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HomeMy WebLinkAboutFuller Engineering Co., LLC Goods and Services/IT/$83,360/CRAC Units for Datacenter ASACzBmmjtpoMzodi.NdHsbuibu4;29qn-Kbo35-3135 DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3 Fuller Engineering Co., LLC Information Systems Department - 2024 Appropriation #1115 0 44-631.00 Capital Lease Fund; P.O. #110781 Contract Not To Exceed $83,360.00 6. DISCLOSURE AND WARNINGS: If requested by City, Vendor shall promptly furnish to City, in such form and detail as City may direct, a list of all chemicals, materials, substances and items used in or during the provision of the Goods and Services provided hereunder, including the quantity, quality and concentration thereof and any other information relating thereto. At the time of the delivery of the Goods and Services provided hereunder, Vendor agrees to furnish to City sufficient written warning and notice (including appropriate labels on containers and packing) of any hazardous material utilized in or that is a part of the Goods and Services. 7. LIENS: Vendor shall not cause or permit the filing of any lien on any of City’s property. In the event any such lien is filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding, City shall have the right to pay such lien or obtain such bond, all at Vendor’s sole cost and expense. 8. DEFAULT: In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of this Agreement, including Vendor’s warranties; (b) fails to provide the Goods and Services as specified herein; (c) fails to make progress so as to endanger timely and proper provision of the Goods and Services and does not correct such failure or breach within five (5) business days (or such shorter period of time as is commercially reasonable under the circumstances) after receipt of notice from City specifying such failure or breach; or (d) becomes insolvent, is placed into receivership, makes a general assignment for the benefit of creditors or dissolves, each such event constituting an event of default hereunder, City shall have the right to (1) terminate all or any parts of this Agreement, without liability to Vendor; and (2) exercise all other rights and remedies available to City at law and/or in equity. 9. INSURANCE AND INDEMNIFICATION: Vendor shall procure and maintain in full force and effect during the term of this Agreement, with an insurer licensed to do business in the State of Indiana, such insurance as is necessary for the protection of City and Vendor from all claims for damages under any workers’ compensation, occupational disease and/or unemployment compensation act; for bodily injuries including, but not limited to, personal injury, sickness, disease or death of or to any of Vendor’s agents, officers, employees, contractors and subcontractors; and, for any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom. The coverage amounts shall be no less than those amounts set forth in attached Exhibit C. Vendor shall cause its insurers to name City as an additional insured on all such insurance policies, shall promptly provide City, upon request, with copies of all such policies, and shall provide that such insurance policies shall not be canceled without thirty (30) days prior notice to City. Vendor shall indemnify and hold harmless City from and against any and all liabilities, claims, demands or expenses (including, but not limited to, reasonable attorney fees) for injury, death and/or damages to any person or property arising from or in connection with Vendor’s provision of Goods and Services pursuant to or under this Agreement or Vendor’s use of City property. Vendor further agrees to indemnify, defend and hold harmless City and its officers, officials, agents and employees from all claims and suits of whatever type, including, but not limited to, all court costs, attorney fees, and other expenses, caused by any act or omission of Vendor and/or of any of Vendor’s agents, officers, employees, contractors or subcontractors in the performance of this Agreement. These indemnification obligations shall survive the termination of this Agreement. S:\\Contracts\\Departments\\IT - Information Systems\\2024\\Fuller Engineering Co., LLC Goods and Services.docx:1/22/2024 2:36 PM\] 2 DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3 Fuller Engineering Co., LLC Information Systems Department - 2024 Appropriation #1115 0 44-631.00 Capital Lease Fund; P.O. #110781 Contract Not To Exceed $83,360.00 10. GOVERNMENT COMPLIANCE: Vendor agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes which may be applicable to Vendor’s performance of its obligations under this Agreement, and all relevant provisions thereof are incorporated herein by this reference. Vendor agrees to indemnify and hold harmless City from any loss, damage and/or liability resulting from any such violation of such laws, orders, rules, regulations and codes. This indemnification obligation shall survive the termination of this Agreement. 11. NONDISCRIMINATION: Vendor represents and warrants that it and all of its officers, employees, agents, contractors and subcontractors shall comply with all laws of the United States, the State of Indiana and City prohibiting discrimination against any employee, applicant for employment or other person in the provision of any Goods and Services provided by this Agreement with respect to their hire, tenure, terms, conditions and privileges of employment and any other matter related to their employment or subcontracting, because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status and/or Vietnam era veteran status. 12. E-VERIFY: Pursuant to I.C. § 22-5-1.7 et seq., as the same may be amended from time to time, and as is incorporated herein by this reference (the “Indiana E-Verify Law”), Vendor is required to enroll in and verify the work eligibility status of its newly-hired employees using the E-Verify program, and to execute the Affidavit attached herein as Exhibit D, affirming that it is enrolled and participating in the E-Verify program and does not knowingly employ unauthorized aliens. In support of the Affidavit, Vendor shall provide the City with documentation indicating that it has enrolled and is participating in the E-Verify program. Should Vendor subcontract for the performance of any work under and pursuant to this Agreement, it shall fully comply with the Indiana E- Verify Law as regards each such subcontractor. Should the Vendor or any subcontractor violate the Indiana E-Verify law, the City may require a cure of such violation and thereafter, if no timely cure is performed, terminate this Agreement in accordance with either the provisions hereof or those set forth in the Indiana E- Verify Law. The requirements of this paragraph shall not apply should the E-Verify program cease to exist. 