Fresno City Council
July 20, 2023

GSD-B Formal Bid Contract – Product (12-2022)
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PRODUCT PURCHASE CONTRACT

THIS CONTRACT (Contract) is made and entered into by and between the CITY OF FRESNO, a California municipal corporation (City), and WESCO INTERNATIONAL, INC, a Pennsylvania Corporation (Contractor), as follows:

1. CONTRACT DOCUMENTS . The “Terms and Conditions of Sale” from Wesco International, Inc. and “Scope of Work” from Eaton Corporation documents are hereby incorporated into and made a part of this Contract, and shall be known as the Contract Documents.

2. PRICE. For the monetary consideration of NINE HUNDRED THOUSAND SIX HUNDRED THIRTY-SEVEN DOLLARS AND ZERO CENTS ($900,637), as set forth in the Proposal, the Contractor promises and agrees to furnish or cause to be furnished, in a new and working condition, and to the satisfaction of the City, and in strict accordance with the Specifications, all of the items as set forth in the Contract Documents.

3. PAYMENT. The City accepts the Contractor's Proposal as stated and agrees to pay the consideration stated, at the times, in the amounts, and under the conditions specified in the Contract Documents. The Contractor agrees to accept electronic payment from the City.

4. INDEMNIFICATION: To the furthest extent allowed by law, including California Civil Code section 2782 (if applicable), the Contractor shall indemnify, hold harmless and defend the City and each of its officers, officials, employees, agents , and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including, but not limited to personal injury, death at any time and property damage) incurred by the City, the Contractor or any other person, and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees, litigation expenses, and costs to enforce this agreement ), arising or alleged to have arisen directly or indirectly out of performance of this Contract. The Contractor's obligations under the preceding sentence shall apply regardless of whether the City or any of its officers, officials, employees, agents , or volunteers are passively negligent, but shall not apply to a ny loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or by the willful misconduct, of the City or any of its officers, officials, employees, agents, or volunteers.

If the Contractor should subcontract all or any portion of the work to be performed under this Contract, the Contractor shall require each subcontractor to indemnify, hold harmless and defend the City and each of its officers, officials, employees, agents , and volunteers in accordance with the terms of the preceding paragraph.

This section shall survive termination or expiration of this Contract.

5. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement. [Signatures follow on the next page.]
DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 GSD-B Formal Bid Contract – Product (12-2022)
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IN WITNESS WHEREOF, the parties have executed this Contract on the day and year here below written, of which the date of execution by the City shall be subsequent to that of the Contractor’s, and this Contract shall be binding and effective upon execution by both parties.

CITY OF FRESNO,
A California municipal corporation

By:

BROCK D. BUCHE, PE, PLS, Director
Department of Public Utilities

APPROVED AS TO FORM:

ANDREW JANZ
City Attorney

By:

Date
Supv./Senior Deputy City Attorney

ATTEST:

TODD STERMER, CMC
City Clerk

By:

Date
Deputy

WESCO INTERNATIONAL, INC,
a Pennsylvania Corporation

By:

Name:

Title:
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)

By:

Name:

Title:
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)

REVIEWED BY:

Addresses:

CITY:

City of Fresno
Attention: Charles Masters, Engineer
1626 E Street
Fresno, CA 93706
Phone: (559) 621-1630
E-mail: [email protected]

CONTRACTOR:

WESCO INTERNATIONAL, INC
Attention: Matthew Hopper , Sales
Manager
3712 W Gettysburg Ave
Fresno, CA 93722
Phone: (559) 786-8944
E-mail: [email protected]

DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 Jesus A. Gonzalez
7/5/2023
Assistant Director
Sales Manager
7/5/2023
Matthew Hopper
Brandon Collet
7/5/2023
Clerk Attesting

TERMS AND CONDITIONS OF SALE
Effective as of October 25th, 2022 Page 1 of 9

City of Fresno – 5-15-23

1. DEFINITIONS

1.1. “Application” means Seller’s application for business credit extended to and signed by Buyer in connection with these Terms.

1.2. “Buyer” means the person or entity specified in the Order or SOW.

1.3. “Buyer Material” means Buyer’s preexisting intellectual property provided by Buyer for the purpose of an Order or SOW.

1.4. “Confidential Information” means information received by the receiving party from the disclosing party which (a) is marked as "Confidential" or "Proprietary"; or (b) would reasonably be considered confidential and/or proprietary under the circumstances surrounding disclosure.

1.5. “Customer” means Buyer’s customer, including any end user, of the Products, Software, and/or Services.

1.6. “Deliverables” means any work product, reports, or other deliverables developed and provided by Seller as part of the Services and required under an Order or SOW.

1.7. “Existing Agreement” means a mutually -executed agreement between the parties that g overns the purchase and sale of the Products, Software and/or Services.

1.8. “Order” means a purchase order issued by Buyer to Seller for the purchase and/or use of the Products, Software, and/or Services.

1.9. “Products” means those products, materials, or goods described in an Order or SOW.

1.10. “Seller” means the selling entity specified in the Order or SOW.

1.11. “Seller Materials” means any and all processes, formulas, tools, ideas, concepts, methodologies, software, know -how, business practices, trade secrets, object code , source code, documentation, information and ideas developed by Seller or its licensors, and all intellectual property right s therein.

1.12. “Services” means those specific tasks, functions, responsibilities, Deliverables and other services described in an Order or SOW.

1.13. “Software” means the computer programs, operating systems, interfaces, software-as-a-service, applications or other software specified in an Order or SOW.

1.14. “SOW” means a document between Seller and Buyer that specifies Products and/or Services provided by Seller to Buyer.

1.15. “Special-Order Product” means any Product (i) that Seller procures or specially stocked for Buyer (including Products that are custom made, modified, altered, or includes special features), (ii) not readily saleable by Seller to other customers, or (iii) identified by Seller as non-cancelable or non-returnable.

1.16. “Terms” means these Terms and Conditions of Sale.

