GENERAL PROVISIONS
1. DEFINITIONS
When used in this document, the following terms will have the meanings set forth in this Section.
(a) “Contract” means the agreement between Customer and EnergySolutions, including the Purchase Order, task orders, releases,
these General Provisions, and any special terms and conditions, flowdowns, and specifications attached to the Purchase
Order.
(b) “Customer” means any third party entity with whom EnergySolutions has entered into an agreement to provide Goods and/or
Services, or will enter into an agreement to provide the same during the term of the Contract.
(c) “EnergySolutions Information” will mean all technical, commercial and other information of EnergySolutions in tangible or
non-tangible form which is, directly or indirectly, disclosed by EnergySolutions to Seller, its directors, officers or employees.
EnergySolutions Information may include, but is not limited to, formulae, compositions, specifications, designs, ideas,
machine readable data, production and quality control methods, processes, techniques, business policies or practices, and
other technical and/or commercial data, as well as product samples. EnergySolutions Information will also include the terms
and conditions of the Contract as well as any information obtained by the Seller, its directors, officers, employees, agents or
contractors during visits and/or demonstrations in laboratories, pilot plants, production facilities and/or other facilities of
EnergySolutions and/or its Customers.
(d) “Goods” means any articles, materials, supplies and/or goods identified on the Purchase Order.
(e) “Purchase Order” means the written document provided to Seller by EnergySolutions which states, among other things, a
description of the Goods and/or Services being purchased by EnergySolutions as well as quantity, price, time of performance,
delivery states and locations, and other terms and conditions attached thereto.
(f) “Seller” means the entity entering into the Contract with EnergySolutions as stated in the Purchase Order.
(g) “Services” means any labor or services, professional or other, identified on the Purchase Order.
2. PURCHASE ORDERS and ORDER OF PRECEDENCE
(a) These General Provisions are incorporated into the attached Purchase Order issued to Seller by EnergySolutions.
(b) Any inconsistencies between the written agreements comprising the Contract will be resolved according to the following
descending order of precedence: (1) the Purchase Order, (2) product specifications and/or scope of work specifications
attached to the Purchase Order, (3) special terms and conditions attached to the Purchase Order, and (4) these General
Provisions.
(c) Goods will not be supplied in excess of quantities, and Services will not be performed in excess of approved amounts,
specified in the Purchase Order. EnergySolutions will have no obligation to pay for any such excess Goods delivered or
Services performed. Seller shall be liable for handling charges and return shipment costs for any excess quantities.
(d) The Contract integrates, merges, and supersedes any prior offers, negotiations and agreements concerning the subject matter
described therein and, together with the Purchase Order, constitutes the entire agreement between the Parties. In no event
will any additional or differing terms or conditions proposed by Seller or included in Seller’s acknowledgment of the
Purchase Order be binding upon EnergySolutions.
(e) Seller’s acknowledgment, acceptance of payment, or commencement of performance, shall constitute Seller’s unqualified
acceptance of the Contract.
3. TIMELY PERFORMANCE and SELLER REPRESENTATIONS
(a) Time is of the essence in Seller’s performance of the Contract.
(b) If Seller becomes aware of difficulty or delay in delivering Goods or performing Services, Seller shall so notify
EnergySolutions in writing within 24 hours, giving pertinent details. Any such notification will not change any performance
schedule or decrease Seller’s obligations under the Contract.
(c) Seller represents and warrants to EnergySolutions that each of its employees, agents and subcontractors are (i) authorized to
work in the United States of America in accordance with applicable laws, and (ii) able to understand and communicate in
English (whether verbal or written).
(d) Seller further represents and warrants to EnergySolutions that in providing Goods and/or Services for EnergySolutions or its
Customers, Seller and each of its employees, agents and subcontractors will procure all required licenses/permits, pay all
required fees and charges, and comply with all applicable laws, guidelines and directives of any local, state, and/or federal
governmental authority.
4. PACKING AND SHIPMENT
(a) Unless otherwise specified, all Goods are to be packed in accordance with good commercial practice.
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(b) A complete packing list will be enclosed with all shipments. Seller shall mark containers or packages with necessary lifting,
loading, and shipping information, including the Purchase Order number, item number, dates of shipment, and the names and
addresses of consignor and consignee. Bills of lading will include the Purchase Order number.
(c) Unless otherwise specified, delivery will be FOB destination.
5. CHANGES
(a) EnergySolutions may, at any time, by written notice to Seller, and without notice to sureties or assignees, make changes
within the general scope of any Goods and/or Services purchased pursuant to the Purchase Order, including the following: (i)
description of Goods and/or Services; (ii) quantity of Goods or change in scope of work for Services; (ii) drawings, designs,
or specifications; (iii) method of shipping or packaging; (iv) place of inspection, acceptance, or point of delivery; (v) time of
performance; and (vi) place of performance.
(b) Within five business days of Seller’s receipt of EnergySolutions’ written change order, Seller shall notify EnergySolutions if
any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of the
Purchase Order (such notice will include the amount of change in cost or time); whereupon, EnergySolutions, in its sole
discretion, may (i) make an equitable adjustment in the price and/or delivery schedule, and modify the Purchase Order
accordingly, (ii) determine not to implement such change, or (iii) cancel the Purchase Order.
