Exhi
bit A
Preventative Maintenance Services
Tesla shall provide the following Preventative Maintenance Services, with the following frequency, during the Term, in accordance with this Agreement.
These Preventative Maintenance Services cover the System only, and not the remainder of any microgrid or power generating or conditioning facility of which the System forms part.
If the Service Term concludes within the following Operating Year, Tesla will only perform Annual Maintenance for Preventative Maintenance Services and Tesla shall not be obligated to perform the 5-Yearly Maintenance or 10 - Yearly Maintenance.
Frequency: Preventative Maintenance Services for Megapacks:
Annual Maintenance:
General Walkaround – Inspect the following:
1. Anchor torque marks
2. Drain Valve
3. Fascia Covers
4. Door locks
5. Enclosure cleanliness & integrity – touch up paint or clean as needed
6. Exposure clearances as specified in the Site Design and Installation Manual
7. Grade conditions as specified in the Site Design and Installation Manual Bay Checks
1. Inspect Door Latches, replacement in kind if damaged
2. Inspect Door Gaskets, replacement in kind if damaged
3. Inspect Door Grounding Conductors, replacement in kind if damaged
4. Inspect Door Switch, replacement in kind if damaged
5. Harness inspection or replacement in kind if damaged (protective sleeve failure, rodents, etc.)
6. Thermal system inspection, service as needed
7. Torque checks
8. Check for moisture
Thermal Roof
1. Coolant level check, fill if needed
2. Inspect cabinet ventilation system
3. Clean Radiators if needed
4. Remove any debris blocking air inlets
Close Out
1. Secure door locks
2. Secure fascia covers, if applicable
3. Update Service Records
Tesla System Controller inspection, service as needed
Provide a Preventative Maintenance Report in Tesla’s standard form, if requested by Buyer as outlined in Exhibit B.
5-Yearly Maintenance:
Once every 5 years
Annual Maintenance
Megapack stirring fan replacement if needed
Annual Maintenance
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early Maintenance:
Once every 10 years
Megapack coolant refill
Megapack radiator fan replacement if needed
Megapack coolant pump replacement if needed
Megapack door gasket replacement if needed
Ongoing:
Create and maintain records, reports and data relating to the Services and corrective maintenance activities in accordance with Tesla’s standard practices (the “ Service Records”). The Service Records will be accurate, current, complete and reasonably detailed.
Retain the Service Records in accordance with Tesla’s document retention protocols.
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Exhi
bit B
Reports
Report Name| | | | | | | | Delivery Frequency|
| | | | | | | | | | |
Contents| | | | | |
Preventative Maintenance
Report
30 days after the end
of each Operating
Year
1. Site Name
2. Site Address
3. System Size
4. Operating Year
5. Operating Year Site Summary
6. Scope Performed with Dates & Findings
7. Follow-Up Tasks
8. Tesla Asset Manager Comments (if
applicable)
Up
on Buyer request, reports will be delivered by email as per the Buyer Contact information OR notification that the report is available in Powerhub or similar Tesla Portal.
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Sc
hedule 1
Standard Terms & Conditions
1. Services.
1.1. Tesla shall perform the Preventative Maintenance Services, Warranty Services, and any Change Orders (collectively, the “Services”) in accordance with this Schedule 1, Exhibit A and the Key Terms
1.2. Buyer hereby grants to Tesla and its agents, employees and subcontractors the right to reasonable and timely access to the System for the performance of Tesla’s obligations and exercise of its rights under this Agreement . Buyer shall ensure that such rights are not interfered with by any third party (including, without limitation, the owner or lessee of the System Location, if different from Buyer.
1.3. Tesla shall give Buyer at least 10 days prior notice (and notwithstanding anything to the contrary, this notice may be made by telephone without the need for any writing) of its intention to access the Site in connection with the performance of this Agreement, unless in an emergency or it Tesla determines that it is urgently required to perform Change Orders, in which case Tesla shall only be required to make commercially reasonable efforts to give Buyer advance notice (including by telephone).
1.4. If Onsite Maintenance Infrastructure is indicated in the System Purchase Agreement Buyer shall be obligated to continue to provide repair work as applicable for any items outlined as a Buyer obligation in the System Purchase Agreement. Any delay or failure in Buyer’s fulfillment of this obligation shall constitute a Buyer-Caused Delay.
1.5. Tesla will comply with (i) Buyer’s onsite policies and procedures for accessing the Site which are set forth in Schedule 6. Tesla shall be entitled to a Change Order for an Unanticipated Change for any additional costs incurred or delays arising from Tesla’s compliance with any Buyer policies or procedures other than those set forth in such Schedule.
1.6. Tesla may request Buyer- Provided Information regarding the Site and otherwise from Buyer in connection with this Agreement. Buyer shall provide to Tesla all such reasonably requested information. Tesla has the right to rely upon the accuracy and completeness of Buyer -Provided Information. “Buyer- Provided Information” means any data, design, criteria or other documentation or information provided by Buyer to Tesla before or after the date of this Agreement.
2. Reserved.
3. Title. Title and risk of loss to all parts, materials or equipment installed by Tesla in the System during the performance of Services shall transfer to Buyer when such parts, materials or equipment have been installed and the System (or the affected part of the System) has been commissioned (or re-commissioned).
For clarity, Tesla shall have title and risk of loss to all parts that it permanently removes from the System.
4. Subcontracting. Tesla may perform any (but not all) Services through subcontractors and shall remain fully responsible for their performance and compliance with this Agreement . Any subcontractors performing Services shall have any licenses or other accreditations required by applicable law and shall either be covered by Tesla’s insurance or maintain their own insurance coverage appropriate to the scope of services provided in Tesla’s reasonable judgment. Tesla will be solely responsible for paying subcontractors and for managing and coordinating their work.
5. Price; Invoicing; Payment; Other Relief.
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5.1. Te
sla shall invoice Buyer for such amounts at the times set out in the Key Terms or, if not so set out, when appropriate under this Agreement. Tesla shall send all invoices by electronic mail to the address of Buyer shown in the Key Terms.
5.2. Buyer shall pay to Tesla the applicable fees within 30 days after receipt, in the currency in which the Price is denominated in the Key Terms, and by electronic funds transfer (EFT).
5.3. Buyer shall notify Tesla of any invoice dispute and provide substantiating documentation within 20 days after Buyer’s receipt of the disputed invoice. Notwithstanding any dispute, Buyer shall pay all undisputed amounts in accordance with the Payment Terms.