2. SCOPE OF AGREEMENT. Unless there is an Existing Agreement, these Terms govern the sale, purchase and use of Products, Software, and/or Services by Buyer from Seller and, together with the Application, and each Order and SOW, constitutes the entire and separate agreement between the parties with respect to the subject matter of these Terms. If a conflict arises between or among these Terms, the Application, and an Order and/or SOW, these Terms shall prevail unless otherwise expressly agreed in writing by authorized representatives of the parties. If Buyer is accepting these Terms on behalf of another party , Buyer represents and warrants that Buyer has full authority to bind such party to these Terms. Any additional, preprinted or different terms contained on any purchase order, portal, or other communication from Buyer purporting to apply shall be deemed void and unenforceable unless expressly agreed and signed in writing by authorized representatives of both parties. Buyer’s or its Customer’s placement of an Order or receipt or acceptance of the Products, Software and/or Services constitute acceptance of these Terms.

3. ORDERS. Seller has the right, in its sole discretion, to cancel, accept or reject any Order, in whole or in part, at any time. If Seller cancels or rejects any Order after payment has been made, Buyer is entitled to a refund with in three (3) days of the cancellation, of the amount paid. Buyer is not obligated to pay any remaining balance in the event that Seller cancels or rejects an order. Any change requested by the Buyer to any aspect of the scope of an Order or SOW must be agreed in writing by both parties and may result in a price and/or delivery adjustment as determined by Seller.

Seller reserves the right to implement a minimum order size of $350 per Order. If Seller authorizes that all or part of an Order or SOW be terminated or suspended by modification, rescission or as otherwise provided in Sections 6 and 16 by Buyer, Buyer shall pay termination charges equal to Seller’s costs associated with the Order or SOW, as determined by generally accepted accounting principles. Seller’s costs shall include any amount Seller must pay to its suppliers and manufacturers relating to the relevant Order or SOW. Buyer agrees it (i) must take possession and accept delivery of any Special-Order Product within ninety (90) days upon completion of Seller’s delivery obligations or the Product being available for pick- up, as applicable, and (ii) cannot cancel any Order for Special-Order Product. If Buyer (a) does not take possession and/or accepts delivery of any Special-Order Product upon completion of Seller’s delivery obligations or the Special-Order Product being available for pick-up, as applicable, or (b) cancels an Order for Special-Order Product, Buyer shall then pay or reimburse Seller the purchase price of the Special-Order Products plus any associated cancellation fees, including, but not limited to, any storage and transportation fees incurred by Seller. Seller may, in its discretion, require a non-refundable deposit for any Special-Order Product ordered by Buyer.

4. SERVICES. The Services requested by Buyer shall be specified in an Order or SOW. When applicable, Buyer shall provide Seller with sufficient, free, safe and timely access to its premises and/or system as required to provide the Services. Buyer warrants that the premises where the Services will be performed will comply with all applicable federal, state and local occupational safety, welfare and health standards, rules, and regulations.

Buyer agrees to ensure, so far as is reasonably practicable, the health, safety and welfare of Seller’s personnel when on Buyer’s premises including, but not limited to providing and maintaining premises and systems that are, so far as is reasonably practicable; safe and without risks to health. Seller may use subcontractors to perform its contractual obligations under an Order or SOW. If Seller uses subcontractors, Seller will be solely responsible for ensuring that they comply with their respective contractual requirements. Buyer shall not supervise or direct the performance of any Seller subcontractors. Seller or Seller’s subcontractors, when applicable, shall obtain and maintain the necessary licenses, certifications, and permits, specialty or otherwise, required to provide the Services. If Seller’s performance of any of its obligations is prevented or delayed by Buyer: (a) Seller shall, without limiting its other rights or remedies under these Terms or as otherwise provided by law or equ ity, have the right to suspend or terminate performance of the Services; and (b) Buyer shall be liable for any costs and expenses sustained or incurred by Seller as a result thereof.

Without limiting the foregoing, completion times referenced in an Order or SOW are only estimates.

5. PRICE. Prices on Seller’s website, catalogs or in Seller quotes are subject to change without notice. Unless otherwise extended in writing by Seller, all prices on a Seller quote will expire and become invalid upon the expiration date stated therein, provided however, Seller reserves the right to update its quote or price in the event of any increase in tariffs, levies, duties, freight or importation cost or charges, su pplier pricing or surcharge, or a material exchange rate fluctuation. In such event, Seller will provide an updated quote or price and will not ship Product or provide Software or Services until Buyer receives an Order with the correct price. Any manifest errors are not binding on Seller. Buyer is lia ble for applicable transaction taxes, including sales, use, and value - added taxes, goods and services taxes, duties, customs, tariffs, and other government-imposed DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4

TERMS AND CONDITIONS OF SALE
Effective as of October 25th, 2022 Page 2 of 9

transactional charges however designated (and any related interest or penalty) on amounts payable by Buyer (collectively, “Transaction Taxes”), regardless of when such Transaction Taxes are levied or imposed. Buyer shall provide Seller with proof of exemption from Transaction Taxes at least fifteen (15) business days before the invoice due date.

6. PAYMENT. (a) Payment for Products, Software and Services must be made (i) in the currency identified in the invoice or in its equiva lent as specified in writing by Seller, and (ii) by check or wire transfer or any other means specified by Seller, at its sole discretion. Buyer shall pay any Seller invoice within thirty (30) days from invoice date without any right to offset, counterclaim, holdback or deduction. Buyer must provide notice of any payment dispute within ten (10) days of the date of the invoice or Buyer waives any right to dispute such invoice; however, any such dispute shall not delay timely payment to Seller. Seller reserves the right to require guarantees, security or payment in advance of shipment from Buyer. In the event Buyer fails to pay the total sums due on an invoice by the due date or if an Insolvency Event (as defined in sectio n 15.4 below) occurs, the entire outstanding balance due to Seller on all invoices shall be accelerated and become due in full immediately and the maximum allowable charge and/or interest allowed by applicable laws shall be applied to all past due accounts commencing from the due date of the invoice until paid.

Seller shall also be entitled, in addition to all other remedies available at law or in equity, to suspend performance of any outstanding Orders or SOWs and to recover reasonable attorneys’ fees and/or other expenses incurred collecting all outstanding sums from Buyer or otherwise enforcing or successfully defending these Terms. Seller may set off any amount due from Buyer from any amounts due to Buyer. Seller reserves the right to convert any payment into electronic funds at its discretion. (b) If Seller extends business credit to Buyer under an Application, then Seller’s Business Credit Terms published at www.wesco.com/termsofsale, as amended from time-to-time, shall apply and are expressly incorporated herein by reference.