13. NO IMPLIED WAIVER: The failure of either party to require performance by the other of any provision of this Agreement shall not affect the right of such party to require such performance at any time thereafter, nor shall the waiver by any party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision hereof. 14. NON-ASSIGNMENT: Vendor shall not assign or pledge this Agreement, whether as collateral for a loan or otherwise, and shall not delegate its obligations under this Agreement without City’s prior written consent. 15. RELATIONSHIP OF PARTIES: The relationship of the parties hereto shall be as provided for in this Agreement, and neither Vendor nor any of its officers, employees, contractors, subcontractors and agents are employees of City. The contract price set forth herein shall be the full and maximum compensation and monies required of City to be paid to Vendor under or pursuant to this Agreement. 16. GOVERNING LAW; LAWSUITS: This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana, except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County, Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same. S:\\Contracts\\Departments\\IT - Information Systems\\2024\\Fuller Engineering Co., LLC Goods and Services.docx:1/22/2024 2:36 PM\] 3 DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3 Fuller Engineering Co., LLC Information Systems Department - 2024 Appropriation #1115 0 44-631.00 Capital Lease Fund; P.O. #110781 Contract Not To Exceed $83,360.00 17. SEVERABILITY: If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with same, and the remaining provisions of this Agreement shall remain in full force and effect. 18. NOTICE: Any notice provided for in this Agreement will be sufficient if itis in writing and is delivered by postage prepaid U.S. certified mail, return receipt requested, to the party to be notified at the address specified herein: If to City: City of Carmel AND City of Carmel Information Systems Department Office of Corporation Counsel st311 Ave NW One Civic Square Carmel, Indiana 46032 Carmel, Indiana 46032 If to Vendor: Fuller Engineering Co., LLC th4135West99 Street Carmel, Indiana 46032 Notwithstanding the above, notice of termination under paragraph 19 hereinbelow shall be effective if given orally, as long as written notice is then provided as set forth hereinabove within five (5) business days from the date of such oral notice. 19. TERMINATION: 19.1 Notwithstanding anything to the contrary contained in this Agreement, City may, upon notice to Vendor, immediately terminate this Agreement for cause, in the event of a default hereunder by Vendor and/or if sufficient funds are not appropriated or encumbered to pay for the Goods and Services to be provided hereunder. In the event of such termination, Vendor shall be entitled to receive only payment for the undisputed invoice amount representing conforming Goods and Services delivered as of the date of termination, except that such payment amount shall not exceed the Estimate amount in effect at the time of termination, unless the parties have previously agreed in writing to a greater amount. 19.2 City may terminate this Agreement at any time upon thirty (30) days prior notice to Vendor. In the event of such termination, Vendor shall be entitled to receive only payment for the undisputed invoice amount of conforming Goods and Services delivered as of the date of termination, except that such payment amount shall not exceed the Estimate amount in effect at the time of termination, unless the parties have previously agreed in writing to a greater amount. 19.3 The City may terminate this Agreement pursuant to Paragraph 11 hereof, as appropriate. 20. REPRESENTATIONS AND WARRANTIES The parties represent and warrant that they are authorized to enter into this Agreement and that the persons executing this Agreement have the authority to bind the party which they represent. 21. ADDITIONAL GOODS AND SERVICES Vendor understands and agrees that City may, from time to time, request Vendor to provide additional goods and services to City. When City desires additional goods and services from Vendor, the City shall notify Vendor of such additional goods and services desired, as well as the time frame in which same are to be provided. Only after City has approved Vendor’s time and cost estimate for the provision of such additional goods and services, has encumbered sufficient monies to pay for same, and has authorized Vendor, in writing, to provide S:\\Contracts\\Departments\\IT - Information Systems\\2024\\Fuller Engineering Co., LLC Goods and Services.docx:1/22/2024 2:36 PM\] 4 DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3 Fuller Engineering Co., LLC Information Systems Department - 2024 Appropriation #1115 0 44-631.00 Capital Lease Fund; P.O. #110781 Contract Not To Exceed $83,360.00 such additional goods and services, shall such goods and services be provided by Vendor to City. A copy of the City’s authorization documents for the purchase of additional goods and services shall be numbered and attached hereto in the order in which they are approved by City. 22. TERM Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 19 hereinabove, this Agreement shall be in effect from the Effective Date through December 31, 2024 and shall, on the first day of each January thereafter, automatically renew for a period of one (1) calendar year, unless otherwise agreed by the parties hereto. 23. HEADINGS All heading and sections of this Agreement are inserted for convenience only and do not form a part of this Agreement nor limit, expand or otherwise alter the meaning of any provision hereof. 24. BINDING EFFECT The parties, and their respective officers, officials, agents, partners, successors, assigns and legal representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations set forth in Agreement. 25. NO THIRD PARTY BENEFICIARIES This Agreement gives no rights or benefits to anyone other than City and Vendor. 26. DEBARMENT AND SUSPENSION 26.1 The Vendor certifies by entering into this Agreement that neither it nor its principals nor any of its subcontractors are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from entering into this Agreement by any federal agency or by any department, agency or political subdivision of the State of Indiana. The term “principal” for purposes of this Agreement means an officer, director, owner, partner, key employee or other person with primary management or supervisory responsibilities, or a person who has a critical influence on or substantive control over the operations of the Vendor. 26.2 The Vendor certifies that it has verified the state and federal suspension and debarment status for all subcontractors receiving funds under this Agreement and shall be solely responsible for any recoupment, penalties or costs that might arise from use of a suspended or debarred subcontractor. The Vendor shall immediately notify the City if any subcontractor becomes debarred or suspended, and shall, at the City’s request, take all steps required by the City to terminate its contractual relationship with the subcontractor for work to be performed under this Agreement. 