5.4. Late payments and disputed amounts that are later determined to have been due and owing will accrue interest at the at a rate that is the lesser of the (a) “prime rate” (as published in the Wall Street Journal) from time to time plus 1.5% per month, and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly, from the original due date until payment is made. The owing party shall reimburse the other for all costs incurred in collecting any late payments, including reasonable attorneys’ fees.
5.5. In addition to the other compensation and relief contemplated by this Agreement, each Party may be entitled to relief under this Agreement for Force Majeure Events as defined and described in Schedule 5 and Tesla shall be entitled to Change Orders for relief as defined and described in Schedule 5.
6. Taxes.
6.1. All fees are exclusive of, and Buyer is solely responsible for, all taxes of any kind imposed by any governmental authority on any amounts payable by Buyer. For clarity, Tesla is responsible for any import duties on equipment imported to the Site by Tesla in connection with performance of the Services.
6.2. Where required by law, unless Buyer furnishes to Tesla lawful evidence of exemption, Tesla will invoice Buyer for the amount of any such tax and remit such amount to the applicable taxing authority.
6.3. If Buyer is required by law to deduct or withhold any amount of tax from a payment to Tesla, Buyer shall (i) promptly remit such amount to the applicable taxing authority and provide Tesla with a receipt for such remittance and (ii) increase the amount of its payment to Tesla by the amount necessary to ensure Tesla receives the full amount which it would have received if no deduction or withholding had been made.
7. Product Updates.
7.1. The System Specification and Tesla Manuals may be updated by Tesla from time to time and at any time. Such updates are provided via the Partner Portal or by notice from Tesla. Buyer shall subscribe to the Partner Portal to ensure receipt of such updates.
7.2. If Buyer is informed of an update to the System Specification or Tesla Manuals via the Partner Portal or notice from Tesla, Buyer shall (a) use commercially reasonable efforts to determine the impacts of such update on Buyer promptly after Buyer becomes aw are of the same, and (b) reasonably cooperate with Tesla to mitigate such impacts.
7.3. Any update to the System Specification or Tesla Manuals under Section 7 .1 that does not cause a material, adverse impact on Buyer after considering the benefits to Buyer, if any, associated with ATTACHMENT 1
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such up
dates, then the System Specification and Tesla Manuals shall be automatically amended to reflect such updates effective as of the date of the update.
7.4. The Parties agree that there will be no material, adverse effect on Buyer resulting from: (i) reasonable conforming updates to the Tesla Manuals that result from changes to other Tesla Manuals or the System Specification allowed pursuant to this Section 7; or (ii) reasonable conforming updates to the System Specification resulting from changes to a Tesla Manual allowed pursuant to this Section 7.
7.5. If any update to the System Specification or Tesla Manuals under Section 7 .1 will have a material adverse impact on Buyer after considering the benefits to Buyer, if any, associated with such updates, and provided that Buyer has complied with Section 7.2, Buyer may within 30 days from the date of such update either:
7.5.1. Reject the applicability of such updates to the System by notice to Tesla, which notice shall include reasonable supporting information regarding the material, adverse impact of such updates on Buyer after considering the benefits to Buyer, if any, associated with such updates; or
7.5.2. Approve the affected updates subject to mutual execution of a Change Order pursuant to which Tesla shall reimburse Buyer for Buyer’s reasonable, documented, out of pocket costs relating to redesign, interconnection, construction, and similar costs of developing the project (but excluding financing costs, management fees, and payments to affiliates of Buyer), in each case (a) to the extent directly caused by the affected updates, as applicable, and (b) net of the benefits to Buyer arising from such update. Tesla shall provide Buyer with a draft Change Order addressing the foregoing promptly following receipt of Buyer’s conditional approval, and such Change Order shall constitute a matter requiring Buyer’s approval for purposes of Schedule 1, Section 29.
7.6. Following Tesla’s receipt of Buyer’s rejection notice or Change Order request and supporting information pursuant to Section 7.5, Tesla may request Buyer to provide additional reasonable supporting information with respect to any claim by Buyer, which Buyer agrees to provide. The Parties will seek to agree on a mutually acceptable and commercially reasonable resolution to mitigate any material, adverse impact to Buyer after considering the benefits, if any, associated with any update to the System Specification or Tesla Manual under Section 7.1.
8. No Set-off Right. Any claim for money due or to become due from a Party under this Agreement shall not be subject to deduction or set- off by such Party against any amount due or to become due to the other Party or its Affiliates, whether relating to a claim under this Agreement or relating to any other transaction.
9. Cybersecurity and Remote Connection
9.1. The rights and obligations of the Parties with respect to the monitoring of the System, data produced by the System, and upgrades to System firmware, are as set forth in Schedule 4 . Buyer shall ensure that such rights are not interfered with by any third party (including, without limitation, the owner or lessee of the Site, if different from Buyer.
9.2. During the term of this Agreement (including the Services Warranty period) and the term of the MLW Buyer shall establish and maintain a “Standard Remote Connection” as set forth in SCADA Design Manual.
10. Services Warranty.
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10.1. Te
sla warrants that (i) it shall perform all Services in accordance with Prudent Industry Practices, the System Operation & Maintenance Manual, this Agreement and the M LW; and (ii) any labor performed, and any materials installed, in the performance of the Services shall be free from defects in design and workmanship for 1 year after such labor was performed or such materials were installed (collectively, the " Services Warranty") but in no event shall Tesla have warranty liability under this Agreement more than 2 years after the date on which Service was performed. “Prudent Industry Practices” means the methods approved by a significant portion of the electrical services industry operating in the Site that, in the exercise of reasonable judgment in light of the facts known at the time a decision was made, would have been expected to accomplish the desired result in a manner consistent with applicable law, reliability, safety, environmental prot ection, economy and expedition. Prudent Industry Practices are not limited to optimum methods, but rather include a spectrum of reasonable and prudent methods that take the conditions specific to the System into account.
10.2. If Buyer notifies Tesla of a breach of the Services Warranty within 1 year after the affected Service was performed, Tesla shall remedy such breach at its own cost and expense (such activities, “Warranty Services”) as promptly as reasonably practicable, in a manner and at such times that reasonably minimizes interruption of the operation of the System and revenue loss to Buyer. This shall be Tesla’s sole and exclusive liability, and Buyer’s sole and exclusive remedy, in connection with a breach of the Support Warranty.
10.3. The Services Warranty does not extend to damage or failure caused by (i) normal wear and tear; (ii) damage or failure caused by Force Majeure Events; or (iii) any acts or omissions of any person other than Tesla or a Subcontractor acting on Tesla’s behalf.