7. SHIPPING. Unless otherwise agreed to in writing, (i) all Product shipments shall be FOB shipping point, and (ii) Seller may, in its sole discretion, use any commercial carriers and method and route of transportation for shipment of the Products. Buyer shall be responsible f or shipping charges, including all applicable freight, shipping, insurance and handling charges, unless othe rwise agreed to in writing. Title to and risk of loss of the Products passes to Buyer upon transfer to the carrier at the shipping point. Software may be delivered electronically. Shipping dates or other applicable performance dates are estimated on the basis of prompt receipt of the Order and all information, drawings and approvals required to be furnished by Buyer. In the event Buyer, verbally or in writing, confirms a delivery date with Seller but subsequently suspends the Order or is unable to accept delivery, Buyer shall reimburse Seller for all costs and expenses Seller incurs as a result thereof, including, but not limited to, reasonable storage costs. No delay in the shipment or delivery of any Products relieves Buyer of its obligations under these Terms. Seller reserves the right to make partial or early shipments without liability or penalty. Buyer shall pay for the units shipped whether such shipment is in whole, partial or early fulfillment of an Order.

8. ACCEPTANCE. Buyer shall be deemed to have accepted the Products and Services unless written notice of rejection is given to the Seller within five (5) business days from date of delivery.

9. RETURNS. Product returns shall be made pursuant to Seller’s Product Return Policy, published at www.wesco.com/termsofsale, as modified from time to time. Seller reserves the rig ht to apply a re-stocking fees to any Product returns. Software cannot be returned without Seller’s express prior written authorization.

10. SHORTAGES. Buyer shall submit all claims for shortages in writing to Seller within ten (10) days of receiving the Products; otherwise such claims will be deemed waived. Quantities are subject to normal manufacturer allowances. In the case of wires and cables, such allowa nces are plus 10% and minus 5%.

11. RECOMMENDATIONS. Buyer acknowledges and agrees that any drawings, designs, suggestions, recommendations, or advice as to any products, software, or services including installation or use recommendations (collectively, “Recommendations”) are provided “as is” an d are for informational and conceptual purposes only. Buyer acknowledges that in the event it follows any such Recommendations, it does so at its own risk and agrees that Seller will not be liable for any damage, claims, liabilities, or losses suffered by Buyer or any third party, directly or indirectly, due to Buyer following any Recommendations. Any legal or regulatory compliance obligations shall remain Buyer’s sole responsibility, and nothing herein is intended to shift any such burden from Buyer to Seller.

12. WARRANTY.

12.1. Product and Software Warranty. Seller is only a reseller of Products and Software and shall transfer and assign to Buyer any and all transferable warranties made to Seller by the manufacturer of the Products and Software. Unless otherwise specified in a writing signed by Seller, Seller provides no independent warranty for any Products and Software. Any order arising out of this offer will be governed by the conditions contained in Eaton Selling Policy 25 -000 effective November 1, 2017 (copy attached). Buyer’s sole and exclusive remedy for any alleged non - conforming part, defect, failure, inadequacy, or breach of any warranty related to Products and Software (collectively, “Defects”) shall be limited to those warranties and remedies provided by the manufacturers or licensor thereof. Seller is not responsible for obtaining or paying for access to, or uninstalling, installed Products, delivering replacement Products to the installation site, or installing replacement Products. Seller’s obligations under this Section

12.1 will be void unless Buyer provides Seller with notice of the Defect within 30 days of the date Buyer discovered or should have discovered the Defect. Buyer shall contact Seller prior to contacting the manufacturer or licensor. In the event Buyer provides notice of a Defect to the manufacturer or licensor, Buyer shall immediately notify and engage Seller on any and all discussions and actions to be taken with such manufacturer. Seller DOES NOT WARRANT that the Software will be free from errors or defects, will meet Buyer’s needs, or will operate without interruption. Seller DOES NOT WARRANT that the Software will provide fail -safe performance when used in hazardous environments, including any application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage. If Seller supplies any Products and Software which include open source software, Seller is not liable for defects in title or quality of the information, software or documentation, or for ensuring that it is correct, accurate, free of third-party property rights and copyrights, complete and/or usable.

12.2. Private Label Product Warranty. Solely as it pertains to those Products with Seller’s private label brands (collectively “Private Label Products”), Seller warrants that the Private Label Products are new and are free from defects in material and workmanship under normal use and conditions for a period of one (1) year from the original invoice date. If the Private Label Products fail to conform with the foregoing warranty during the warranty period, Buyer shall promptly notify Seller and Seller will, at its option and as Buyer’s sole and exclusive remedy, either (i) repair or replace the defective Private Label Products; or (ii) refund to Buyer the amount paid for the defective Private Label Products.

12.3. Services Warranty. Seller warrants that the Services it provides will be performed in a professional manner consistent with relevant industry standards. Provided Buyer notifies Seller in writing and in sufficient detail of a breach of the Services warranty in this se ction 12.3 within fifteen (15) days after provision of the non -conforming Services, Seller will, at its option, (a) re-perform the Services at no additional cost to Buyer or (b) credit Buyer the fees actually paid to Seller associated with the non -conforming Services. This is Buyer’s sole and exclusive remedy, and Seller’s sole and exclusive liability, with respect to any breach of warranty relating to the Services it provides. This Services warranty is personal to Buyer and may not be assigned, transferred or passed-through to any third party.

12.4. Forfeiture of Warranty. The warranties described herein do not cover wear and tear and shall be ineffective and not apply to those Products, DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4

TERMS AND CONDITIONS OF SALE
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Software and Services that have been subjected to misuse, abuse, neglect, accident, damage, improper installation, unauthorized modification, or improper or unauthorized maintenance or repair, including, but not limited to, use, maintenance or repair not in accordance with the manufacturer’s or other provider’s specifications, license or instructions.

12.5. Buyer’s Information. Buyer acknowledges and agrees that, in performing its obligations under these Terms, Seller will rely upon the accuracy and completeness of the information and documentation Buyer provides, and that Seller’s performance is dependent on Buyer’s provision of complete and accurate information and data. It is Buyer’s responsibility to ensure that the Products, Software, and Services are the ones that it has requested and that all specifications and quantities are correct.