(c) If the Seller’s proposed equitable adjustment includes the cost of Goods made obsolete or excess by the change,
EnergySolutions will have the right to prescribe the manner of disposition of the Goods.
(d) Failure to agree to any equitable adjustment shall be resolved in accordance with the “Disputes” clause of the Contract.
However, nothing contained in this “Changes” clause will excuse Seller from proceeding without delay in the performance of
the Purchase Order as changed.
(e) Notwithstanding anything contained herein to the contrary, EnergySolutions will not be responsible to pay Seller for any
Services performed or Goods provided outside the scope of the Purchase Order for which a written change order is not
obtained.
6. EHSQS REQUIREMENTS
(a) Seller shall, at all times, perform its obligations under the Purchase Order in a manner to avoid risk of endangerment to
health, bodily harm to persons, damage to property, and damage to the natural environment.
(b) If EnergySolutions is purchasing Services, Seller shall ensure that its personnel perform the Services in accordance with
EnergySolutions’ and its Customer’s EHSQS requirements. Seller’s failure to perform the Services in accordance with such
EHSQS requirements will be deemed a material breach of the Contract. Seller shall have sole responsibility for implementing
its safety, health and environmental program, taking all safety and health precautions and environmental compliance actions
necessary, and continuously inspecting all equipment, materials, facilities, processes and work in order to anticipate,
recognize, evaluate and control any conditions that might result in any of the aforementioned risks.
(c) If EnergySolutions is purchasing Services, Seller shall provide EnergySolutions with regular communications regarding
EHSQS matters. During the term of the Contract, Seller shall provide EnergySolutions with any required reports set forth in
the Contract. If no reports or time periods are specified, then commercially reasonable EHSQS reports will be due on or
before the fifth day of each calendar month for the preceding calendar month.
(d) Seller shall prepare EHSQS reports, certificates and other documents that may from time to time be requested by
EnergySolutions.
(e) EnergySolutions may from time to time request reasonable changes to the format of any report required hereunder. If not
unduly burdensome or inconsistent with Seller’s operations, the relevant revised format will be adopted by Seller as soon as
Seller is able to reasonably accommodate such changes.
(f) Seller represents that each chemical substance constituting or contained in any Goods is on the list of chemical substances
compiled and published by the Administrator of the Environmental Protection Administration pursuant to the Toxic
Substances Control Act (15 U.S.C. Sec. 2601 et seq.) as amended.
(g) Seller shall provide to EnergySolutions any Material Safety Data Sheet applicable to the Goods and/or Services in
conformance with and containing such information as required by the Occupational Safety and Health Act of 1970 and
regulations promulgated there under, or its State approved counterpart.
(h) Seller shall be responsible for compliance with all requirements and obligations relating to its employees under all local,
state, and federal statutes, ordinances, rules, and obligations including, but not limited to, employer’s obligations under laws
relating to: income tax withholding and reporting; civil rights; equal employment opportunity; discrimination on the basis of
age, sex, race, color, religion, disability, national origin, or veteran status; overtime; minimum wage; Social Security
contribution and withholding; unemployment insurance; employer’s liability insurance; worker’s compensation; veteran’s
rights; and all other employment, labor, or benefits related laws.
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(i) Seller shall comply with the Occupational Safety and Health Act of 1970 (“OSHA Act”), as amended. Seller shall notify
EnergySolutions promptly in writing if a charge of noncompliance with the OSHA Act has been filed against Seller in
connection with Services performed or Goods provided hereunder on premises owned, leased or operated by EnergySolutions
or its Customer.
(j) Seller shall provide and maintain a quality assurance system to an industry recognized quality standard and in compliance
with any other specific quality requirements identified in the Contract.
(k) Seller shall provide EnergySolutions with access to Seller’s and its sub-tier supplier’s facilities and records for surveillance,
inspection, or audit by EnergySolutions, its designated representative, and others authorized by EnergySolutions. Records of
all quality assurance and/or quality control inspections and tests performed by Seller shall be kept complete and available to
EnergySolutions and its Customer.
7. REQUIRED REPORTING
Seller shall timely submit all reports required by all applicable federal and state laws and regulations, and as reasonably required
by EnergySolutions or its Customer. Seller shall complete and submit the Subcontractor Monthly Injury/Illness Report during
each month in which Seller incurs any labor hours on EnergySolutions’ or its Customer’s sites. Seller shall submit the completed
form on or before the 5th day of the calendar month following a reporting period. Seller shall maintain records and reports of all
accident, injury, spill or release occurrence information, and, upon request, furnish such information to EnergySolutions or as
required by all applicable laws or regulations.
8. TERM
The term of the Contract will be set forth in the Purchase Order.
9. TERMINATION FOR CONVENIENCE
(a) Termination for Convenience
(i) EnergySolutions may, at its sole discretion, terminate the Contract in total or any portion not completed for its
convenience by giving written notice to Seller.
(ii) Upon termination for convenience, Seller will immediately: (1) cease the delivery of Goods and/or the providing of
Services; (2) prepare and submit to EnergySolutions an itemization of all completed and partially completed Goods,
Services or other deliverables; (3) deliver to EnergySolutions any and all Goods and other deliverables completed up to
the date of termination at the agreed upon prices; and (4) deliver upon request any Goods or other deliverables in
process.