10.4. As part of the Warranty Services, Tesla may elect to do any of the following in its sole discretion, among other activities: (i) repair parts (including removing such parts and reinstalling the same after repair); and/or (ii) use (A) remanufactured or refurbished parts to the extent such parts have remaining lives equivalent to the expected remaining life of the part replaced; or (B) equivalent or improved versions of Tesla products, features or options. The performance of the Warrant y Services shall be Tesla’s sole and exclusive liability, and Buyer’s sole and exclusive remedy, in connection with a breach of the Services Warranty.
10.5. EXCEPT AS PROVIDED FOR IN THIS AGREEMENT, TESLA MAKES NO WARRANTIES OR GUARANTEES
WITH RESPECT TO THE SERVICES AND DISCLAIMS ANY WARRANTY OR GUARANTEE IMPLIED BY
APPLICABLE LAWS, INCLUDING IMPLIED WARRANTIES OF PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF CUSTOM OR USAGE.
11. Buyer Termination.
11.1. In addition to any other remedies that may be provided under this Agreement , Buyer may terminate this Agreement for the following Defaults effective on 10 days’ prior notice to Tesla delivered when such Default is still pending:
11.1.1 Tesla fails to pay any undisputed amount when due under this Agreement and the failure is not cured within 10 days after Tesla’s receipt of written notice thereof from Buyer;;
11.1.2 Tesla has breached any material provision of this Agreement not otherwise a default event in this Section 11.1 and such breach, to the extent curable, is not cured within 30 days after Tesla’s receipt of written notice thereof (or for defaults which Tesla has notified Buyer cannot be cured within 30 days but can be cured within 60 days, such default has not been so cured by the extended 60-day deadline);
11.1.1. Tesla is Insolvent. “Insolvent” means the person becomes insolvent, files a petition for ATTACHMENT 1
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uptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
12. Tesla Termination.
12.1. In addition to any other remedies that may be provided under this Agreement, Tesla may suspend performance of any of its obligations under this Agreement, including its delivery obligations, if Buyer at any time is in Default of its payment obligations under this Agreement . All reasonable costs incurred by Tesla by reason of such suspension (such as costs to warehouse the System until an overdue payment is received) shall be a debt due and owing from Buyer to Tesla within 30 days of Buyer’s receipt of a written invoice from Tesla at the Buyer Invoice Address.
12.2. In addition to any other remedies that may be provided under this Agreement , Tesla may terminate this Agreement for the following Defaults effective on 10 days’ prior notice to Buyer delivered when such Default is still pending:
12.2.1. Buyer fails to pay any undisputed amount when due under this Agreement and the failure is not cured within 10 days after Buyer’s receipt of written notice thereof from Tesla:
12. 2.2. Buyer has breached any material provision of this Agreement and the breach is not cured within 30 days after Buyer's receipt of written notice thereof from Tesla (or for breaches that Buyer has notified Tesla cannot be cured within 30 days but can be cured within 60 days, such breach has not been cured by the extended 60-day deadline); or
12. 2.3. Buyer is Insolvent.
13. Remedies Upon Termination. Upon any termination pursuant to Sections 11 or 12:
13.1. The terminating Party shall have the right to pursue such direct, non- duplicative damages a nd oth
er remedies arising from the default and termination as may be available to it at law or in equity, subject to applicable provisions of this Agreement ; provided, that for terminations pursuant to Section 11.1 Buyer shall not be liable to Tesla for damages for such termination;
13.2. Buyer shall pay for any Services performed by Tesla in accordance with this Agreement owing or accruing prior to termination; and
13.3. Each Party shall use reasonable efforts to mitigate its damages in connection with any such termination.
14. Confidentiality; Publicity.
14.1. The NDA sets out the Parties’ confidentiality obligations under this Agreement and is incorporated by reference into this Agreement , mutatis mutandis. The terms and conditions of the NDA will continue in force throughout the term of this Agreement and for 3 years following its expiration or early termination. The terms and conditions of this Agreement, and any information regarding the System shall be Tesla’s’ Confidential Information for purposes of the NDA.
14.2. Neither Party shall advertise or issue any public announcement regarding the execution of this Agreement or its contents, or use the other Party’s mark, name or logo in any marketing literature, web sites, articles, press releases (including interviews with representatives of media organizations of any form), or any other document or electronic communication , without the prior written consent of the other Party. The foregoing shall not prohibit a Party from making any public ATTACHMENT 1
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losure or filing that it determines in good faith is required by law or the rules of the stock exchange on which its shares, or the shares of its parent company, are listed.
15. Intellectual Property Rights.
15.1. As between the Parties, Tesla shall remain the sole and exclusive owner of any and all patents, trademarks, copyrights, mask work rights, trade secrets and any other intellectual or proprietary rights associated with the Services or any components or software installed in the System during performance of the Services, or any parts or derivations thereof.
15.2. Tesla hereby grants to Buyer and its agents a limited, non-exclusive, non-sublicensable (other than to persons acting on Buyer’s behalf in furtherance of Buyer’s exercise of its license rights under this Section 15.2), non-transferable (other than as permitted by Section 28 license to use (i) any software (i.e., firmware) embedded by Tesla in the System, and (ii) the Tesla Manuals and similar documents provided by Tesla as part of the Services (all of the foregoing, collectively, the “Licensed Materials”) to the extent necessary for the ownership, operation, and maintenance of the System; provided, that Buyer may use the software solely in the operation of the System. Except for the foregoing, no license or other right to Tesla’s intellectual property is granted under this Agreement.
15.3. For the avoidance of doubt, Buyer is not granted any license to modify the Licensed Materials and shall bear all responsibility for its use of the Licensed Materials other than as permitted by Tesla’s license granted under Section 15.2. The licenses granted by Tesla under this Section 15 only relate to the Licensed Materials as final forms of same are provided by Tesla to Buyer.
15.4. Buyer shall bear all responsibility for its use of the Licensed Materials to the extent not in accordance with the Tesla licenses granted under this Section 15. The licenses provided in Section
15.2 will terminate upon termination of this Agreement as the result of Buyer’s breach for failure to pay.
15.5. Buyer hereby grants to Tesla, its Affiliates and agents an irrevocable, limited, royalty -free, perpetual, world-wide, non-exclusive, non-sublicensable (other than to persons acting on Tesla’s behalf in furtherance of Tesla’s exercise of its license rights under this Section 15.5), non- transferable (except as permitted pursuant to Section 28) license to use, copy, distribute, make derivative works from, make, import, export and practice:
15.5.1. All Buyer-provided information in connection with Tesla’s exercise of rights and performance of obligations pursuant to and in connection with this Agreement and any Related Contracts; and
15.5.2. All data obtained via the remote monitoring of the System and to which Buyer takes title pursuant to Schedule 4:
15.5.3. to use in connection with Tesla’s exercise of rights and performance of obligations pursuant to and in connection with this Agreement, the System Purchase Agreement and the MLW;
15.5.4. to improve Tesla’s products and services generally (including by performing analyses on such information); and
15.5.5. to aggregate with other data.