12.6. DISCLAIMER. THE FOREGOING WARRANTIES ARE EXCLUSIVE AN D IN LIEU OF, AND SELLER DISCLAIMS AND EXCLUDES,

AND BUYER WAIVES, ALL OTHER EXPRESS AND IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO

ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AGAINST REDHIBITORY DEFECTS,

CONFORMITY TO ANY REPRESENTATION, DESCRIPTION, OR SPECIFICATION, PERFORMANCE, NON-INFRINGEMENT, AND OF

ANY OTHER TYPE, REGARDLESS OF WHETHER ARISING BY LAW (STATUTORY OR OTHERWISE), COURSE OF PERFORMANCE, COURSE OF DEALING, OR ANY OTHER LEGAL OR EQUITABLE BASIS. I N THE EVENT DISCLAIMER OF WARRANTY

STATEMENTS ARE DISALLOWED BY LAW, SUCH EXPRESS OR IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO THE LESSER OF THE APPLICABLE WARRANTY PERIOD OR THE MINIMUM PERIOD REQUIRED BY LAW. EXCEPT AS OTHERWISE SET FORTH HEREIN, THE PRODUCTS, SOFTWARE, AND SERVICES ARE PROVIDED “AS IS” EXCEPT TO THE EXTENT THE MANUFACTURER OR LICENSOR HONORS ANY WARRANTY EXPRESSLY MADE BY IT.

13. PROPRIETARY RIGHTS. LICENSE.

13.1. Intellectual Property Ownership. Each party shall retain ownership of all right, title and interest in and to its pre-existing intellectual property, Confidential Information, materials and/or Deliverables. Buyer grants to Seller a fully paid -up, non-exclusive, non-assignable, non-transferable, non-sublicensable license to use Buyer Material to perform its obligations during the term of the applicable SOW or Order. Upon payment in full of the applicable fees, Seller grants Buyer a fully paid -up, limited, non - exclusive, non-assignable, non-transferable, non-sublicensable, perpetual license to use and reproduce, for Buyer’s own internal business operations, the Deliverables (and any Seller Materials solely as provided by Seller as part of the Deliverables). Services will not be interpreted as “work for hire”.

13.2. Software License. If applicable, Buyer shall be granted a limited license to use any Software strictly pursuant to the license agreement provided by the Product or Software manufacturer, and Buyer shall be bound by and comply with and ensure that its Customer complies with, at all times, any license terms pertaining to such Product or Software. If applicable, unless otherwise agreed to in writing, Software associated with a Product is licensed and not sold to Buyer. Buyer shall, and shall cause its Customer to (i) comply with any applicable laws, regulations, industry standards and third party rights in connection with its access to and use of the Software; (ii) accept and comply with all obligations contained in the license agreement provided by the Product or Software manufacturer; and (iii) use reasonable and diligent efforts pursuant to industry standards to protect and maintain user information collected by Buyer’s applications, including personally -identifiable information, from unauthorized access or use.

Buyer shall not, and Buyer shall instruct its Customer to not: (i) transfer, assign or sublicense the Software, or its license rights thereto, to any other person, organization or entity, including through rental, timesharing, s ubscription, hosting, or outsourcing the Software, except as specifically set forth herein; (ii) use the Software for any unauthorized purpose; (iii) attempt to create any derivative version thereof; (iv ) remove or modify any marking or notice on or displa yed through the Software or documentation; or (v) de - compile, decrypt, reverse engineer, disassemble or otherwise reduce same to human-readable form. In the event Software and/or Services are provided and accessed by Buyer through the internet at a websit e provided by Seller, Buyer acknowledges and agrees that Seller is not responsible for (i) Buyer’s access to the internet, (ii) any breaches of security, interruptions and/or interceptions of information or communication through the internet, and (iii) cha nges or losses of data through the internet.

Further, Buyer acknowledges that security of transmissions over the internet cannot be guaranteed.

14. INDEMNIFICATION AND INSURANCE REQUIREMENTS.

14.1. By Seller. Seller hereby transfers any intellectual property indemnity from the manufacturer of Products, Software, and Services to Buyer. Seller’s obligation to indemnify Buyer shall not be greater than the intellectual property indemnity provided by the manufacturer of such Products, Software, and Services and shall only apply if Buyer complies with section 14.3 herein. In the event of any such infringement claim, Seller shall, as Buyer’s sole and exclusive remedy, and at Seller sole option: (i) procure for Buyer the right to continue using the affected Pr oducts, Software or Services; (ii) replace the affected Products, Software, or Services with non-infringing Products, Software or Services; (iii) modify the affected Products, Software, or Services so they are non- infringing; or (iv) if fees were paid in advance, refund any prepaid fees associated with the affected Products, Software, or Services. Seller’s indemnification obligation does not apply if (a) Buyer continued to use the Products, Software or Services after Seller informed Buyer of modifications required to avoid infringement; or (c) the allege d infringement results from Buyer’s misuse, modification or enhancement of the Products, Software, and/or Services, whatever the case may be, or from the use of such in combination with other products not provided or approved by Seller.

To the furthest extent allowed by law, Seller shall defend, indemnify and hold harmless Buyer from and agai nst any and all direct claims, losses, liabilities, damages, costs and expenses (including losses and costs incurred by Buyer and any reasonable attorney's fees and costs) which arise from Seller’s negligence or willful misconduct; a breach of Seller’s confidentiality (information not of public record) obligations arising from Seller’s negligence or willful misconduct; or Seller’s violation of a law applicable to Seller’s performance under the contract.

If Seller subcontracts all or any portion of the services to be performed in connection with this Agreement, Seller will require each subcontractor to indemnify, hold harmless and defend you and your officers, officials, employees, agents and volunteers in accordance with this paragraph.

This section shall survive termination or expiration of this Agreement.

14.2. By Buyer. Buyer shall indemnify and defend Seller and its affiliates, directors, officers, affiliates, employees, agents, successors, and permitted assigns (“Indemnitees”) against any claims, demands, damages, liabilities and expenses (including court costs and reasonable attorneys' fees) that Indemnitees incur as a result of or in connection with: (a) any third-party claims arising from Buyer’s: (i) failure to obtain any consent, authorization or license required for Indemnitees’ use of Buyer Materials; (ii) use of the Products, Software, or Services in any manner (e.g., solely or in combination) not expressly permitted by these Terms or the applicable license agreement or specifications provided by the Product and/or Software manufacturer or provider of Services; (iii) misuse, modifications, enhancements, or programming to the Products, Software, Se rvices; (iv) breach of its obligations, representations, and warranties under these Terms; or (v) gross negligence in connection with the performance of its obligations under these Terms; (b) Indemnitees’ compliance with any technology, designs, instructions or requirements, including any specifications provided by Buyer or a third party on Buyer’s behalf; and (c) any reasonable costs and attorneys’ fees and expenses required for Indemnitees to respond to a subpoena, court order or other official government inquiry regarding Buyer’s use of the Products, Software, or Services.