27. IRAN CERTIFICATION Pursuant to I.C. § 5-22-16.5, the Vendor shall certify that, in signing this Agreement, it does not engage in investment activities within the Country of Iran. 28. ADVICE OF COUNSEL: The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain legal advice and assistance of counsel throughout the negotiation of this Agreement, and enter into same freely, voluntarily, and without any duress, undue influence or coercion. S:\\Contracts\\Departments\\IT - Information Systems\\2024\\Fuller Engineering Co., LLC Goods and Services.docx:1/22/2024 2:36 PM\] 5 DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3 DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3 2/7/2024 2/7/2024 2/7/2024 2/7/2024 Wednesday, November 29, 2023 Quote#: 538927 Morgan Rinehart City Of Carmel 10701 North College Ave, Suite A Carmel, IN 46280 Per your request, we are pleased to provide you with the following proposal: Furnish and Install (1) Liebert PDX, Air Cooled Cooling Systems to include the following: Model Number: PX018DA1C Nominal 18kW (5 Ton) Cooling Capacity 208 Voltage, 3 Phase, 60 Hz 1) 95°F Ambient Liebert Micro Channel Air-Cooled Condenser Model Number: MCS028E1YD Micro Channel Condenser Coil EC Fan 208 Volts 3 Phase 60 Hz Disconnect Switch Surge Suppression Device – shipped loose for field installation System Details: Downflow air discharge for raised floor applications Top Return with 18” Plenum Floorstand – 12” 14 gauge, welded frame, with Autophoretic coating. Variable Speed EC Fan Digital Scroll Compressor with variable capacity from 20% - 100% Designed for R-410A refrigerant Tilted Slab Evaporator coil with hydrophilic coating Exterior panels insulated & powder coated Locking Disconnect Infrared Humidifier Electric Reheat iCOM Controls with Large, Color Touchscreen Display Communication Interface thStreet Carmel, Indiana460324135West99 317.228.5800 Fax317.228-5810 800.628.2205 aconklin@fullerengr.com DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3 Smoke Sensor High Temperature Sensor 2” Filters, MERV8 Rating Installation to Include: Receive and Set Indoor and Outdoor Units Modify Raised Floor to accommodate new floorstand Run new Refrigerant Piping in existing pipe sleeves Insulate refrigerant piping as required Run Control Wiring between Indoor and Outdoor Units Run Condensate Drain line to underfloor drain Evacuate, leak test and charge system Add Unit to existing Unit to Unit Network All Electrical Work is EXCLUDED from this scope of work Services Included: One year parts and labor warranty Four year extended compressor warranty, parts only Check, test and start up service Total Net Cost including Freight $83,360.00 Terms & Conditions: Quotation Valid for 30 days Indiana State Sales Tax is NOT included and will be added if applicable Information in this quote is considered confidential between Fuller Engineering and recipient Terms are Net 30 Days, subject to approval Standard Terms & Conditions apply (see attached) Multiple Purchase Orders may be required for this order Please address Purchase Orders to: Fuller Engineering Co., LLC th4135West99Street Carmel, IN 46032 Thank you for the opportunity of quoting on this project. Should you have any questions, please call me at 317-228-5816. Sincerely, AdamConklin Adam Conklin Sales Engineer DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3 Vertiv Corporation warranties that are made by manufacturers and suppliers of such Resale Products. EXCEPT AS TERMS AND CONDITIONS OF SALE SPECIFIED ABOVE, RESALE PRODUCTS FURNISHED HEREUNDER ARE FURNISHED AS-IS, WHERE-IS, WITH NO WARRANTY WHATSOEVER. THE WARRANTY SET FORTH IN THIS SECTION Vertiv Corporation is herein referred to as the "Seller" and the customer or person or entity purchasing 5AND THE WARRANTY SET FORTH IN SECTION 8 ARE THE SOLE AND EXCLUSIVE WARRANTIES goods and/or services ("Goods") and/or parts required for services (ÐPartsÑ) or licensing software and/or GIVEN BY SELLER WITH RESPECT TO THE GOODS AND/OR SOFTWARE AND ARE IN LIEU OF firmware, which are preloaded, or to be used with Goods ("Software") from Seller is referred to as the AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF Buyer." These Terms and Conditions, any price list or schedule, quotation, acknowledgment, SellerÓs LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR scope or statement of work, or invoice from Seller relevant to the sale of the Goods, Parts and licensing of APARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO Software by Seller, and all associated terms, conditions and documents incorporated by specific reference SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT SELLER'S herein or therein, constitute the complete and exclusive statement of the terms of the agreement PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER'S ÐAgreementÑ) governing the sale of Goods, Parts, and/or license of Software by Seller to Buyer. Any USE OR PURPOSE. SELLER'S WARRANTY EXTENDS ONLY TO PURCHASERS WHO BUY FOR discrepancies between the terms of the above referenced documents shall be resolved by Seller. SellerÓs INDUSTRIAL OR COMMERCIAL USE. This warranty does not extend to any losses or damages due to acceptance of BuyerÓs purchase order is expressly conditional on BuyerÓs assent to all of SellerÓs terms misuse, accident, abuse, neglect, normal wear and tear, negligence (other than Seller's), unauthorized and conditions of sale, including terms and conditions that are different from or additional to the terms and modification or alteration, use beyond rated capacity, unsuitable power sources or environmental conditions of BuyerÓs purchase order. Buyer's acceptance of the Goods, Parts, and/or Software will conditions, improper installation, repair, handling, maintenance or application or any other cause not the manifest Buyer's assent to the terms of this Agreement. Seller reserves the right in its sole discretion to fault of Seller. To the extent that Buyer or its agents have supplied specifications,information, refuse orders. representation of operating conditions or other data to Seller in the selection or design of the Goods and/or Software and the preparation of Seller's quotation, and/or scope of work, and in the event that actual 1. PRICES: Unless otherwise specified in writing by Seller, the price quoted or specified by Seller for the operating conditions or other conditions differ from those represented by Buyer, any warranties or other Goods, Parts and/or Software shall remain in effect for thirty (30) days after the date of Seller'squotation, provisions contained herein that are affected by such conditions shall be null and void. Buyer assumes all SellerÓs scope of work or acknowledgment of Buyer'sorder for the Goods, whichever occurs first, provided