In the event EnergySolutions terminates for its convenience after performance has commenced,
EnergySolutions will compensate Seller for its actual out-of-pocket reasonable expenses incurred by Seller for Goods
and/or Services in process up to and including the date of termination. Seller shall use its best efforts to mitigate
EnergySolutions’ liability under this section.
(iii) Notwithstanding anything contained in the Contract to the contrary, in no event will EnergySolutions be liable to Seller
for lost or anticipated profits, unabsorbed indirect costs or overhead, or for any sum in excess of the total Purchase Order
price. Seller’s termination claim will be submitted within 90 days from the effective date of the termination.
(iv) Seller shall continue to diligently deliver all Goods and perform all Services not terminated pursuant to this section.
(v) No claim will be allowed for any manufacture or procurement in advance of Seller's normal flow time unless there has
been prior written consent by EnergySolutions.
(b) Work Stoppage
(i) Seller shall stop the delivery of Goods or the performance of Services for up to 90 days in accordance with any written
notice received from EnergySolutions, or for such longer period of time as the Parties may agree and shall take all
reasonable steps to minimize the incurrence of costs allocable to the Goods and/or Services during the period of
stoppage.
(ii) Within such period, EnergySolutions shall either terminate all of a portion of the Purchase Order in accordance with the
provisions of these General Provisions or continue all or a portion of the Purchase Order by written notice to Seller. In
the event of a continuation of any portion of the Purchase Order, an equitable adjustment in accordance with the
principles of the “Changes” clause will be made to the price, performance schedule, or other provision(s) affected by the
stoppage, if applicable; provided that the claim for equitable adjustment is made within (30 days after date of notice to
continue.
(iii) Seller shall continue to diligently deliver all Goods and perform all Services not stopped pursuant to this section.
10. TITLE and RISK OF LOSS; WARRANTY
(a) Title to, and risk of loss for, all Goods will be and remain with Seller until EnergySolutions has accepted such Goods at the
place of delivery indicated on the Purchase Order.
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(b) Seller warrants that it is and will remain free of any obligation or restriction which would interfere or be inconsistent with or
present a conflict of interest concerning the Goods and/or Services to be furnished by Seller under the Purchase Order.
(c) Seller warrants that any and all Services will be performed with the degree of high professional skill and sound practices and
judgment which are normally exercised by recognized professional firms with respect to services of a similar nature. This
warranty will begin upon delivery of the first of the subject Services and extend for a period ending one year after final
acceptance. If any non-conforming Services are identified within the warranty period, Seller, at EnergySolutions’ option,
shall promptly re-perform the Services at Seller’s expense. If EnergySolutions elects to have a third party perform services to
remedy the defective performance, such performance by a third party will be at Seller’s expense. All warranties will run to
EnergySolutions and its Customer.
(d) Seller warrants that all Goods furnished pursuant to the Purchase Order will strictly conform to applicable specifications,
drawings, samples, descriptions, and other requirements of the Contract and be free from defects in design, material, and
workmanship. This warranty will begin upon delivery of the first of the subject Goods and extend for a period ending one
year after final acceptance. If any non-conforming Goods are identified within the warranty period, Seller, at
EnergySolutions’ option, shall promptly repair or replace the Goods. Transportation of replacement Goods and return of
non-conforming Goods will be at Seller’s expense. If repair or replacement of Goods is not timely, EnergySolutions may
elect to return, repair, replace, or reprocure the Goods from a third party at Seller’s expense. All warranties will run to
EnergySolutions and its Customer.
(e) Seller further warrants that all Goods provided to EnergySolutions or its Customer, or used in the performance of Services,
will be genuine, original, new, unused, and suitable for the intended purpose, unless otherwise specified in writing by
EnergySolutions. Seller represents and warrants that Seller maintains and complies with such policies, procedures and
inspections as are reasonable and necessary to avoid counterfeit or suspect Goods being sold to EnergySolutions or used on
its work sites. Furthermore, Seller shall indemnify EnergySolutions, its agents, Customer, and any other third parties for any
financial loss, injury, or property damage resulting directly or indirectly from Goods not complying with the above
warranties. This includes, but is not limited to, Goods that are defective, suspect, or counterfeit; Goods that have been
provided under false pretenses; and Goods that are materially altered, damaged, deteriorated, degraded, or result in product
failure. Types of Goods known to have been misrepresented include (but are not limited to) fasteners; hoisting, rigging, and
lifting equipment; cranes; hoists; valves; pipe and fittings; electrical equipment and devices; plate, bar, shapes, channel
members, and other heat treated materials and structural items; welding rod and electrodes; and computer memory modules.
Seller’s warranty also extends to labels and/or trademarks or logos affixed, or designed to be affixed, to Goods supplied or
delivered to EnergySolutions or its Customers. In addition, because falsification of information or documentation may
constitute criminal conduct, EnergySolutions may reject and retain such information or Goods, at no cost, and identify,
segregate, and report such information or activities to cognizant Nuclear Regulatory Commission or Department of Energy
officials.
(f) In providing any warranty repair or replacement of Goods or re-performance of Services, Seller shall make good and be
liable for the costs of all damage caused to other surrounding work or materials.