14.3. Notification. The indemnified party shall: (i) provide prompt written notice to the indemnifying party; (ii) reasonably cooperate in connection with the defense or settlement of the claim, including providing all reasonable information and assistance at the indemnifying party’s cost; and (iii) give DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4

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the indemnifying party sole control over the defense and settlement of the claim, provided that any settlement of a claim shall not include a specific performance obligation or admission of liability by the indemnified party. Failure to provide timely notice that prejudices the indemnifying party shall relieve the indemnifying party of its obligations under these Terms to the extent the indemnifying party has been prejudiced and the failure to provide timely notice shall relieve the indemnifying party of any obligation to reimburse the indemnified party for its attorney’s fees incurred prior to notification.

14.4. The foregoing indemnities are personal to Seller and Buyer and may not be transferred or assigned to anyone except the manufacturer or a subcontractor performing any of the work in connection with this agreement. This section 14 states the parties’ exclusive remedies for any claims arising under sections 14.1 and 14.2, other than any remedies that may be available against third party manufacturers or providers of the Products, Software or Services.

14.5. INSURANCE REQUIREMENTS (a) Throughout the life of this Agreement, SELLER shall pay for an d maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to d o business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by BUYER'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to BUYER, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured.

14.6. (b) If at any time during the life of the Agreement or any extension, SELLER or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to SELLER shall be withheld until notice i s received by BUYER that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to BUYER. Any failure to maintain the required insurance shall be sufficient cause for BUYER to terminate this Agreement. No action taken by BUYER pursuant to this section shall in any way relieve SELLER of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by BUYER that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent.

14.7. (c) The fact that insurance is obtained by SELLER shall not be deemed to release or diminish the liability of SELLER, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify BUYER shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by SELLER. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of SELLER, vendors, suppliers, invitees, contractors, sub-contractors, subcontractors, or anyone employed directly or indirectly by any of them.

15. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELLER BE LIABLE FOR

ANY LOST PROFITS, LOST BUSINESS, LOST REVENUE, OR ANY OTHER SPECIAL, INCIDENTAL, LIQUIDATED, INDIRECT, OR

CONSEQUENTIAL DAMAGES, HOWEVER ARISING, EVEN IF THE PARTIES HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE. NO LIQUIDATED OR DELAY DAMAGES SHALL APPLY UNLESS AMOUNTS AND ASSOCIATED DELIVERY MILESTONES ARE EXPLICITY STATED IN THE ORDER.

FURTHERMORE, TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER’S LIABILITY ON ANY CLAIM ARISING OUT OF OR

CONNECTED WITH THESE TERMS OR THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCTS, SOFTWARE, OR

SERVICES, WHETHER IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), MISREPRESENTATION, BREACH OF CONTRACT, OR OTHERWISE; , SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID FOR THE PRODUCTS, SOFTWARE, AND/OR SERVICES GIVING RISE TO THE CLAIM ; however, such limitation of liability does not apply to: (i) SELLER’S indemnity and insurance obligations per Section 14 herein; or (ii) any claims arising out of SELLER’s fraud or willful misconduct.

16. TERMINATION AND SUSPENSION.

16.1. In addition to and subject to Seller’s rights set forth in section 6, in the event of any material breach of these Terms, Order, or SOW by either party, the non-breaching party may cancel the applicable Order or SOW by giving thirty (30) days' prior written notice thereof; unless the party in breach has cured the breach prior to the expiration of the thirty (30) day period.

16.2. In the event Seller or Buyer terminates an Order, Buyer shall not be entitled to any refund or credit of fees paid or payable hereunder. Buyer shall remain liable for Pay ment of invoices for Products and Software already delivered and Services already performed and for the fees and costs described in section 3 above, and payment of any manufacturer cancellation charges for unshipped items. In the event an Order is terminated, all licenses granted therein shall also terminate. Subject to the limitations and other provisions of these Terms, any provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of these Terms.

16.3. In addition to any other remedies provided under these Terms or applicable law, Seller may exercise any reclamation rights and/or suspend or terminate an Order or SOW with immediate effect if Buyer: (i) fails to pay any amount owed to Seller when due; (ii) fails to comply with any of its obligations herein; (iii) experiences an adverse change in financial position or becomes a credit risk; or (iv) becomes insolvent, receivership, reorganization or assignment for the benefit of creditors, to the extent permissible under law (each, an “Insolvency Event”).

17. CONFIDENTIALITY. The receiving party shall protect the disclosing party’s Confidential Information with the same degree of care as the receiving party normally uses in the protection of its own Confidential Information, but in no case with any less degree than reasonable care. The receiving party shall not disclose to any third party any Con fidential Information it receives from the disclosing party. Confidential Information excludes information that: (i) is publicly available other than by an act or omission of the receiving party; (ii) subsequent to its disclosure was lawfully received from a third party; (iii) was known by the receiving party prior to its receipt without any breach of any confidentiality obligations; or (iv) was independently developed by the receiving party without use of the disclosing party's Confidential Information. If the receiving party becomes legally obligated to disclose any Confidential Information by subpoena, court order or other lawful government action, the receiving party may disclose the Confidential Information only to the extent so ordered and, to the extent permitted by law, after providing prompt written notification to the disclosing party of the pending disclosure. Neither party may use such Confidential Information in any way for any purpose, except as authorized under the Order or SOW. Either party may disclose Confidential Information to its auditors or attorneys under an obligation of confidentiality no less stringent, or Seller to its affiliates and/or third parties on a need-to-know basis to the extent necessary. If Seller offers to sell Buyer Products, Software, or Services from a specific manufacturer, Buyer shall not purchase such Products, Software, or Serv ices directly from said manufacturer unless Seller provides prior written approval.