15.6. Notwithstanding anything to the contrary in the NDA, public disclosure of such information by Tesla is permitted if neither Buyer nor the long -term occupant of the Site could reasonably be ATTACHMENT 1
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ntified from the publicly disclosed information.
15.7. Tesla’s license under Section 15.5 does not permit Tesla to reverse engineer Buyer’s dispatch algorithms, and Tesla shall not so reverse-engineer such algorithms.
16. Limitations of Liability.
16.1. NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO ANY BREACH OF THIS
AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN
ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
16.2. NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT,
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL EXCEED THE HIGHER OF (1) THE AGGREGATE AMOUNT PAID OR PAYABLE BY BUYER FOR SERVICES PERFORMED DURING THE CALENDAR YEAR PRIOR TO THE DATE THAT THE CLAIM AROSE; OR (2) USD 50,000.
16.3. THE LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION 16 SHALL NOT APPLY TO: (1) BUYER’S OBLIGATION TO MAKE PAYMENTS FOR SERVICES PERFORMED UNDER THIS AGREEMENT ; (2) EITHER PARTY’S OBLIGATION TO PAY ANY LIQUIDATED DAMAGES UNDER THIS AGREEMENT; (3) DAMAGES ATTRIBUTABLE TO EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (4) ANY VIOLATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (5) CLAIMS THAT ARE THE SUBJECT OF INDEMNIFICATION UNDER THIS AGREEMENT; (6) DAMAGES ATTRIBUTABLE TO A PARTY’S INTENTIONAL TORTS OR UNLAWFUL CONDUCT OR WILFUL MISCONDUCT; OR (7) ACTS OR OMISSIONS FOR WHICH LIABILITY CANNOT BE DISCLAIMED OR LIMITED UNDER APPLICABLE LAW.
17. General Indemnity. Each Party shall defend, indemnify and hold harmless the other Party, its Affiliates, and their respective directors, officers, partners, members, shareholders, agents, employees, subcontractors, successors and assigns (collectively, “ Representatives”) from and against any losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable legal fees (collectively, “Losses”) arising from any claim, a ction, suit, proceedings, demand, investigation or assessment made or brought by any third party (excluding any of the foregoing brought by shareholders or employees of the indemnified Party) (collectively, “Claims”) in each case to the extent caused by:
17.1. injury or death of persons, or damage to or loss of property, to the extent caused by or arising from the negligent acts or omissions or acts of willful misconduct of the indemnifying Party or its Representatives in connection with the performance of this Agreement; and
17.2. any failure by the indemnifying Party or its Representatives to comply with applicable laws.
18. Environmental Indemnity.
18.1. Tesla shall defend, indemnify, and hold harmless Buyer and Buyer’s Representatives from and against all Claims arising out of or relating to any violations of any environmental laws by Tesla, including the release at, on, above, below or near the Site in connection with the performance of this Agreement, of any hazardous materials to the extent such violation or release relates to:
18.1.1. pre-existing hazardous materials or hazardous materials brought to the Site by Buyer or anyone for whom Buyer is legally responsible (other than Tesla or its subcontractors), in either case whose presence and location were previously made known to Tesla by Buyer and that were negligently released on the Site by Tesla or its subcontractor, ATTACHMENT 1
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18.1. 2. hazardous materials brought to the Installation Location by Tesla or its subcontractor that are released by Tesla or its subcontractors.
18.2. Buyer shall defend, indemnify, and hold harmless Tesla and its Representatives from and against any and all Claims made against any Tesla and its Representatives in connection with or arising from
18.2.1. pre-existing environmental conditions, including pre-existing hazardous materials, on the Site other than those for which Tesla must indemnify Buyer pursuant to Section 19.1,
18.2.2. any releases of hazardous materials other than those for which Tesla must indemnify Tesla pursuant to Section 19.1, and
18.2.3. any violations of any permits or environmental laws by Buyer or an end user of the System.
19. IP Indemnity.
19.1. Tesla shall indemnify, defend and hold harmless Buyer and its Representatives from any Losses arising out of any Claim alleging that any Services performed under this Agreement, or any component or software incorporated in the System by Tesla during performance of the Services, infringes the intellectual property rights of any third party. However, Tesla shall have no obligation to indemnify Buyer or any Representative to the e xtent such Claim arises out of: (i) use of the System in combination with products, materials or equipment not expressly authorized by Tesla in circumstances where the infringement would have been avoided by the use of the System not so combined; or (ii) any modifications or changes made to the System other than by Tesla in circumstances where the infringement would have been avoided without such modifications or changes.
19.2. If any Claim for infringement or alleged infringement of any intellectual property rights is made, Tesla may, at its own expense and in its sole discretion, (x) modify any or all of the intellectual property rights so as to avoid the infringement or the alleged infringement; or (y) take such other action as Tesla deems reasonable to avoid or settle such Claim in accordance with Section 20, and this shall be the sole and exclusive remedy available to Buyer in respect of such Claim.
19.3. Buyer shall indemnify, defend and hold harmless Tesla and its Representatives from any Losses arising out of any and all Claims
19.3.1. involving(a)any Buyer modification (directly or indirectly), use or reuse of the Licensed Materials other than as permitted under Section 16, (b) use of the System in combination with any other products, materials or equipment not expressly authorized in writing by Tesla in circumstances where the infringement would have been avoided by the use of the System not so combined; or (c) any modifications or changes made to the System other than by Tesla in circumstances where the infringement would have been avo ided without such modifications or changes, and
19.3.2. any Buyer breach of the licenses and other intellectual property rights granted to Buyer by Tesla pursuant to this Agreement.
20. Indemnification Procedures. The indemnified Party will give the indemnifying Party prompt written notice of any claim for which indemnification is sought under Section 17, 18 or 19. Failure to give prompt notice will not diminish the indemnifying Party’s obligations under this Section 20 to the extent such failure does not materially prejudice the indemnifying Party’s ability to defend the claim. The indemnifying Party shall ATTACHMENT 1
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ol the defense of the claim, and the indemnified Party may participate in the defense at its own expense with counsel of its choice. The indemnified Party shall make available information and assistance as the indemnifying Party may reasonably request, at the indemnifying Party’s expense. The indemnifying Party may not, without the prior written consent of the indemnified Party, consent to any judgment or settlement that (a) provides for injunctive or other non -monetary relief affecting the indemnified Party or its Representatives, (b) does not provide for an unconditional and full release of the indemnified Party and its Representatives, (c) diminishes any rights of the indemnified Party under this Agreement , or (d) results in additional fees or charges to the indemnified Party. If the indemnifying Party, within a reasonable time after receipt of a request for indemnification, fails to take reasonable steps to defend indemnified Party or its Representative against a claim, the indemnified Party may undertake the defense of such claim without waiving its rights and remedies under this Agreement. Notwithstanding anything to the contrary, in no event will a Party, as the indemnifying Party, be obligated to an indemnified Party to the extent a Claim or Loss arises out of or is due to the negligence or willful misconduct of such indemnified Party.