(g) In the event Seller fails to carry out such repair, replacement or re-performance to EnergySolutions’ reasonable satisfaction
within the time specified by EnergySolutions, EnergySolutions may re-procure the Goods or perform or cause to be
performed by third parties any Services in such manner as EnergySolutions deems appropriate. EnergySolutions will be
entitled to recover from Seller all costs and expenses incurred thereby or deduct such costs and expenses from any amounts
due or to become due to Seller. Seller shall assist EnergySolutions in every way, without cost to EnergySolutions, in
enforcing the warranties contained herein. Nothing contained in this section is intended, or will be construed, to relieve the
obligations, liabilities under laws, and/or warranties of any manufacturer and/or supplier of any materials or manufactured
articles to Seller, EnergySolutions or a Customer.
(h) The warranties for replaced Goods or re-performed Services will be extended from the date of EnergySolutions’ acceptance
of such Goods or Services for a period of one year, except where a longer warranty period has been specified, in which
instance, the longer period will apply.
(i) Neither the final acceptance of Goods or Services, the payment therefore, nor any provision in any other document will
relieve Seller of its responsibilities for neglect or faulty workmanship in supplying Goods or performance of Services under
the Purchase Order.
11. PAYMENTS, TAXES, and DUTIES
(a) Unless otherwise provided for in the Purchase Order, terms of payment will be net 45 days from the latest of the following:
(i) EnergySolutions’ receipt of the Seller’s proper invoice; or (ii) actual delivery of Goods or completion of performance of
Services.
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(b) Payment for labor will be computed by multiplying the appropriate hourly rate(s), set forth in the Purchase Order by the
number of direct labor hours performed. Rates will include wages, overhead, general and administrative expense, and profit.
Fractional parts of an hour will be payable on a prorated basis.
(c) No overtime will be paid by EnergySolutions unless approved in advance by the EnergySolutions Procurement
Representative.
(d) Reimbursable costs in connection with lower-tier subcontracts will be limited to the amounts actually paid by Seller to lowertier subcontractors.
(e) Seller shall procure required materials at the most advantageous prices available. Cash and trade discounts, rebates,
allowances, credits, and other amounts, which have been accrued to the benefit of Seller, are for the account of
EnergySolutions. All residual material will belong to EnergySolutions who will provide disposition instructions to the Seller.
(f) Each payment made will be subject to reduction to the extent of amounts which are found by EnergySolutions or Seller not to
have been properly payable, and will also be subject to reduction for overpayments. Seller shall promptly notify
EnergySolutions of any such overpayments found by Seller.
(g) In the event the Purchase Order specifies that payments are to be made to Seller upon completion of identified milestones,
EnergySolutions may, at its option, retain ten percent (10%) of each milestone payment until final completion and acceptance
of the Goods and/or Services, whereupon the retainage will be paid upon properly prepared and executed releases of claims
as required below.
(h) EnergySolutions shall have a right of setoff against payments due or at issue under the Purchase Order or any other
agreement between the Parties.
(i) Payment will be deemed to have been made as of the date of mailing EnergySolutions’ payment or electronic funds transfer.
(j) Unless otherwise specified, prices include all applicable federal, state, and local taxes, duties, tariffs, and similar fees
imposed by any government, all of which will be listed separately on each invoice.
(k) Seller acknowledges and agrees that release of final payment for Goods and/or Services may be conditioned upon the
completion of radiation exposure testing for Seller’s personnel, the requirement for which will be determined by the sole
discretion of EnergySolutions.
(l) Seller shall submit, and shall cause each of its subcontractors to submit, to EnergySolutions lien waivers and a release of
claims in a form acceptable to EnergySolutions prior to final payment under the Purchase Order.
(m) EnergySolutions may audit invoices and Seller’s substantiating books and records as EnergySolutions deems necessary.
12. TECHNICAL DIRECTION
(a) EnergySolutions engineering and technical personnel may from time to time render assistance, give technical advice, discuss
or affect an exchange of information with Seller’s personnel concerning the Goods to be delivered and/or the Services to be
performed under the Purchase Order. No such action will be deemed to be a change under the “Changes” clause of the
Contract and will not be the basis for equitable adjustment.
(b) If EnergySolutions is purchasing Services, each Party shall appoint and identify to the other Party a Technical
Representative(s) who will be responsible for maintaining liaison between the Parties.
13. EXPORT CONTROL
(a) Seller agrees to comply with all applicable U.S. export control laws and regulations, specifically including, but not limited to,
the requirements of the Arms Export Control Act, 22 U.S.C.2751-2794, including the International Traffic in Arms
Regulation (ITAR), 22 C.F.R. 120 et seq.; and the Export Administration Act, 50 U.S.C. app. 2401-2420, including the
Export Administration Regulations, 15 C.F.R. 730-774; including the requirement for obtaining any export license or
agreement, if applicable. Without limiting the foregoing, Seller agrees that it will not transfer any export controlled item,
data, or services, to include transfer to foreign persons employed by or associated with, or under contract to Seller or Seller’s
lower-tier suppliers, without the authority of an export license, agreement, or applicable exemption or exception.
(b) Seller shall notify EnergySolutions if any deliverable under the Purchase Order is restricted by export control laws or
regulations prior to delivery.
(c) Seller shall immediately notify EnergySolutions if Seller is, or becomes, listed in any Denied Parties List or if Seller’s export
privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. Government entity or agency.