18. COMPLIANCE WITH LAW. Each party shall comply wi th all applicable laws, rules and regulations, including but not limited to, export and import, trade restrictions, FARs, anti -bribery and anti -corruption, anti -money laundering, anti -human trafficking and slavery, environmental protection, and health and safety. Products and Software may be subject to export controls under the laws, regulations, sanctions and/or directives of the United States and other countries, in which case, these Products and Software are only authorized for use (e.g., via a governmen t-approved and issued export license, which Buyer must obtain) by the ultimate end -user in the destination identified in the transaction documents between DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4

TERMS AND CONDITIONS OF SALE
Effective as of October 25th, 2022 Page 5 of 9

Seller and Buyer. Buyer shall not sell, export, re-export or transfer, or cause a deemed export or re-export of the Products and Software (in their original form or after being incorporated into other items) to any county or person to which/whom sell, export, re- export or transfer (actual or deemed) is prohibited without first obtaining all required authorizations or licenses. To the extent permitted by law, Buyer shall indemnify and hold Seller harmless from any loss or damage arising from its violation of any such laws, rules, and regulations. Furthermore, Buyer shall not use, transfer or access any Products, Software, or Services for end use relating to any nuclear, chemical or biological weapons, or missile tec hnology unless authorized by the manufacturer and the U.S. government by regulation or specific license. If Seller receives notice that Buyer is or becomes identified as a sanctioned or restricted party under applicable law (including without limitation, the U.S. Commerce Department Bureau of Industry and Security (“BIS”) Denied Persons List; Entity List or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) Specially designated Nationals and Blocked Persons List; or the U.S. Sta te Department Directorate of Defense Trade Controls (“DDTC”) Debarred Parties List), Seller will not be obligated to perform any of its obligations under any Order or SOW. Equipment, systems, or services provided by Seller may incorporate, include, or use telecommunications equipment, systems, parts, components, elements, or services that have sourcing restr ictions depending on the intended use under section 889 of the National Defense Authorization Act for Fiscal Year 2019 (Pub. L. No. 115-232).

19. PRIVACY. Each party shall comply with all applicable laws governing the collection, use and disclosure of personal data (as defined by applicable domestic and international data protection laws) and must obtain any required consents with respect to the handling of personal data as required by law. Buyer acknowledges that Seller is headquartered in the United States and operates globally, that data collected by Seller from Buyer in connection with these Terms may be transferred into and/or processed in the United States or other locations by Buyer or an authorized third party/subcontractor, Buyer and expressly consents to such transfer and processing.

20. FORCE MAJEURE. Seller shall not be liable for any failure to perform its obligations under an Order or SOW resulting directly or indirectly from, or contributed to or by acts of God, acts of terrorism, civil or military authority, epidemic or pandemic, fires, strikes or other labor disputes, accidents, floods, war, riot, inability to secure raw material or transportation facilities, hacking or other malicious attack, dissolution of the applicable manufacturer’s business, acts or omissions of carriers, or any other circumstances beyond Seller’s reasonable control.

21. LAW. VENUE . These Terms and any transactions contemplated herein shall be governed according to the substa ntive laws of the State of California, without regard to principles of conflicts of law, and shall not be governed by the U.N. Convention on the International Sale of Goods.

Any issue, dispute or controversy (“Dispute”) between the parties, including with respect to contract formation or the interpretation of these Terms, that cannot be commercially resolved by the parties shall, by agreement of parties, be submitted to nonbinding mediation as a condition precedent to litigation. If Seller elects mediation, the parties shall mutually agree upon the mediator and shall share equally in the mediator’s fees.

22. RELATIONSHIP OF PARTIES. The parties are independent contractors and expressly disclaim any partnership, franchise, joint venture, agency, employer/employee, fiduciary or other special relationship. A person who is not a party to an Order or SOW shall not have any benefit or rights under or in connection with either.

23. GENERAL. These Terms shall be construed and interpreted without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. No amendments, modifications, waivers, rescission or termination of these Terms can be made through the parties’ course of dealings and no such change can be made except in writing and signed by authorized representatives of the parties. Failure by a party to exercise any right or remedy under these Terms shall not be deemed a waiver of such right or remedy unless in writing signed by the party, nor shall any waiver be implied from the acceptance of any payment. No waiver by a party of any right shall extend to or affect any other right, nor shall a waiver by a party of any breach extend to any subsequent breach. Buyer shall not assign an Order or SOW, by operation of law or otherwise, without the express written approval of Seller. Any attempt to assign or transfer all or any part of these Terms without first obtaining that written consent will be void or voidable, at Seller’s election. Any provision of these Terms that is prohibited or unenforceable in an y jurisdiction shall, as to such jurisdiction, be limited or eliminated to the minimum extent required by that jurisdiction, and the remaining provisions shall remain in full force and effect. Buyer acknowledges that the terms or content of any hyperlinked document, as amended from time to time, are incorporated in these Terms by reference and that it is Buyer’s responsibility to review the terms or content in the hyperlinks referenced. All notices under these Terms must be in writing (e.g., e-mail or physical mail) and addressed to the other party at its address set forth in the Order or SOW.

In the event Seller provides product storage-related Services to Buyer under a Storage Term Sheet, Order or other documentation which specifically references these Terms; then the following additional terms and conditions shall apply. Any capitalized terms used herein and not defined shall have the meeting set forth in the Storage Term Sheet, as applicable. The term “Company” and “Buyer” shall have the same meaning for purposes of the Terms. In the event of a conflict between the following additional terms and conditions and the Terms, these terms and conditions shall prevail.

24. Term and Termination. The Storage Term Sheet shall run for the Storage Term (if no Storage Term in specified, the term shall be 90 days) and shall thereafter automatically renew for successive thirty (30) day renewal terms unless earlier terminated as provided herein. Either party may terminate the Storage Term Sheet by providing at least thirty (30) days prior written notice to the other party. Further, Seller may immediately terminate this Storage Term Sheet in the event Buyer fails to timely satisfy any invoice due to Seller. Upon the effective date of the termination of this Storage Term Sheet, Seller shall ship, at Buyer’s sole risk and expense, any remaining Products that are being stored on Buyer’s behalf to the Designated Buyer Ship- To Location.

25. Storage of Products. For Buyer’s benefit, Seller shall receive, unload, and store the Products at the Facility. Upon prior notice to Buyer, Seller may change the location of the Facility. The Products shall be stored at the Facility at Buyer’s sole risk and expense.