21. General Compliance with Laws; Approvals. Each Party shall comply with all laws applicable to the performance of its obligations and enjoyment of its rights under this Agreement. Buyer shall obtain al l a
pprovals, certifications, licenses and permits required by any applicable law or governmental authorit y (
collectively, “Approvals”) in connection with the ownership or use of the System. Tesla shall obtain all Approvals required for its performance of the Services under this Agreement.
22. Ant
i-Bribery Laws. Each Party shall comply with all national or international anti-bribery laws applicable to it, including without limitation the Foreign Corrupt Practices Act of 1977 (the “FCPA”) and shall, at all times during the Term, remain in compliance and maintain appropriate policies and procedures to ensure ongoing compliance with all such laws. As of the Effective Date, (a) neither Party has any employees who are foreign officials as defined under the FCPA, and (b) no foreign official as defined under the FCPA has any legal or beneficial interest in a Party (or, if a Party or its direct or indirect parent company is a publicly listed company, a more than 5% legal or beneficial interest in such Party). Each Party shall promptly notify the other Party in writing in the event any of the foregoing representations would be untrue if made by Buyer at any time during the Term. Each Party acknowledges that any violation of this Section 22 constitutes just cause for immediate termination of this Agreement by the other Party.
23. Governing Law; Dispute Resolution. This Agreement is governed by the laws of Texas. Any dispute arising from or relating to this Agreement shall first be promptly referred to the Parties’ senior level management for resolution. If they are unable to resolve any such dispute within 20 days after referral, either Party may take such dispute to binding arbitration in accordance with the then-current Streamlined Arbitration Rules of the Judicial Arbitration and Mediation Services (“ JAMS”). The existence, content and result of the arbitration shall be held in confidence by the Parties, their representatives, any other participants and the arbitrator. The arbitration will be conducted by a single arbitrator selected by agreement of the Parties or, failing such agreement, appointed in accordance with the JAMS rules. The arbitration shall be conducte d in
English and in Austin, Texas. Each Party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator may, in its discretion, award reasonable costs and fees to the prevailing Party. Judgment upon the award rendered in the arbitration may be entered in any court of competent jurisdiction. If any dispute in arbitration under this Agreement is substantially the same or involves common issues of law or fact (which may include, but not by way of limitation, matters involving other agreements related to the System), either Party shall be entitled to require that any such dispute be consolidated with the relevant arbitration pursuant hereto, and the other Party shall permit, and reasonably co- operate with the other parties in, such consolidation.
Notwithstanding the foregoing, each Party will have the right to apply at any time to a judicial authority for appropriate injunctive relief in connection with a breach by the other Party of its obligations in Section 14 or Section 15, and by doing so will not be deemed to have breached its agreement to arbitrate or to have impaired the powers reserved to the arbitrator.
24. Cumulative Remedies. Unless stated to the contrary, all rights and remedies provided under this Agreement ATTACHMENT 1
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cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
25. Insurance . Each Party shall pay for and maintain in full force and effect the insurance coverage or insurance program required of it in Schedule 2, as applicable.
26. Entire Agreement; Severability . This Agreement will be deemed to have been written by both Parties, constitutes the entire agreement between the Parties regarding its subject matter and supersedes all prior agreements, representations and understandings, oral or written, between the Parties regarding its subject matter. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be interpreted so as to best accomplish the objectives of the original provision and the remaining provisions of this Agreement shall remain in full force and effect.
27. Amendment; Modification; Waiver. No amendment or modification of this Agreement is effective unless it is in writing and signed by each Party. No waiver by either Party of any provision of this Agreement is e
ffective unless set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right or remedy arising from this Agreement operates as a waiver thereof. No single or partial exercise o
f any right or remedy hereunder precludes any other or further exercise of that right or remedy or the exercise of any other right or remedy.
28. Assignment.
28.1. Subject to Section 28.2, neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party. Any purported assignment or delegation in violation of this Section 28.1 is null and void. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and permitted assigns of the Parties.
28.2. Each Party may (i) assign this Agreement to a successor in interest following a merger, acquisition or corporate reorganization (provided, that in the case of Buyer as assignor such assignee shall not be a Competitor or a Competitor Related Party ), and (ii) without the other Party’s consent, collaterally assign this Agreement as security to or as part of any factoring arrangement with any financing party (provided, that in the case of Buyer as assignor such assignee shall not be a Competitor or a Competitor Related Party ); provided, however, that no assignment of this Agreement pursuant to the foregoing subsection (ii) shall release the assignor from its obligations and liabilities under this Agreement. A permitted assignee under this Section 28.2(ii) shall be bound by the obligations of this Agreement upon consummation of a foreclosure of its security interest and shall, upon the other Party’s request, deliver a written assumption of assignor’s rights and obligations under this Agreement to the other Party.
28.3. As used in this Section 28, “Competitor” means a direct or indirect competitor of Tesla with respect to the manufacture, design, integration or supply of battery energy storage equipment or systems. “Competitor Related Party ” means, with respect to any Competitor, any other Person that is a controlling direct or indirect beneficial owner of such Competitor, or any other Person for whom such Competitor is a controlling direct or indirect beneficial owner. For purposes of this definition, the term “control” means the right and power, directly or indirectly through one or more intermediaries, to direct or cause the direction of substantially all of the management and policies of a Person through ownership of voting securities or by contract.
29. Approvals . Unless expressly stated otherwise, where Buyer has a right of approval, review, or a similar right under this Agreement (an “ Approval”), such Approval shall not be unreasonably withheld, conditioned or delayed; and the following shall apply unless a different Approval process is specifically set forth in this Agreement: (i) Tesla will deliver to Buyer the information or other deliverabl e for which Approval is ATTACHMENT 1
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quired, when Tesla believes that the applicable conditions are met; (ii) within 5 Business Days thereafter, Buyer shall either approve, or disapprove (providing a detailed explanation). If Buyer fails to disapprove within 7 Business Days after receipt of Tesla’s delivery of the affected information or deliverable for Buyer review, then Buyer will be deemed to have provided its Approval.