(d) If Seller is engaged in the business of either exporting or manufacturing (whether exporting or not) defense articles or
furnishing defense services, Seller represents that it is registered with the Office of Defense Trade Controls, as required by
the ITAR, and it maintains an effective export/import compliance program in accordance with the ITAR.
(e) Where Seller is a signatory under an EnergySolutions export license or export agreement (e.g., TAA, MLA), Seller shall
provide prompt notification to EnergySolutions in the event of changed circumstances including, but not limited to,
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ineligibility, a violation or potential violation of the ITAR, and the initiation or existence of a U.S. Government investigation,
that could affect the Seller’s performance under the Purchase Order.
(f) Seller shall be responsible for and shall indemnify and hold EnergySolutions harmless from all losses, costs, claims, causes of
action, damages, liabilities and expense, including attorneys’ fees, all expense of litigation and/or settlement, and court costs,
arising from any act or omission of Seller, its officers, employees, agents, suppliers, or subcontractors at any tier, in the
performance of any of its obligations under this clause.
14. FLOW-DOWN and SUBCONTRACTOR PROVISIONS
(a) In the event Seller is selling Goods or performing Services as a subcontractor or lower-tier subcontractor to EnergySolutions
under a contract or agreement with a Customer, EnergySolutions will have the right to flow-down any of the provisions of
such contract or agreement to the Seller. In addition, EnergySolutions may, at its option, include in the Contract such Federal
Acquisition Regulation (FAR) and Department of Energy Regulation (DEAR) clauses as it deems necessary in order to
protect its or its Customers interests.
(b) Seller agrees to abide by all such flow-down provisions as if it were the named contractor under such contract or agreement.
All such flow-down provisions and FAR and DEAR clauses will be included in the Contract.
(c) Seller shall remain primarily liable for the performance of its subcontractors and any obligations accrued by, or amounts
owed to, subcontractors. EnergySolutions may deduct amounts otherwise owed hereunder to Seller in order to satisfy such
subcontractor obligations or amounts.
15. FURNISHED PROPERTY
(a) EnergySolutions may provide to Seller property owned by either EnergySolutions or its customer (“Furnished Property”).
Furnished Property will be used only for the performance of the Purchase Order.
(b) Title to Furnished Property will remain in EnergySolutions or its Customer. Seller shall clearly mark, in a manner acceptable
to EnergySolutions (if not so marked), all Furnished Property to show its ownership.
(c) Except for reasonable wear and tear, Seller shall be responsible for, and shall promptly notify EnergySolutions of, any loss or
damage to Furnished Property. Without additional charge, Seller shall manage, maintain, and preserve Furnished Property in
accordance with good commercial practice.
(d) At EnergySolutions’ request, and/or upon completion of the Purchase Order, Seller shall submit, in an acceptable form,
inventory lists of Furnished Property and shall deliver or make such other disposal of Furnished Property as may be directed
by EnergySolutions.
(e) In the event the scope of Seller’s performance under the Purchase Order includes installation of materials or equipment
furnished by others, it shall be Seller’s responsibility to exercise proper care in inspecting, handling, storing, and installing
such items. Seller shall examine the items provided and report to EnergySolutions in writing any items it may discover that
do not conform to the requirements of the Purchase Order. Seller shall not proceed to install non-conforming items without
further instructions from EnergySolutions. Loss or damage due to acts or omissions of Seller will be deducted from any
amounts due or to become due Seller.
16. ENERGYSOLUTIONS’ INFORMATION
(a) Seller shall keep in strict confidence EnergySolutions’ Information and shall not reproduce or disclose any of
EnergySolutions’ Information, without the prior written consent of EnergySolutions. Seller agrees not to use any
EnergySolutions’ Information for any purpose except to perform the Purchase Order. Seller shall maintain data protection
processes and systems sufficient to adequately protect EnergySolutions’ Information.
(b) Seller’s obligation of non-disclosure will not apply to EnergySolutions’ Information that (i) is or becomes available to the
public other than as a result of a disclosure by Seller; (ii) was already known to Seller prior to being disclosed by
EnergySolutions as evidenced by written records kept in the ordinary course of business; (iii) or becomes available to Seller
on a non-confidential basis from a source other than EnergySolutions, provided that such other source is not bound by a
confidentiality agreement with EnergySolutions. If any portion of any EnergySolutions Information falls within any of these
exceptions, the remainder will continue to be subject to the requirements of the Contract.
(c) Prior to performing Services pursuant to the Purchase Order, Seller shall have a written agreement with each of its employees
performing Services sufficient to enable Seller to comply with this section.
(d) EnergySolutions’ Information provided to Seller remains the property of EnergySolutions. Within 30 days of the expiration
or termination of the Contract, or upon the request of EnergySolutions, Seller shall return all, or certify the destruction of all,
EnergySolutions’ Information and any reproductions, and Seller shall promptly surrender all information or proprietary data
developed by Seller in performance of the Purchase Order, unless its retention is authorized in writing by EnergySolutions.
(e) The provisions set forth above are in addition to any obligations contained in any non-disclosure agreement between the
Parties.
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(f) Seller shall not provide any confidential or proprietary information to EnergySolutions without the Parties’ prior execution of
a non-disclosure agreement.
17. RELEASE of INFORMATION
Except as required by law, no public release of any information, or confirmation or denial of same, with respect to the Contract
will be made by Seller without the prior written approval of EnergySolutions.