other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or an unconditional authorization from Buyer for the shipment or performance of the Goods and/or Parts, resulting from the use of Goods, Parts, and/or Software, either alone or in combination with other and/or Software is received and accepted by Seller within such time period. Ifsuch authorization is not products/components. received by Seller within such thirty (30) day period, Seller shall have the right to change the price for the Goods, Parts and/or Software to Seller's price for the Goods, Parts, and/or Software at the time of SellerÓs 6. LIMITATION OF REMEDY AND LIABILITY: THE SOLE AND EXCLUSIVE REMEDY FOR BREACH shipment or performance thereof. All prices and licensee fees are exclusive of taxes, transportation and OF ANY WARRANTY HEREUNDER (OTHER THAN THE WARRANTY PROVIDED UNDER SECTION 8) insurance, which are to be borne by Buyer. Seller reserves the right to correct any obvious errors in SHALL BE LIMITED TO REPAIR, CORRECTION OR REPLACEMENT, OR REFUND OF THE specifications or prices and, in the event of a force majeure event, make equitable adjustments in SellerÓs PURCHASE PRICE UNDER SECTION 5. SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED price for the Goods, Parts, and/or Software prior to SellerÓs shipment or performance thereof. Unless BY DELAY IN PERFORMANCE AND THE REMEDIES OF BUYER SET FORTH IN THIS AGREEMENT otherwise specified by Seller, Parts that are required for the performance of services will be furnished at ARE EXCLUSIVE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF SellerÓs then-prevailing prices. A service charge of $19.99 will be added to all orders which, excluding ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, shipping charges, taxes, and insurance, do not meet the minimum order value of $750.00. The service OTHER TORT OR OTHERWISE), SHALL SELLER'S LIABILITY TO BUYER AND/OR ITS CUSTOMERS charge amount and/or minimum order value may be changed by Seller at any time, without notice. EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS, PARTS, AND/OR SOFTWARE PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES 2. TAXES: Any current or future tax, duty, tariff or governmental charge (or increase in same) affecting THAT SELLER'SLIABILITY TO BUYER AND/OR ITS CUSTOMERS SHALL NOT EXTEND TO INCLUDE Seller's costs of production, sale, services or delivery or shipment of Goods Parts, and/or Software, or INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. The term "consequential damages"shall which Seller is otherwise required to pay or collect in connection with the sale, purchase, delivery, include, but not be limited to, loss of anticipated profits, business interruption,loss of use, revenue, performance, storage, processing, use or consumption of Goods, Parts, and/or Software, shall be for reputation and data, costs incurred, including without limitation, for capital, fuel,power and loss or damage Buyer'saccount and shall be added to the price or billed to Buyer separately, at SellerÓs election. to property or equipment. It is expressly understood that any technical advice furnished by Seller with respect to the use of the Goods, Parts and/or Software is given without charge, and Seller assumes no 3. TERMS OF PAYMENT: Unless otherwise specified by Seller, terms are net thirty (30) days from date of obligation or liability for the advice given, or results obtained, all such advice being given and accepted at Seller'sinvoice in U.S. currency. Seller shall have the right, among other remedies, either to terminate this Buyer's risk. Agreement or to suspend further performance under this and/or other agreements with Buyer in the event Buyer fails to make any payment when due, which other agreements Buyer and Seller hereby amend 7. INSURANCE: Seller shall maintain the following insurance or self-insurance coverage:WorkerÓs accordingly. Buyer shall be liable for all expenses, including attorneys' fees, relating to the collection of Compensation in accordance with the statutory requirements of the state in which the work is performed. past due amounts. If any payment owed to Seller is not paid when due, it shall bear interest, at a rate to be EmployerÓs Liability with a limit of liability of $2,000,000 per occurrence for bodily injury by accident or determined by Seller, which shall not exceed the maximum rate permitted by law, from the date on which it bodily injury by disease. Commercial General Liability (CGL) for bodily injury and property damage with a is due until it is paid. Seller may preserve its interests in payment by enforcing any applicable mechanicÓs, limit of $2,000,000 per occurrence and per location aggregate. Automobile Liability insurance that covers labor, construction or similar lien rights. Should Buyer'sfinancial responsibility become unsatisfactory to usage of all owned, non-owned and leased vehicles and which is subject to a combined single limit per Seller, cash payments or security satisfactory to Seller may be required by Seller for future deliveries or occurrence of $2,000,000. Automobile Liability insurance includes Contractual Liability, but no special performance of Goods, Parts, and/or Software. If such cash payment or security isnot provided, in endorsements. Buyer expressly acknowledges and agrees that Seller has set its prices and entered into addition to Seller's other rights and remedies, Seller may discontinue deliveries or performance. Buyer this Agreement in reliance upon the limitations of liability, insurance coverage,and other terms and hereby grants Seller a security interest in all Goods, Parts, and/or Software sold to Buyer by Seller, which conditions specified herein, which allocate the risk between Seller and Buyer and form abasis of this security interest shall continue until all such Goods, Parts, and/or Software are fully paid for, and Buyer, bargain between the parties. upon Seller'sdemand, will execute and deliver to Seller such instruments as Seller requests to protect and perfect such security interest. As permitted by law, all purchases paid by credit card shall be charged a 8. PATENTS AND COPYRIGHTS: Subject to the limitations of the second paragraph of Section 6 and any 2.0% usage surcharge of the invoice total, for fees paid by Seller to accept credit card transactions. and all associated terms, conditions and documents incorporated by specific reference by Seller, Seller warrants that the Goods and/or Software sold, except as are made specifically for Buyer according to 4. SHIPMENT AND DELIVERY: While Seller will use all reasonable commercial efforts to maintain the Buyer's specifications, do not infringe any valid U.S. patent or copyright in existence as of the date of delivery date(s) and/or performance dates acknowledged or quoted by Seller, all shipping dates and/or shipment. This warranty is given upon the condition that Buyer promptly notify Seller of any claim