26. Shipping. Upon Buyer’s issuance of a Shipping Order (as defined below), and at Buyer’s sole risk and expense, Seller shall ship the Products to the Designated Ship-To Location. A “Shipping Order” shall mean a written request issued by Buyer to Seller that identifies: (i) the specific Product to be shipped; (ii) the quantity of Products to be shipped; (iii) the method of shipping selected by the Buyer; and (iv) the shipping destination, if different from the Designated Ship-To Location. Following acceptance of a Shipping Order, Seller shall ship the requested quantity of Products identified in the Shipping Order as soon as commercially reasonable, unless a specific date is mutually agreed to by the parties. If Buyer does not specify the mode of shipment or carrier, Seller shall use commercially reasonable efforts to ship the Products in the most cost -effective manner but does not guarantee that it will be the least expensive option available. Delivery of the Products being stored on Buyer’s behalf may be made in one or multiple shipments based on Seller’s discretion. Shipping charges shall be included on Seller’s invoice to Buyer; provided, however, that Seller may require, in its discretion, that Buyer prepay the fees and costs associated with shipping.

27. Invoicing and Payment. Regardless if the Products are being stored on Buyer’s behalf or if they have already been shipped to the Designated Buyer Ship-To Location, Buyer shall timely satisfy the invoices issued by Seller to Buyer for the purchase of the Products. Seller shall invoice Buyer for the Storage Fees plus applicable tax, and Buyer shall pay Seller the Storage Fees within Payment Terms of the date of the invoice. In the event Buyer fails to pay the total sums due on an invoice by the due date, the entire outstanding balance due to Seller on all invoices shall be accelerated and become due in full immediately and the maximum allowable charge and/or interest allowed by applicable laws shall be applied to all past due accounts DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4

TERMS AND CONDITIONS OF SALE
Effective as of October 25th, 2022 Page 6 of 9

commencing from the due date of the invoice until paid. Seller shall also be entitled, in addition to all other remedies available at law or in equity, to suspend performance of under the Storage Term Sheet and recover reasonable attorneys’ fees and/or other expenses incurred collecting all outstanding sums from Buyer or otherwise enforcing or successfully defending the Terms. Seller may set off any amount due from Buyer from any amounts due to Buyer.

28. Title and Risk of Loss to the Products. Seller is only storing Product that has been purchased by Buyer. As such, in the case of a Storage Terms Sheet, title to the Product and risk of loss shall at all times remain with Buyer, including, but not limited to, when they are being stored at the Facility. Buyer acknowledges and agrees that Seller shall have no obligation whatsoever to maintain any insurance specifically covering the Product.

As such, Buyer shall be solely responsible for, and shall be required to maintain insurance to cover any risk of loss to the Products while in storage at the Facility. Buyer agrees to indemnify, defend, hold harmless and release Seller and its affiliates and their respective shareholders, officers, directors, employees, agents, successors and assigns from all liabilities arising from any loss or damage to the Products due to any cause whatsoever, including fire, insects, rodents, rust, normal wear and tear, leakage, moisture, changes in temperature, acts of God, deterioration by time, or damage or for any loss or damage from causes beyond Seller’s reasonable control. Further, Buyer shall be responsible for all risk of loss to the Products while en route to the Designated Buyer Ship-To Location or to such other destination as Buyer may designate in writing.

DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4

TERMS AND CONDITIONS OF SALE
Effective as of October 25th, 2022 Page 7 of 9

Exhibit A

MINIMUM SCOPE OF INSURANCE

Coverage shall be at least as broad as:

1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “prope rty damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non -owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligat ions under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.”

2. The most current version of Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership , maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto).

3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.

4. Technology Professional Liability (Errors and Omissions) insurance appropriate to SELLER’S profession. Coverage shall be sufficiently broad to respond to duties and obligations as is undertaken by SELLER in this agreement and shall include but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, t rademark, trade dress, invasio n of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines penalties and credit monitoring expenses with limits sufficient to respond to these obligations.

MINIMUM LIMITS OF INSURANCE

SELLER, or any party the SELLER subcontracts with, shall maintain limits of liability of not l ess than those set forth below. However, insurance limits available to BUYER, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured:

1. COMMERCIAL GENERAL LIABILITY:

(i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement.

2. COMMERCIAL AUTOMOBILE LIABILITY:

$1,000,000 per accident for bodily injury and property damage.

3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits.

4. EMPLOYER’S LIABILITY:

(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.

5. TECHNOLOGY PROFESSIONAL LIABILITY (Errors and Omissions) appropriate to the Seller’s profession:

(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.

UMBRELLA OR EXCESS INSURANCE

In the event SELLER purchases an Umbrella or Excess insurance policy(ies ) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insura nce policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the BUYER, its officers, officials, employees, agents and volunteers.

DEDUCTIBLES AND SELF-INSURED RETENTIONS
DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4

TERMS AND CONDITIONS OF SALE
Effective as of October 25th, 2022 Page 8 of 9

SELLER shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and SELLER shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the BUYER’S Risk Manager or his/her designee. At the option of the BUYER’S Risk Manager or his/her designee, either:

(i) The insurer shall reduce or eliminate such deductibles or self -insured retentions as respects BUYER, its officers, officials, employees, agents and volunteers; or
(ii) SELLER shall provide a financial guarantee, satisfactory to BUYER’S Risk Manager or his/her designee, guaranteeing payment of losses and related investigations, claim administ ration and defense expenses. At no time shall BUYER be responsible for the payment of any deductibles or self-insured retentions.

OTHER INSURANCE PROVISIONS/ENDORSEMENTS

The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions:

1. BUYER, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. SELLER shall estab lish additional insured status for the Buyer and for all ong oing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04 13 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85.

2. The coverage shall contain no special limitations on the scope of protection afforded to BUYER, its officers, officials, empl oyees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be av ailable to the Additional Insured.

3. For any claims relating to this Agreement, SELLER’S insurance coverage shall be primary insurance with respect to the BUYER, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the BUYER, its officers, officials, employees, agents and volunteers shall be excess of SELLER’S insurance and shall not contribute with it. SELLER shall establ ish primary and non-contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13.

The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following pro vision: SELLER and its insurer shall waive any right of subrogation against BUYER, its officers, officials, employees, agents and volunteers.

If the Technology Professional (Errors and Omissions) insurance policy is written on a claims-made form:

1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by SELLER.

2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period.

3. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by SELLER, SELLER must purchase “extended reporting” coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first.

4. A copy of the claims reporting requirements must be submitted to BUYER for review.

5. These requirements shall survive expiration or termination of the Agreement.

All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to BUYER. SELLER is also responsible for providing written notice to the BUYER under the same terms and conditions. Upon issuance by the insurer, broker, o r agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, SELLER shall furnish BUYER with a new certificate and applicable endorsements for such policy(ies).