18. INSPECTION and ACCEPTANCE
(a) EnergySolutions and its Customer may inspect all Goods and/or Services at reasonable times and places. Seller shall provide
all information, facilities, and assistance necessary for safe and convenient inspection without additional charge.
(b) No such inspection will relieve Seller of its obligations to furnish and warrant all Goods and/or Services in accordance with
the requirements of the Contract. EnergySolutions’ final inspection and acceptance will be at destination.
(c) If Seller delivers non-conforming Goods and/or Services, EnergySolutions may, in addition to any other remedies available at
law or at equity: (i) accept all or part of such Goods and/or Services at an equitable price reduction; or (ii) reject such Goods
and/or Services.
(d) Seller shall not re-tender rejected Goods and/or Services without disclosing the corrective action taken.
19. INSURANCE
(a) Seller shall maintain, at its expense, at a minimum the following liability insurance coverage: (1) Workers Compensation in
compliance with all statutory requirements; (2) Employer’s Liability Insurance in the amount of $500,000 per occurrence; (3)
Commercial General Liability Insurance in the amount of $2,000,000 per claim, $5,000,000 aggregate; (4) Automotive
Liability Insurance providing bodily injury and property damage coverage in the amount not less than $1,000,000 combined
single limit.
(b) All policies will contain a waiver of subrogation in favor of EnergySolutions and all of its subsidiaries, owners, officers and
agents, subcontractor and all of their insurers.
(c) Insurance requirements noted above will be primary and non-contributory and will name EnergySolutions and all of its
subsidiaries, owners, officers and agents and all of their insurers listed as “Additional Insureds.”
(d) Prior to commencement of delivery of Goods and/or performance of Services, Seller shall submit to EnergySolutions a
certificate of insurance and ISO Endorsement on a form reasonably acceptable to EnergySolutions. Such certificate and ISO
Endorsement will be sent to the attention of Corporate Insurance Administrator, EnergySolutions, LLC, 423 West 300 South,
Ste. 200, Salt Lake City, UT 84101 or to email address subcerts@energysolutions.com. Seller’s name must be referenced in
the subject section of the email. As an alternative, Seller’s certificate of insurance may be submitted via Facsimile No. (801)
413-5686. If Seller's insurance policy expires during the performance of the Purchase Order, Seller must submit the renewal
certification and ISO Endorsement Form to EnergySolutions in the method previously outlined in this section. Seller’s
failure to provide EnergySolutions with its certificate of insurance and ISO Endorsement Form renewals will result in the
non-payment of Seller’s invoice(s) until such insurance documentation is received by EnergySolutions.
(e) Seller shall be held accountable for all insurance coverages, including those of its subcontractor(s).
(f) The Seller’s insurance carrier(s) must be authorized to do business in the State of delivery of Goods and/or the performance
of Services.
(g) EnergySolutions reserves the right to require additional coverage (at Seller’s expense) to that stated above.
(h) “Subcontractor” as used in this clause will include Seller’s subcontractors at any tier. Seller’s obligations for procuring and
maintaining insurance coverages are freestanding and are not affected by any other language in the Contract.
(i) Seller shall provide EnergySolutions 30 days’ advance written notice prior to the effective date of any cancellation or change
in the term or coverage of any of Seller’s required insurance; provided, however, such notice will not relieve Seller of its
obligations to procure and maintain the required insurance.
20. INTELLECTUAL PROPERTY
(a) Seller assigns, conveys and transfers to EnergySolutions without any further consideration each and every invention,
discovery, improvement, mask work, and patent relating to, resulting from, conceived, developed, or generated in
performance of Services under the Purchase Order, and upon request shall execute any required papers and furnish all
reasonable assistance to EnergySolutions to vest all right, title and interest in such inventions, discoveries, improvements,
mask works, and patents in EnergySolutions.
(b) All data, copyrights, reports, and works of authorship developed in performance of Services under the Purchase Order will be
the sole property of EnergySolutions and will be used by Seller solely in performing Services for EnergySolutions. To the
extent that any of the deliverable items may not, by operation of law, be works made for hire, Seller hereby assigns to
EnergySolutions ownership of such items and EnergySolutions shall have the right to obtain and hold in its own name
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patents, copyrights, registrations, and similar protection. Seller agrees to give EnergySolutions or its designees all assistance
reasonably required to perfect such rights.
(c) To the extent that any pre-existing inventions, technology, designs, works of authorship, mask works, technical information,
computer software, and other information or materials are used, included, or contained in the Services, are not owned by
EnergySolutions pursuant to this or a previous agreement with Seller, Seller grants to EnergySolutions an irrevocable,
nonexclusive, world-wide, royalty-free license to: (i) make, have made, sell, offer for sale, use, execute, reproduce, display,
perform, distribute (internally or externally) copies of, and prepare derivative works based upon, such pre-existing
inventions, technology, designs, works of authorship, mask works, technical information, computer software, and other
information or materials and derivative works thereof; and (ii) authorize others to do any, some or all of the foregoing.
(d) Goods and/or Services delivered under the Purchase Order such as operation and maintenance manuals will be delivered with
the right to copy for internal use and/or copy and deliver with the right to use by EnergySolutions’ Customers.