or suit performance dates are approximate and not guaranteed. Seller reserves the right to make partial involving Buyer in which such infringement is alleged and cooperate fully with Seller and permit Seller to shipments. Seller, at its option, shall not be bound to tender delivery of any Goods, Parts, and/or Software control completely the defense, settlement or compromise of any such allegation of infringement. Seller's for which Buyer has not provided shipping instructions and other required information. If the shipment or warranty as to utility patents only applies to infringement arising solely out of BuyerÓs operation according performance of the Goods, Parts, and/or Software is postponed or delayed by Buyer for any reason, Buyer to Seller's specifications and instructions of such Goods and/or Software. In the event (i) such Goods agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom. and/or Software are held to infringe such a U.S. patent or copyright in such suit, and the use of such For sales in which the end destination of the Goods, Parts, and/or Software is outside of the United States Goods and/or Software is enjoined, or (ii) a compromise or settlement is made by Seller, Seller shall have except for those international sales to SellerÓs affiliated companies), risk of loss and legal title to the the right, at its option and expense, to procure for Buyer the right to continue using such Goods and/or Goods, Parts, and/or Software shall transfer to Buyer immediately after the Goods, Parts, and/or Software Software, or replace them with non-infringing Goods and/or Software, or modify same to become non- have passed beyond the territorial limits of the United States. For international sales to SellerÓs affiliated infringing, or grant Buyer a credit for the depreciated value of such Goods and/or Software and accept companies, all shipments of Goods, Parts, and/or Software are made on aDelivered at Place (DAP) basis, return of them. In the event of the foregoing, Seller may also, at its option,cancel the agreement as to per Incoterms 2020, with freight charges from SellerÓs facility to destination terminal invoiced to buyer future deliveries of such Goods and/or Software, without liability. Except as otherwise provided herein, either on a Prepaid or PPD/Add basis, as agreed to by Seller and Buyer. All other shipments of Goods, Seller or applicable third party licensor to Seller maintains all right, title and interest in and to the Parts, and/or Software are made on an Ex Works (EXW) SellerÓs Shipping Point basis, per Incoterms intellectual property in the Goods, Parts, and/or Software. 2020, with Seller responsible to load goods on BuyerÓs nominated vehicle. Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shall be submitted by Buyer directly to the 9. EXCUSE OF PERFORMANCE: Seller shall not be liable for delays in performance or for non- carrier. Notwithstanding the above, risk of loss and legal title to Parts shall transfer to Buyer (i) upon performance due to acts of God; acts of Buyer; war; viral outbreaks, disease,pandemic, widespread delivery by the Seller, or (ii) at the time Parts are placed in storage due to BuyerÓs delay or postponement. sickness, or epidemic; fire; flood; weather; sabotage; strikes or labor disputes; civil disturbances or riots; Shortages or damages must be identified and signed for at the time of delivery. Requests for changes in governmental requests, restrictions, allocations, laws, regulations, orders or actions; unavailability of or quoted transportation modes will not be made or accepted on orders already processed unless otherwise delays in transportation; unavailability of or delays in the supply of materials,components, parts or labor mutually agreed upon by Seller and Buyer. Requests for changes in quoted transportation modes to required for the design and/or manufacture of Goods, Software or the performance by Seller hereunder; orders already accepted by Seller will be subject to new freight terms and billed at the price in effect at the default of suppliers; or unforeseen circumstances, acts or omissions of Buyer, or any events or causes time of the request for change. Any request for changes to quoted transportation modes must be beyond Seller'sreasonable control. Deliveries or other performance may be suspended for an appropriate submitted in writing to Seller and are subject to SellerÓs acceptance and adjustment in freight price. The period of time or canceled by Seller upon notice to Buyer in the event of any of the foregoing, but the transportation costs quoted by Seller may be changed by Seller without notice in order to reflect SellerÓs balance of this Agreement shall otherwise remain unaffected as a result of the foregoing. If Seller prices at the time of shipment and will reflect any market increase in transportation costs. If a price for determines that its ability to supply the total demand for the Goods, Parts,and/or Software, or to obtain delivery has been quoted, any changes at the destination for transportation modes, spotting, switching, material used directly or indirectly in the manufacture of the Goods, Parts, and/or Software, is hindered, handling, storage and other accessorial services and demurrage shall be borne by the customer, and any limited or made impracticable due to causes set forth in this paragraph, Seller may delay or cancel related increase in transportation charges shall be added to the quoted price. performance, make equitable adjustments in SellerÓs price for the Goods, Parts, and/or Software, and/or allocate its available supply of the Goods, Parts, Software, and/or such material (without obligation to 5. LIMITED WARRANTY: Subject to the limitations of Section 6, Seller's standard warranty that is acquire other supplies of any such Goods, Parts, Software, or material) among its purchasers on such applicable to the Goods and/or Software at the time of purchase is the only warranty applicable to the sale basis as Seller determines to be equitable without liability for any failure of performance which may result of Seller's Goods and/or Software and its terms, conditions and limitations are incorporated by reference therefrom. herein. Seller warrants that it will perform the services as described in these terms and conditions and will exercise all reasonable skill, care and due diligence in the performance of the services. Seller warrants 10. CANCELLATION: Buyer may cancel orders only upon reasonable advance written notice and upon that all services performed shall be free from faulty workmanship for a period of thirty (30) days from payment to Seller of Seller's cancellation charges which include, among other things, all costs and completion of services. Thermal Solution Components, including but not limited to, fans, air-to-air heat expenses incurred, and to cover commitments made by the Seller, and a reasonable profit thereon. exchangers, air