER shall ensure that all hazardous materials, both products and wastes, relating to or in vicinity of the work are communicated and stored properly in accordance with the Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”). EESCO employees and contractors must have immediate access to the Safety Data Sheet (SDS) for all hazardous materials stored or used in their work location. A copy or copies of the SDS and any relevant exposure information (including data) to protect EESCO members shall be furnished to EESCO at least fifteen (15) Business Days before the commencement of the work or upon knowledge of the hazard. 

​The CUSTOMER is also required to designate an employee at the site who will act as EESCO’s designated safety representative to provide health and safety information specific to the worksite(s). This individual must hold sufficient knowledge regarding health and safety hazards and risks at the worksite(s) to adequately inform EESCO and aid in injury, illness, and loss prevention. 

The CUSTOMER shall implement safety measures, as required by applicable regulation and pertaining to the work, including establishing safety rules, posting appropriate warnings and notices, and procedures to prevent injury or illness. EESCO reserves the right to engage the CUSTOMER to discuss health and safety and ensure all required hazards controls are in place to meet regulatory obligations and protect EESCO employees and contractors.

*Stop Work: The authority of EESCO employees and sub-subcontractors to suspend individual tasks or group operations when the control of health, safety, and environmental risk is not recognized or understood, and equipment service is compromised—defined in the internal EESCO “Stop Work Authority” Policy.

29. Non solicitation – During the period commencing on the Effective Date and ending one year following the Termination Date, Customer shall not, without EESCO’s prior written consent, directly or indirectly; (i) solicit or encourage any person to leave the employment or other service of EESCO or its Affiliates; or (ii) hire, on behalf of the Customer or any other person or entity, any person who has left the employment within the one year period following the termination of that person’s employment with EESCO or its Affiliates. During the period commencing on the date hereof through and ending one year following the Termination Date, Customer will not, intentionally interfere with the relationship of EESCO or its Affiliates with, or endeavor to entice away from EESCO or its Affiliates, any person who during the term of the Agreement is, or during the preceding one-year period, was an employee or subcontractor or other customer of EESCO or its Affiliates.

30. These terms and conditions may only be modified by an amendment issued by EESCO LLC.

4885-7431-6561, v.1