(e) All reports, memoranda or other materials in written form, including machine readable form, prepared by Seller pursuant to
the Purchase Order and furnished to EnergySolutions by Seller hereunder will become the sole property of EnergySolutions.
(f) Seller warrants that the Goods and/or Services performed or delivered under the Purchase Order will not infringe or
otherwise violate the intellectual property rights of any third party in the United States or any foreign country.
(g) Unless Seller has obtained EnergySolutions’ prior written consent, which EnergySolutions may withhold in its sole
discretion, Seller shall include in any Services performed or Goods delivered EnergySolutions, any software that incorporates
or embeds software in, or uses software in connection with, as part of, bundled with, or alongside any (1) open source,
publicly available, or “free” software, library or documentation, or (2) software provided under a license that (i) requires the
delivered software to be licensed for the purpose of making derivative works or be redistributable at no charge, or (ii)
obligates EnergySolutions to sell, loan, distribute, disclose or otherwise make available or accessible to any third party (A)
the delivered software, or any portion thereof, in object code and/or source code formats, or (B) any products incorporating
the delivered software, or any portion thereof, in object code and/or source code formats. Seller shall defend, indemnify, and
hold harmless EnergySolutions and its customers from and against any losses, costs, claims, causes of action, damages,
liabilities, and/or expenses (including attorneys’ fees, expenses of litigation and/or settlement, and court costs, collectively
“Damages”), relating to a breach of this subsection.
21. MAINTENANCE of RECORDS
(a) Seller shall maintain complete and accurate records in accordance with generally accepted accounting principles to
substantiate Seller’s charges under the Contract. Such records will include, but not be limited to, applicable time sheets, job
cards, phone bills, travel receipts and job summaries. Seller shall retain such records for three years from final close out of
each Purchase Order.
(b) EnergySolutions shall have access to such records, and any other records Seller is required to maintain under the Contract, for
the purpose of audit during normal business hours, upon reasonable notice for so long as such records are required to be
retained.
22. INDEMNIFICATION
Notwithstanding any other provision in the Contract to the contrary:
(a) Seller shall be responsible for and shall defend, indemnify and hold harmless EnergySolutions, its Customers and their
officers, employees, and agents from any Damages, for property damage or loss or personal injury to any person caused in
whole or in part by, or arising from, any act and/or omission of Seller, its officers, employees, agents, suppliers, or
subcontractors.
(b) Seller shall defend, indemnify and hold harmless EnergySolutions and its Customers from and against any actual or alleged
Damages which EnergySolutions or its Customers may sustain or incur in consequence of: (i) Seller’s failure to pay any
employee for the Services rendered under the Purchase Order, or (ii) any claims made by Seller’s personnel against
EnergySolutions.
(c) Seller shall defend, indemnify, and hold harmless EnergySolutions and its Customers from and against any Damages arising
out of any action by a third party that is based upon a claim that the Goods delivered and/or Services performed under the
Purchase Order infringe or otherwise violate the intellectual property rights of any person or entity.
23. SEVERABILITY and SURVIVABILITY
(a) Each clause, paragraph and sub-paragraph of the Contract is severable, and if one or more of them are declared invalid, the
remaining provisions of the Contract will remain in full force and effect.
(b) If the Contract is terminated, Seller shall not be relieved of those obligations contained in the Contract for the following
clauses: Applicable Laws; Electronic Contracting; Export Control; Independent Contractor Relationship and Seller
Personnel; Information of EnergySolutions; Insurance; Intellectual Property; Maintenance of Records; Release of
Information, EHSQS Requirements; and Warranty.
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24. AMENDMENT, WAIVERS, APPROVALS, and REMEDIES
(a) No amendment or modification of the Contract will be binding upon the Parties unless agreed to in writing and executed by
an authorized representative of each Party. The authorized representative for EnergySolutions shall be limited to any of its
directors, officers, managers and procurement representative.
(b) Failure by either Party to enforce any of the provisions of the Contract or applicable law will not constitute a waiver of the
requirements of such provisions or law, or act as a waiver of the right of a Party thereafter to enforce such provision or law.
(c) EnergySolutions approval of documents will not relieve Seller of its obligation to comply with the requirements of the
Contract.
(d) The rights and remedies of either Party in the Contract are cumulative and in addition to any other rights and remedies
provided by law or in equity.
25. NOTICES
All notices, requests, consents and official communications relating to the Contract shall be in writing and sent by personal
delivery, certified mail, or a recognized overnight commercial courier to the address set forth in the first paragraph (or to such
other address as either Party may designate from time to time by written notice). A Notice delivered personally or by courier will
be deemed effective on the day it is delivered. Notices sent by certified mail will be deemed effective three business days after
being sent. Notices can also be sent by facsimile or electronic mail and will be deemed delivered one business day following
transmission provided that the sender retains written confirmation of transmission. The facsimile transmission number for the
Parties is set forth below each Party’s respective signature below.
26. GRATUITIES / KICKBACKS
No gratuities (in the form of entertainment, gifts, or otherwise) for the purpose of obtaining or rewarding favorable treatment as a
supplier, and no kickbacks, will be offered or given by Seller to any employee of EnergySolutions. Violation of this provision
will be deemed a material default under the Contract for which no opportunity to cure will be available. Further, a breach of this
provision will, in EnergySolutions’ sole discretion, make Seller ineligible to provide Goods and/or Services to EnergySolutions in
the future.