conditioners, emergency DC vent systems and filtered thermal vent systems are Seller'sdetermination of such cancellation charges shall be conclusive. warranted to be free from defects in material and workmanship for a period of twelve (12) months from date of shipment, or manufacturerÓs pass through warranty, whichever is longer, provided the following 11. CHANGES: Buyer may request changes or additions to the Goods, Parts, and/or Software consistent conditions are met: (i) Semi-annual preventive maintenance logs are maintained by Buyer and such logs with Seller's specifications and criteria. In the event such changes or additions are accepted by Seller, are available to Seller upon request; and (ii) Input voltage to the air conditioner unit does not vary by Seller may revise the price, license fees, and dates of delivery and/or performance dates. Seller reserves greater than +/-10%; and (iii) in the event of accidental or intentional shut-off, a Thermal Solution the right to change designs and specifications for the Goods, Parts, and/or Software without prior notice to Component will not be restarted for at least five (5) minutes; and (iv) the refrigerant specified on the unit Buyer, except with respect to Goods, Parts, and/or Software being made to order for Buyer. Seller shall nameplate label will be the only refrigerant utilized in the air conditioner unit; and, (v) Buyer complies with have no obligation to install or make such change in any Goods, Parts,and/or Software manufactured all installation, operations and maintenance instructions provided by Seller. Goods, Parts and/or Software prior to the date of such change. purchased by Seller from athird party for resale or license to Buyer ("Resale Products") shall carry only the warranty extended by the original manufacturer. To the extent assignable, Seller assigns to Buyer any Vertiv Terms and Conditions, August 2021 SL-70604_REVD_8-21 DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3 12.NUCLEAR/MEDICAL: GOODS, PARTS, AND SOFTWARE SOLD HEREUNDER ARE NOT FORSeller unless made in writing and signed on its behalf by a duly authorized representative of Seller. No USE IN CONNECTION WITH ANY NUCLEAR, MEDICAL, LIFE-SUPPORT AND RELATEDconditions, usage of trade, course of dealing or performance, understanding or agreement purporting to APPLICATIONS. Buyer accepts Goods, Parts, and Software with the foregoing understanding, agrees tomodify, vary, explain, or supplement this Agreement shall be binding unless hereafter made in writing and communicate the same in writing to any subsequent purchasers or users and to defend, indemnify andsigned by the party to be bound, and no modification or additional terms shall be applicable to this hold harmless Seller from any claims, losses, suits, judgments and damages, including incidental andAgreement by Seller's receipt, acknowledgment, or acceptance of purchase orders, shipping instruction consequential damages, arising from such use, whether the cause of action be based in tort, contract orforms, or other documentation containing terms at variance with or in addition to those set forth herein. otherwise, including allegations that the SellerÓs liability is based on negligence or strict liability. Any such modifications or additional terms are specifically rejected and deemed amaterial alteration hereof. If this document shall be deemed an acceptance of a prior offer by Buyer, such acceptance is 13. ASSIGNMENT: Buyer shall not assign its rights or delegate its duties hereunder or any interest herein expressly conditional upon BuyerÓs assent to any additional or different terms set forth herein. Seller without the prior written consent of Seller, and any such assignment, without such consent, shall be void. reserves the right to subcontract services to others. No waiver by either party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a continuing 14.SOFTWARE: Notwithstanding any other provision herein to the contrary, Seller or applicable thirdwaiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in ed by the party to be bound. All typographical or clerical errors made by Seller in anypartylicensortoSellershallretainallrightsofownershipandtitleinitsrespectiveSoftware, includingwriting and sign without limitation all rights of ownership and title in its respective copies of such Software. Except asquotation, acknowledgment or publication are subject to correction. The validity,performance, and all otherwise provided herein, Buyer is hereby granted a nonexclusive, non-transferable royalty free license to other matters relating to the interpretation and effect of this Agreement shall be governed by the law of the use the Software incorporated into the Goods solely for purposes of Buyer properly utilizing such Goodsstate of Ohio without regard to its conflict of laws principles. Buyer and Seller agree that the proper venue purchased from Seller. All other Software shall be furnished to, and used by, Buyer only after execution of for all actions arising in connection herewith shall be only in Ohio and the parties agree to submit to such Seller's (or the licensorÓs) applicable standard license agreement, the terms of which are incorporatedjurisdiction. No action, regardless of form, arising out of transactions relating to this contract, may be herein by reference. brought by either party more than two (2) years after the cause of action has accrued. The U.N. Convention on Contracts for the International Sales of Goods shall not apply to this agreement. 15. TOOLING: Tool, die, and pattern charges, if any, are in addition to the price of the Goods and are due and payable upon completion of the tooling. All such tools, dies and patterns shall be and remain the25.DATA COLLECTION AND USE: By using the Goods, Parts and/or Software, Buyer grants Seller, its property of Seller. Charges for tools, dies, and patterns do not convey to Buyer, title, ownership interest in, affiliates, subsidiaries, and service providers, anon-exclusive, irrevocable,royalty free, worldwide right or rights to possession or removal, or prevent their use by Seller for other purchasers, except as otherwise and license to collect, compile, retain, use, reproduce, and create derivative works of, your non-personalinformationexpresslyprovidedbySellerandBuyerinwritingwithreferencetothisprovision. and data, which includes without limitation, all data, materials, reports, text, sound, video,image files, 16.DOCUMENTATION: Seller shall provide Buyer with that data/documentation which is specificallysoftware or any other information (ÐService DataÑ) that isprovided by, or on behalf of,Buyer, or collected identified in Seller'squotation. If additional copies of data/documentation are to be provided by Seller, itor compiled by Seller, its affiliates, subsidiaries, or service providers through the Goods, Parts, and/or shall be provided to Buyer at Seller's applicable prices