30. Relationship of the Parties. The Parties are independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties. Neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
31. No Third -Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns. Nothing herein is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Claims by non-parties indemnified pursuant to this Agreement may only be brought by a party to this Agreement.
32. Notices. If a provision of this Agreement expressly contemplates notification by telephone, the relevant notification may be made by telephone (including recorded message) to the telephone number set out in the Key Terms. All other notices under this Agreement shall be in writing and shall be deemed given (a) if sent by courier, on the date when left at the address of the recipient if such date is a Business Day or on the next Business Day if such date is not a Business Day and (b) if sent by email, upon receipt by the sender of an email confirming receipt of the notice by the recipient (in which case the email will be deemed received on the date it was actually received if such date is a Business Day, or on the next Business Day if such date is not a Busi ness Day). An automatic “read receipt” shall not constitute confirmation of receipt for purposes of this Section 32. In each case, notices shall be sent to the Notice Address given for Tesla and Buyer in the Key Terms, or such other address as either Party may notify the other Party in writing from time to time. Nothing in this Section 32 shall be construed to restrict the transmission of routine communications between representatives of Buyer and Tesla.
33. Survival. Provisions of this Agreement which by their nature contemplate or govern performance or observance subsequent to the termination or expiration of this Agreement shall survive such termination or expiration; provided, that all warranties and licenses granted by Tesla to Buyer pursuant to this Agreement shall terminate upon Tesla’s termination for Buyer’s default based on Buyer’s failure to pay Tesla in accordance with this Agreement.
34. Counterparts. This Agreement may be signed in duplicate originals, or in separate counterparts, which are effective as if the Parties signed a single original. A PDF of an original signature or electronically signed version transmitted to the other Party is effective as if the original was sent to the other Party.
35. Representations.
35.1. Each Party represents and warrants to the other Party that (i) it is a legal entity, duly organized and in good standing under the laws of its jurisdiction of incorporation; (ii) this Agreement constitutes a legal, valid and binding obligation of such Party enforceable in accordance with its terms; (iii) the execution, delivery and performance of this Agreement (A) is within its powers, (B) has been duly authorized by all requisite action and (C) will not violate any agreement, commitment, certificate or other document to which it is a party or by which any of its assets may be bound or affected.
35.2. Buyer further represents and warrants to Tesla that: (i) all financial information that it has provided to Tesla is true and accurate and fairly represents Buyer’s financial position as at the date it was provided and (ii) it has all rights and consents required for Tesla to remotely monitor performance of the System.
36. Certain Defined Terms. For purposes of this Agreement, (a) “Affiliate” means, with respect to a Party, an ATTACHMENT 1
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ity that controls, is controlled by or is under common control with such Party; (b) “control” means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies or operations of an entity, whether through ownership of voting securities, by contract or otherwise; (c) “Business Day” means any day other than weekends and da ys when banks are not generally open for business in Austin, Texas. Capitalized terms that are used but not defined in this Agreement shall have the meaning given to them in the System Purchase Agreement.
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Insurance Requirements
Each Party shall, at its sole cost, maintain insurance set out in Schedule 2 with responsible insurance carriers with a Best Insurance Reports rating of “A -“ or better or through a formal self- insurance mechanism that has either (a) a Best Insurance Reports rating of “A-“ or better; or (b) a financial size category of “VI” or higher, provided, that if such self-insurance program does not meet either (a) or (b), then each Party’s use of self -insurance for the coverages herein shall be subject to the other Party’s approval, not to be unreasonably withheld, conditioned, or delayed.
1. Tesla’s and Buyer’s Insurance Requirements
1.1. Tesla’s and Buyer’s General Liability Insurance.
1.1.1. USD $2,000,000 each occurrence or per claim, combined single limit for third party bodily injury or property damage.
1.1.2. USD $2,000,000 general aggregate
1.1.3. Coverages.
1.1.3.1. Include the other Party as additional insured in connection to the Agreement.
1.2. Tesla’s and Buyer’s Business Automobile Liability or similar Motor Liability Insurance.
1.2.1. Business Automobile liability or similar Motor Liability Insurance must be insured in accordance with local statutory requirements for each party’s vehicles utilized in scope of the agreement.
1.2.2. Coverages.
1.2.2.1. Include the other Party as additional insured in connection to the Agreement.
1.3. Tesla’s and Buyer’s Worker’s Compensation Insurance.
1.3.1. Workers Compensation
1.3.1.1. Coverages.
1.3.1.1.1. As required by state or federal laws.
1.3.1.1.2. Each party may waive Workers’ Compensation Insurance requirement if they are a qualified self-insured in the state in which the Work is performed.
1.3.2. Employer Liability
1.3.2.1. USD $1,000,000 bodily injury for each accident.
1.3.2.2. USD $1,000,000 bodily injury by disease for each employee.
1.3.2.3. USD $1,000,000 bodily injury by disease policy limit.
1.4. Buyer’s “All Risk” Property Insurance.
1.4.1. Buyer may elect to procure or maintain “All Risk” Property insurance for Buyer- owned property, which shall include, but not limited to, building, structures, Equipment and/or other property owned and all non-owned property in Buyer’s care, custody or control for which the Buyer is legally liable or for which the Buyer has agreed to insure or be responsible for at the Site.
2. Other Requirements for Tesla and Buyer Insurances.
2.1. Waiver of Subrogation. Where permitted by law and customary in the local insurance market, all applicable insurance in Schedule 2 shall include waivers of subrogation. This release and waiver shall be null and void if such loss or damage may have been caused by the negligence of the other party. If one Party's insurance carrier prohibits waiver of subrogation, then each Party's release and waiver shall become null and void as each waiver is given in consideration for the other.
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2.2. D
eductibles and Self -Insured Retentions. E ach Party may select their own insurance deductibles or self - insured retentions for insurances required under Schedule 2. Tesla’s self -insured retentions and deductibles are the sole responsibility of Tesla and Buyer’s self-insured retentions and deductibles are the sole responsibility of the Buyer.
2.3. Notice of Cancellation. Each party shall give the other party prior written notice in the event of cancellation of insurance required to be obtained under Schedule 2.
2.4. Evidence of Insurance . Each Party shall provide certificate of insurance or equivalent evidencing the required coverages to the other party upon reasonable request by the party through the duration of the Agreement.
2.5. Subcontractor Insurance. Tesla shall require each of its S ubcontractors performing Work at the Site to maintain insurance coverage in accordance with the insurance requirements of Tesla’s subcontract, supplier, or designer agreements, as applicable.