27. GOVERNING LAW
The Contract will be governed by and construed in accordance with the laws of the State of Utah without regard to its conflicts of
laws provisions.
28. ASSIGNMENT
Any assignment of Seller’s rights or delegation of Seller’s obligations under the Contract will be void, unless prior written
consent is given by EnergySolutions. Nevertheless, Seller may assign rights to be paid amounts due, or to become due, to a
financing institution if EnergySolutions is promptly furnished a signed copy of such assignment reasonably in advance of the due
date for payment of any such amounts. Amounts assigned will be subject to setoff or recoupment for any present or future claims
of EnergySolutions against Seller. EnergySolutions shall have the right to make settlements and/or adjustments in price without
notice to any assignee financing institution.
29. DISPUTES
All disputes under the Contract that are not resolved by mutual agreement may be decided by recourse to an action at law or in
equity. Until final resolution of any dispute hereunder, Seller shall diligently proceed with the performance of the Purchase Order
as directed by EnergySolutions.
30. INDEPENDENT CONTRACTOR RELATIONSHIP and SELLER PERSONNEL
(a) Seller’s relationship to EnergySolutions will be that of an Independent Contractor and the Contract does not create an agency,
partnership, or joint venture relationship between EnergySolutions and Seller and their respective personnel. Personnel
supplied by Seller will be deemed employees of Seller and will not for any purposes be considered employees or agents of
EnergySolutions. Seller assumes full responsibility for the actions and supervision of its personnel while performing
Services. EnergySolutions assumes no liability for Seller personnel.
(b) Seller shall inform EnergySolutions if a former employee of EnergySolutions or its parent or any subsidiary will be assigned
to perform any Services or provide any Goods under the Purchase Order, and any such assignment will be subject to
EnergySolutions’ prior approval.
(c) Nothing contained in the Contract will be construed as granting to Seller or any personnel of Seller rights under any of
EnergySolutions’ benefit plans.
(d) Seller will ensure that its personnel assigned to perform Services or deliver Goods under the Purchase Order on
EnergySolutions’ or a Customer’s premises will comply with any on-premises rules, regulations and guidelines and will not:
(i) bring weapons of any kind onto EnergySolutions’ or a Customer’s premises; (ii) manufacture, sell, distribute, possess, use
or be under the influence of controlled substances or alcoholic beverages while on EnergySolutions’ or a Customer’s
premises; (iii) possess hazardous materials of any kind on EnergySolutions’ or a Customer’s premises without
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EnergySolutions’ prior written authorization; (iv) reside in any unauthorized areas; (v) conduct any non-EnergySolutions
related business activities (such as interviews, hirings, dismissals or personal solicitations) on EnergySolutions’ or a
Customer’s premises, (vi) send or receive non-EnergySolutions related mail through EnergySolutions’ or a Customer’s mail
systems; and (vii) sell, advertise or market any products or memberships, distribute printed, written or graphic materials on
EnergySolutions’ or a Customer’s premises without EnergySolutions’ prior written permission or as permitted by law.
(e) Seller shall notify its personnel that all persons, property, and vehicles entering, leaving, or while on EnergySolutions’ or a
Customer’s premises are subject to search.
(f) Seller shall promptly notify EnergySolutions of any breach of the provisions under this section, and shall provide a written
report of any accidents or security incidents involving loss of or misuse or damage to EnergySolutions’ or a Customer’s
intellectual or physical assets, and all physical altercations, assaults, or harassment.
(g) Seller must coordinate with EnergySolutions to gain access to EnergySolutions’ or a Customer’s premises.
(h) Seller shall ensure its personnel: (i) do not remove EnergySolutions’ or a Customer’s assets from EnergySolutions’ or a
Customer’s premises without EnergySolutions prior written authorization; (ii) use EnergySolutions’ or a Customer’s assets
only in the performance of Services or delivery of Goods; (iii) only connect with, interact with or use computer resources,
networks, programs, tools or routines that EnergySolutions designates as being necessary to perform Services or deliver
Goods; and (iv) do not share or disclose user identifiers, passwords, cipher keys or computer dial port telephone numbers to
any person or entity. EnergySolutions may periodically audit Seller’s data residing on EnergySolutions’ or a Customer’s
information assets.
(i) EnergySolutions may, at its sole discretion, have Seller remove any specified employee of Seller from EnergySolutions’
premises and request that such employee not be reassigned to perform Services or supply Goods at any EnergySolutions
premises.
(j) Seller shall provide EnergySolutions any information about Seller’s personnel that EnergySolutions is required by law to
obtain, including information on “leased employees” and “management services organization” as these terms are used in
Sections 414(m), (n), and (o) of the Internal Revenue Code.
31. COUNTERPARTS; ELECTRONIC CONTRACTING
The Parties acknowledge that the Contract is signed and transmitted electronically, and neither Party will contest the validity of
the Contract, or any acknowledgement thereof, on the basis that the Contract or acknowledgement contains an electronic
signature.
32. COMMUNICATION WITH ENERGYSOLUTIONS CUSTOMER
EnergySolutions shall be solely responsible for all liaison and coordination with any Customer, including the U.S. Government, as
it affects EnergySolutions’ contract with the Customer, and Seller will have no direct communication with the Customer without
EnergySolutions’ prior written consent.
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