then in effect. Software. Seller, its affiliates, subsidiaries, and service providers may collect, compile, retain, use, reproduce, and create derivative works of Service Data: (i) to provide services, support, and maintenance; 17. INSPECTION/TESTING: Buyer, at its option and expense, may observe the inspection and testing by (ii)to develop and improve products, software, and services; and (iii) for scientific and technical research Seller of the Goods and/or Software for compliance with Seller's standard test procedures prior toand marketing purposes. Buyer is solely responsible for the Service Data, and Buyer will secure and aintain all rights necessary for Seller, its affiliates, subsidiaries, and service providers to process and useshipment, which inspection and testing shall be conducted at Seller's plant at such reasonable time as ism specified by Seller. Any rejection of the Goods and/or Software must be made promptly by Buyer beforeService Data as described in this paragraph without violating the rights of any third party or otherwise shipment. Tests shall be deemed to be satisfactorily completed and the test fully met when the Goodsobligating Seller, its affiliates, subsidiaries, and service providers to Buyer or any third party. The Service and/or Software meet Seller's criteria for such procedures. If Buyer does not inspect the Goods and/orData will be aggregated with other information, materials, or data collected or compiled by, or provided to, Seller, its affiliates, subsidiaries, or service providers and anonymized, such that the Service Data will notSoftwareatSeller'splant as provided herein, Buyer shall have ten (10) days from (i) the date of delivery of Goods, Parts, and/or Software and (ii) from the date of completion of each portion of the services tointentionally reveal BuyerÓs identity. In accordance with applicable law, Service Data may be transferred, inspect the Goods, Parts, and/or Software, and in the event of any non-conformity, Buyer must give written transmitted, or distributed to, stored, and processed in, cloud computing environments in the United States notice to Seller within said period stating why the Goods, Parts, and/or Software are not conforming.or any other country in which Seller, its affiliates, subsidiaries, or service providers maintain operations. By using the Goods, Parts, and/or Software, Buyer agrees to such use, transfer, transmission, distribution, Failure by Buyer to give such notice constitutes unqualified acceptance of the Goods, Parts, and/or Software. BuyerÓs sole remedy for non-conforming services shall be correct performance of servicesstorage, and processing of the Service Data. Seller, its affiliates, subsidiaries, and service providers will incorrectly performed by Seller. retain Service Data for as long as is necessary for Seller and its affiliates and subsidiaries business purposes in accordance with applicable law. The rights and licenses granted herein to SellerÓs service providers shall only be granted to the extent service providers are providing goods and services on18.RETURNED GOODS: Advance written permission to return Goods, Parts, and/or Software must be obtained from Seller in accordance with SellerÓs then current Return Material Authorization (RMA)SellerÓs and its affiliates and subsidiaries behalf. procedures and a return authorization number issued. Such Goods, Parts, and/or Software must be (i)26.PRIVACY: Seller will collect and process personal data of those employed by or otherwise affiliated current, unused, catalogued Goods, Parts, and/or Software, still in original packaging (ii) free of all liens,with Buyer in accordance with Seller's "Privacy Notice for Customers and Suppliers ÎCalifornia" available here www.vertiv.com/ca-privacy (the ÐNoticeÑ), which Notice the Buyer hereby acknowledges havingencumbrances, or other claims, and (iii) shipped, transportation prepaid, to SellerÓs specified location. Returns made without proper written permission will not be accepted by Seller. Seller reserves the right to received, read, and understood. In the event of any queries or concerns with its contents, Buyer must inspect Goods, Parts, and/or Software prior to authorizing return. contact Seller at the contact details provided in the Notice prior to entering into this Agreement or the commencement of performance hereunder, in failure of which, the terms of the Notice will be deemed 19. BILLABLE SERVICES: Additional charges will be billed to Buyer at SellerÓs then prevailing labor rates accepted and consented to in their entirety. and Parts prices for any of the following: a) any services not specified in SellerÓs quotation, SellerÓs order acknowledgement, SellerÓs scope of work, or other documents referenced herein and therein; b) any27. ADDITIONAL SERVICE CONDITIONS: The Buyer shall furnish to Seller, at no cost, suitable working space, storage space, adequate heat, telephone, light, ventilation, regulated electric power and outlets forservicesperformedattimesotherthanSellerÓsnormalservicehours; c) if timely and reasonable site and/or equipment access isdenied the Seller service representative; d) if it is necessary, due to localtesting purposes. The facilities shall be within a reasonable distance from where the Goods are to be circumstances, to use union labor or hire an outside contractor, Seller service personnel will provideprovided. Seller and its representatives shall have full and free access to the equipment in order to provide supervision only and the cost of such union or contract labor will be charged to Buyer; (e) if service orthe necessary Goods. Buyer authorizes Seller to send a service technician or an authorized agent to access any site requested by Buyer to perform services, including services on different scopes of workrepairisnecessarytoreturnequipmenttoproperoperatingconditionasaresultofotherthanSeller (i) maintenance, repair, or modification (including, without limitation, changes in specifications orand equipment as requested by Buyer. Buyer shall provide the means to shut-off and secure electric incorporation of attachments or other features), (ii) misuse or neglect, (including, without limitation, failure power to the equipment and provide safe working conditions. Seller is under no obligation to remove or to maintain facilities and equipment in a reasonable manner), (iii) failure to operate equipment indispose of Parts or equipment unless specifically agreed upon in SellerÓs scope of work. Buyer shall immediately inform Seller, in writing, at the time of order placement and thereafter, of any unsafe oraccordancewithapplicablespecifications, and (iv) catastrophe, accident, or other causes external to equipment; (f) SellerÓs performance is made more burdensome or costly as a result of BuyerÓs failure tohazardous substance or condition at the site, including, but not limited to, the presence of asbestos or comply with its obligations