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Copy of Manufacturer’s Limited Warranty
[See attached]
[MLWTwentyYEAR_CommercialEnergy Annexure will be added here] ATTACHMENT 1
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Cybersecurity and Remote Connection
1. Key Terms.
Cybersecurity:
Cybersecurity
Classification:
[N/A, NERC CIP Low Impact System]
[NERC CIP Medium Impact System]
Cybersecurity
Compliance Plan
As defined by the Application Note
Special Terms [N/A]
[Exceptions to the Tesla Manuals and the Application Note:]
Remote Connection
Remote Data Logging [Standard Remote Connection: Cellular/Perpetual connection via Tesla System Controller’s LAN1 Ethernet Port/Perpetual connection via Buyer Firewall] [Alternative Remote Connection: Data proxy]
Remote Diagnostics [Standard Remote Connection: Cellular/Perpetual connection via Tesla System Controller’s LAN1 Ethernet Port/Perpetual connection via Buyer Firewall] [Alternative Remote Connection: VPN remote login/Jump server (Low / Medium / High Complexity) remote login]
Remote Software and
Configuration Update
[Standard Remote Connection: Cellular/Perpetual connection via Tesla System Controller’s LAN1 Ethernet Port/Perpetual connection via Buyer Firewall] [Alternative Remote Connection: VPN remote login/Jump server (Low / Medium / High Complexity) remote login]
Time Synchronization [Standard Remote Connection: Public NTP server] [Alternative Remote Connection: Tesla/Buyer shall provide local NTP server (SEL-2488 with SEL-9524)]
DNS Resolution [Standard Remote Connection: Public DNS server] [Alternative Remote Connection: Tesla/Buyer shall provide local DNS server that is regularly synced with a public DNS server]
2. Definitions.
a. “Alternative Remote Connection” means the alternative remote connections as defined in the SCADA Design Manual.
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b. “Ap
plication Note” means the “NERC CIP Low Impact System – Cyber Security Compliance” as appended hereto.
c. “NERC CIP” means North American Electric Reliability Corporation Critical Infrastructure Protection.
d. “Standard Remote Connection” means the standard remote connections as defined in the SCADA Design Manual.
3. Remote Connection.
a. Buyer acknowledges that, in order to provide the Services Warranty and the MLW, Tesla requires the ability to:
i. remotely monitor performance of the System,
ii. provide remote Software upgrades to the System (including security upgrades), and
iii. remotely access/login to the System for diagnosing and resolving issues.
b. Buyer hereby consents to Tesla:
i. performing remote monitoring, logging in to the System for diagnosing and resolving issues at any time without further consent from Buyer; and
ii. providing Software upgrades as Tesla reasonably deems appropriate, in each case subject to Buyer’s Approval; provided, that:
1. Buyer may impose reasonable limitations and requirements as a condition to such Approval (including, a reasonable description of the modifications made by such upgrade, reasonable assurances regarding compatibility and testing of such upgrade, and Buyer’s prior agreement to the scheduling of such upgrade), subject to Tesla’s rights to a Change Order as set forth in this Agreement, and
2. actual noncompliance with (a) applicable cybersecurity requirements, as agreed by Parties in writing. and (b) Law shall be a reasonable basis for withholding or conditioning Approval.
c. Buyer Delays.
i. If Buyer withholds consent (except in the case of Tesla’s noncompliance pursuant to Section
3.b.ii.2), imposes additional requirements or fails to provide timely access for Software upgrades, such circumstances and the resulting impacts shall be treated as a Buyer-Caused Delay, Buyer shall be responsible for all resulting damage and degradation to the System and Tesla shall not have any liability for such damage under this Agreement or any Related Contracts.
ii. If Buyer fails to provide Tesla with timely access to the System in accordance with this Agreement and the System is damaged or degrades in performance as a result of such failure, the resulting impacts shall be treated as a Buyer-Caused Delay, Buyer shall be responsible for all resulting damage and degradation to the System and Tesla shall not have any liability for such damage under this Agreement or any Related Contracts.
d. Data Ownership.
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i. Th
ere are two classes of data produced and consumed by the System: “Operational Data” that Buyer may need to operate the System; and “Health Monitoring Data” consisting of low-level sensor data that Tesla uses to identify failed components or components that may soon fail, and to dispatch field service as needed.
ii. Operational Data are the data described in the System Specification. Operational Data shall be owned by Buyer and are confidential information of Buyer for purposes of this Agreement. Tesla shall provide Operational Data to Buyer via the Tesla System Controller or upon Buyer’s reasonable request.
iii. Health Monitoring Data include any data generated by the System other than Operational Data.
Health Monitoring Data shall be confidential information of Tesla, and Tesla is not required to provide such data to Buyer except as may be otherwise agreed in a Related Contract.
e. For clarity, the Project specific Remote Connection pathway shall be enforced at various stages of the Commissioning Support as per the table below.
4. Cybersecurity
Tesla will follow programs, policies and processes specified in the Application Note unless specified otherwise as per the Special Terms in the Key Terms post Commissioning Completion.
Commissioning Support Remote Connection to System
Commissioning Activities – Tesla software and
firmware update & self-test diagnostics [As set forth in this Agreement]
Standard Remote Connection
Commissioning Activities – Site Controller start-up [As set forth in this Agreement] Standard Remote Connection Commissioning Activities – System start-up [As set
forth in this Agreement
Remote Connection as specified in the Key
Terms
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Force Majeure Events; Change Orders
1 Force Majeure; Change Orders.
1.1 Force Majeure.
1.1.1 A Party shall be excused from performance and shall not be considered to be in breach with respect to any obligation hereunder other than any obligation to pay money due and owing, if and to the extent that such Party’s failure of, or delay in, performance is due to a Force Majeure Event; provided:
1.1.1.1 such Party gives the other Party notice in accordance with Section 1.2.2;
1.1.1.2 where Tesla is entitled to costs pursuant to Section 1.3.1 , Tesla shall exercise reasonable efforts to avoid or mitigate such costs; and
1.1.1.3 the suspension of performance is of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event.
1.1.2 A Party claiming relief pursuant to Section 1.1.1 shall use reasonable endeavors to overcome or mitigate the effects of such occurrence on the performance of the Party claiming relief.
1.1.3 The Party claiming relief pursuant to Section 1.1.1 shall:
1.1.3.1 be entitled to an extension of its time for performance of the affected obligations;
1.1.3.2 provide updates to the other Party on a biweekly basis during the continuation of such Force Majeure Event;
1.1.3.3 if the Party seeking relief is Buyer and the relief claimed by Buyer exceeds 180 days, the delay in excess of such 180 days shall constitute a Buyer-Caused Delay; and
1.1.3.4 without modifying Section 1.1.2 , when the Party becomes able to resume performance of the affected obligations, such Party shall so notify the other Party and promptly resume performance.
1.1.4 The affected Party shall submit a Change Order following the cessation of the Force Majeure Event, in accordance with Section 1.2.5.
1.1.5 If a Party is substantially prevented from fulfilling its material obligations as a result of a Force Majeure Event for more than 365 days in the aggregate pursuant to a claim for Force Majeure relief brought in accordance with this Service Order, then either Party may terminate this Service Order within 30 days after the expiration of the 365 -day period referenced above, which termination shall be effective upon 10 days’ notice.
1.1.6 Upon a termination of this Service Order by either Party pursuant to Section 1.1.5, Buyer shall pay Tesla an amount equal to the sum of:
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1.1. 6.1 all Milestone Payments then due and owing for which Tesla has not yet been paid (including any unpaid portion of the Contract Price applicable to the portions of the System delivered by Tesla and to which Buyer has taken title); plus
1.1.6.2 to the extent not covered by Section 1.1.6.1, the Direct Costs incurred by Tesla in the performance of its obligations up to the date of such termination and for which Tesla has not previously been paid; plus
1.1.6.3 where Buyer is the terminating Party, Tesla’s Direct Costs of demobilization and wind-down at the Site , provided that, if the amount of the Contract Price actually received by Tesla from Buyer prior to the termination date in respect of milestones that have not been achieved as of the termination date exceeds the sum total stated above (i.e., such total is a negative number), then Tesla shall refund the difference to Buyer within 30 days after receipt of a valid invoice from Buyer for such amount.
1.1.7 Subject to Tesla’s receipt of the amounts described in Section 1.1.6, Buyer shall take title to all materials manufactured by Tesla and delivered (or in transit) to Buyer at the effective date of the termination and such goods shall be covered by the MLW and Tesla’s standard licenses that Tesla then-grants or makes available to ordinary course purchasers of such goods, as applicable.
1.2 Unanticipated Changes.
1.2.2 If and to the extent that an Unanticipated Change increases Tesla’s costs or delays Tesla’s performance of its obligations hereunder, Tesla shall be entitled to a reasonable adjustment to the Contract Price and/or the time for its performance of obligation s, Sunset Dates, as applicable, in accordance with this Section 1.2; provided, that, Tesla shall only be entitled to schedule relief and shall not be entitled to an adjustment to the Contract Price for Force Majeure Events other than as set forth in Section 1.3.1.
1.2.3 (i) A Party seeking relief for Force Majeure Events shall notify the other Party, and (ii) Tesla shall notify Buyer for all other Unanticipated Changes, promptly (and in all events within 10 Business Days) after becoming aware of such event and its potential impact on its performance.
1.2.4 If a Party is late in notifying the other of an Unanticipated Change, such Party shall not be entitled to relief under this Service Order for the period of time between the expiration of the specified notice period and the date on which notice of the circumstances for which such Party seeks relief is delivered to the other Party in accordance with this Service Order .
1.2.5 The Party claiming relief due to an Unanticipated Change has a continuing obligation to deliver to the other Party regular, updated reports and any additional, reasonable documentation and analysis supporting its claim regarding such change promptly after such information becomes available to such Party.
1.2.6 Within 30 days after the cessation of the Unanticipated Change and its impacts on the claiming Party’s performance, such Party shall submit a Change Order to the other Party detailing such reasonable adjustment as it believes is warranted due to such event (including reasonable supporting information) and the scope and nature of the relief to which the claiming Party is entitled pursuant to this Section 1.2. Such proposal shall be deemed accepted by the other Party if such other Party has not disputed such proposal ATTACHMENT 1
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writing within 10 days after its receipt of the same.
1.3 Compensation for Unanticipated Changes.
1.3.1 For all Unanticipated Changes (other than Force Majeure Events), Buyer shall pay Tesla the amount agreed by the Parties in accordance with Section 1.2.5, or if no such amount is agreed, the undisputed amount sought by Tesla to make or incurred in connection with such Unanticipated Change and payment of the disputed portion shall be resolved in accordance with Section 27.
1.3.2 Tesla shall provide Buyer reasonable supporting information and documentation to support all costs incurred for which Tesla seeks recovery pursuant to a Change Order.
1.4 Definitions.
1.4.1 “Buyer-Caused Delay” means a delay in Tesla’s performance of its obligations under this Service Order , to the extent due to Buyer’s failure to perform any of its obligations under this Service Order , or Buyer’s failure to provide any information or cooperation reasonably requested by Tesla.
1.4.2 “Change in Law” means the enactment, adoption, promulgation, modification (including a change in interpretation by a governmental authority) or repeal of any law or permit, including of any tariff applicable to the goods Tesla will provide pursuant to this Service Order, after the Effective Date, other than publicly known proposals for changes in laws and permits applicable to Tesla’s obligations that have been adopted by the applicable governmental authority on or before the Effective Date.
1.4.3 “Direct Costs” means Tesla’s actual and reasonably documented direct cost of performing (whether internal or external), plus 20% of the foregoing amount for overhead and profit.
1.4.4 “Force Majeure Event” means any act or circumstance beyond the reasonable control and not attributable to the fault or negligence of either Party, including acts of God, epidemic, pandemic, flood, fire, earthquake, climatic conditions at the Site that are unusual for the time of year, explosion, action or inaction of a public authority (including delays caused by permitting authorities) for reasons other than a Party’s fault, war, terrorist threats or acts or other civil unrest, piracy, lock- outs, strikes o r other labor disputes, restraints or delays affecting carriers, and shall include the inability or delay in obtaining supplies of adequate or suitable materials to the extent caused by a Force Majeure Event.
1.4.5 “Unanticipated Change” means any change in Tesla’s scope of work or service or event that causes a change in the cost or timing of its performance of its obligations including but not limited to (I) any condition at the Delivery Point including any concealed or latent subsurface conditions at the Delivery Point or any subsurface structures, materials, properties or conditions having historical, cultural, archaeological , religious or similar significance); (ii) a change in surface or subsurface conditions at the Delivery Point following the Effective Date; (iii) any Change in Law; (iv) any Buyer- Caused Delay; or (v) any other event or circumstance for which a Change Order is allowed pursuant to this Service Order .
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Buyer’s on-Site Policies
[See attached]
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Copy of System Specification
[See attached]
[MPXLSpecification_CommercialEnergy Annexure will be added here]
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Inflation Reduction Act Compliance Support
[See attached]
[InflationDeductionExhibit_CommercialEner Annexure will be added here]
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