herein, or (g) any additional obligations or requirements, including but notasbestos-containing materials, and shall provide Seller with any applicable Material Data Safety Sheets limited to those related to insurance requirements, service delivery, building entry or technical training. regarding the same. Any losses, costs, damages, claims and expenses incurred by Seller as aresult of BuyerÓs failure to so advise Seller shall be borne by Buyer. Seller, in its sole discretion and without cost or 20.DRAWINGS: Seller'sdocumentation, prints and drawings (including without limitation, the underlyingpenalty, reserves the right to cancel its performance under this Agreement or any order immediately upon technology) furnished by Seller to Buyer in connection with this Agreement are the property of Seller andwritten notice to Buyer following Seller discovery of unsafe or hazardous site substance or condition or any Seller retains all rights, including without limitation, exclusive rights of use, licensing and sale. Possession other circumstance altering SellerÓs performance hereunder. Buyer shall appoint a representative familiar with the site and the nature of SellerÓs performance to be accessible at all times that Seller personnel areofsuchprintsordrawingsdoesnotconveytoBuyeranyrightsorlicense, and Buyer shall return all copies in whatever medium) of such prints or drawings to Seller immediately upon request therefor.at the site. Seller shall not be liable for any expenses incurred by Buyer in removing, replacing or Notwithstanding the foregoing, Buyer may use the documentation, prints and drawings in connection with refurbishing any Buyer equipment or any part of BuyerÓs building structure that restricts Seller access. the use of the Goods, Parts, and/or Software.Buyer personnel shall cooperate with and provide all necessary assistance to Seller. Seller shall not be liable or responsible for any work performed by Buyer. 21. BUYER SUPPLIED DATA: To the extent that Seller has been provided by, or on behalf of, Buyer any specifications, description of operating conditions or other data and information in connection with the28. INDEMNITY: Each party shall indemnify and hold the other party harmless from loss, damage, liability selection or design of the Goods, Parts, and/or Software, and/or the provision of services, and the actual or expense resulting from damage to personal property of a third party, or injuries, including death, to third parties to the extent caused by a negligent act or omission of the party providing indemnification or thatoperatingconditionsorothercircumstancesdifferfromthoseprovidedbyBuyerandrelieduponbySeller, any warranties or other provisions contained herein which are affected by such conditions shall be null and partyÓs subcontractors, agents or employees during performance of services hereunder. Such void. indemnification shall be reduced to the extent damage or injuries are attributable to others and in no event shall the indemnifying party be obligated to indemnify or insure the other party for the indemniteeÓs own fault or negligence. The indemnifying party shall defend the other party in accordance with and to the22. EXPORT/IMPORT: Buyer agrees that all applicable import and export control laws, regulations, orders and requirements, including without limitation those of the United States and the European Union, and the extent of the above indemnification, provided that the indemnifying party is:i) promptly notified by the jurisdictions in which the Seller and Buyer are established or from which Goods, Parts, Software, andother party, in writing, of any claims, demands or suits for such damages or injuries;ii) given all services may be supplied, will apply to their receipt and use. In no event shall Buyer use, transfer, release, reasonable information and assistance by the other party; iii) given full control over any resulting negotiation, arbitration or litigation, including the right to choose counsel and settle claims, or theimport, export, Goods, Parts, or Software in violation of such applicable laws, regulations, orders or requirements. indemnifying partyÓs obligations herein shall be deemed waived. 23.NON-SOLICITATION: Buyer shall not solicit, directly or indirectly, or employ any employee of SellerCOPYRIGHT 2021 Vertiv Group Corp. All rights reserved. Vertiv© and the Vertiv logo are trademarks or registered trademarks of Vertiv Group Corp. All other names and logos referred to are trade names, during the period any Goods are being provided to Buyer and for a period of one (1) year after the last provision of Goods. trademarks or registered trademarks of their respective owners. While every precaution has been taken to ensure accuracy and completeness here, Vertiv Group Corp. assumes no responsibility, and disclaims all 24.GENERAL PROVISIONS: This Agreement supersedes all other communications, negotiations andliability, for damages resulting from use of this information or for any errors or omissions.Specifications, rebates and other promotional offers are subject to change at VertivÓs sole discretion upon notice. prior oral or written statements regarding the subject matter of this Agreement. No change, modification, rescission, discharge, abandonment, or waiver of these terms and conditions shall be binding upon the Vertiv Terms and Conditions, August 2021 SL-70604_REVD_8-21 DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3 EXHIBIT B Invoice Date: Name of Company: Address & Zip: Telephone No.: Fax No.: Project Name: Invoice No. Purchase Order No: Goods Services Person Providing Goods/Services Date Goods/ Service Provided Goods/Services Provided Describe each good/service separately and in detail) Cost Per Item Hourly Rate/ Hours Worked Total GRAND TOTAL Signature Printed Name DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3 EXHIBIT C INSURANCE COVERAGES Worker’s Compensation & Disability Statutory Limits Employer’s Liability: Bodily Injury by Accident/Disease: $100,000 each employee Bodily Injury by Accident/Disease: $250,000 each accident Bodily Injury by Accident/Disease: $500,000 policy limit Property damage, contractual liability, products-completed operations: General Aggregate Limit (other than Products/Completed Operations): $500,000 Products/Completed Operations: $500,000 Personal & Advertising Injury Policy Limit: $500,000 Each Occurrence Limit: $250,000 Fire Damage (any one fire): $250,000 Medical Expense Limit (any one person): $ 50,000 Comprehensive Auto Liability (owned, hired and non-owned) Bodily Single Limit: $500,000 each accident Injury and property damage: $500,000 each accident Policy Limit: $500,000 Umbrella Excess Liability Each occurrence and aggregate: $500,000 Maximum deductible: $ 10,000 DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3 DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3 DocuSign Envelope ID: C4DA2F55-F613-4B86-99AF-C87EFB63BAD3