In the event any policy is due to expire during the work to be performed for BUYER, SELLER shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy.

Should any of these policies provide tha t the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits.

The fact that insurance is obtained by SELLER shall not be deemed to release or diminish the liability of SELLER, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnifica tion to b e provided by DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4

TERMS AND CONDITIONS OF SALE
Effective as of October 25th, 2022 Page 9 of 9

SELLER. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of SELLER, its principals, officers, agents, employees, persons under the supervision of SELLER, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them.

VERIFICATION OF COVERAGE
SELLER shall furnish BUYER with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the BUYER’S Risk Manager or his/her designee prior to BUYER’S execution of the Agreement a nd before work commences. All non -ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of BUYER, SELLER shall immediately furnish Buyer with a complete copy of any insurance policy required under this Agr eement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement.

SUBCONTRACTORS

If SELLER should subcontract all or any portion of the services to be performed under this Agreement, SELLER shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein and SELLER shall ensure that BUYER, its officers, officials, employees, agents and volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with SELLER and BUYER prior to the commencement of any work by the subcontractor.

DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4

Eaton Corporation
Electrical Engineering Service & Systems

5735 W. Las Positas Blvd., Suite 100
Pleasanton, California 94588

Contact: Raymond Cooper
Phone: (925) 416-9169
[email protected]

Proposal for Power Metering Dashboard Solution

Wastewater Treatment Plant
City of Fresno, California

Power Metering Dashboard & Integral Remote
Racking Installation

March 24, 2023
Eaton Proposal No.: SFK1-220630-01-RC REV. 3 FINAL

DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California
Power Metering Dashboard MARCH 2023

Eaton Proprietary and Confidential
Unauthorized Use and/or Disclosure is Strictly Prohibited

EATON CORPORATION 1

EATON CORPORATION 1

1. Project Summary
The Wastewater Treatment Plant for the City of Fresno, California is seeking to procure the hardware for an Eaton Power Metering Dashboard. This proposal outlines the Power Metering Dashboard hardware necessary per our knowledge of the current facility conditions.

2. Equipment Bill of Material
Eaton will provide the following Bill of Material:

Qty. Description Catalog Number Drawing No.
4 PX Dashboard PXDBCSRT-2A1-D2 71Y8989
59 MR2 Pan Assembly and Integral
Remote Racking Mechanism MR2APCANGABBB 71Y8989
7 Handheld Pendant 1C19628G02 71Y8989

3. Services Scope of Work
Eaton Corporation will provide the necessary field service personnel, tools, materials, and approved test equipment to perform the scope of work as described herein.

INCOMING 12KV SWITCHGEAR
• Install Setup and Configuration of (1) PX Dashboard System for communication o Note: PX Dashboard already purchased by customer

• Install Integral Remote Racking System in each of the circuit breaker cells below:
o Main Breaker Cell “53-BKR-201”
o Tie Breaker Cell “53-BKR-301”
o Main Breaker Cell “53-BKR-101”
o Feeder Breaker Cell “53-BKR-202”
o Feeder Breaker Cell “53-BKR-102”
o Feeder Breaker Cell “53-BKR-203”

DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California
Power Metering Dashboard MARCH 2023

Eaton Proprietary and Confidential
Unauthorized Use and/or Disclosure is Strictly Prohibited

EATON CORPORATION 2

EATON CORPORATION 2

MAIN SWITCHGEAR BUILDING

SWITCHGEAR M-MVS A
• Install Setup and Configuration of (1) PX Dashboard System for communication o Note: PX Dashboard already purchased by customer

• Install Integral Remote Racking System in each of the circuit breaker cells below:
o Main Breaker Cell “29-BKR-101”
o Tie Breaker Cell “29-BKR-301”
o Feeder Breaker Cell “29-BKR-102”
o Feeder Breaker Cell “29-BKR-103”
o Feeder Breaker Cell “29-BKR-104”
o Feeder Breaker Cell “29-BKR-105”
o Feeder Breaker Cell “29-BKR-106”
o Feeder Breaker Cell “29-BKR-107”
o Feeder Breaker Cell “29-BKR-108”
o Feeder Breaker Cell “29-BKR-109”

SWITCHGEAR M-MVS B
• Install Setup and Configuration of (1) PX Dashboard System for communication o Note: PX Dashboard already purchased by customer

• Install Integral Remote Racking System in each of the circuit breaker cells below:
o Main Breaker Cell “29-BKR-201”
o Feeder Breaker Cell “29-BKR-202”
o Feeder Breaker Cell “29-BKR-203”
o Feeder Breaker Cell “29-BKR-204”
o Feeder Breaker Cell “29-BKR-205”
o Feeder Breaker Cell “29-BKR-206”
o Feeder Breaker Cell “29-BKR-207”
o Feeder Breaker Cell “29-BKR-208”
o Feeder Breaker Cell “29-BKR-209”

A SIDE SWITCHGEAR BUILDING

A SIDE SWITCHGEAR - 100
• Purchase (1) PX Dashboard System
• Install Setup and Configuration of (1) PX Dashboard System for communication

DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California
Power Metering Dashboard MARCH 2023

Eaton Proprietary and Confidential
Unauthorized Use and/or Disclosure is Strictly Prohibited

EATON CORPORATION 3

EATON CORPORATION 3

• Install Integral Remote Racking System in each of the circuit breaker cells below:
o Main Breaker Cell “60-BKR-100”
o Tie Breaker Cell “60-BKR-300”
o Feeder Breaker Cell “60-BKR-101”
o Feeder Breaker Cell “60-BKR-102”
o Feeder Breaker Cell “60-BKR-103”
o Feeder Breaker Cell “60-BKR-104”
o Feeder Breaker Cell “60-BKR-105”
o Feeder Breaker Cell “60-BKR-106”
o Feeder Breaker Cell “60-BKR-107”
o Feeder Breaker Cell “60-BKR-108”

A SIDE SWITCHGEAR - 200
• Purchase (1) PX Dashboard System
• Install Setup and Configuration of (1) PX Dashboard System for communication

• Install Integral Remote Racking System in each of the circuit breaker cells below:
o Main Breaker Cell “60-BKR-200”
o Feeder Breaker Cell “60-BKR-201”
o Feeder Breaker Cell “60-BKR-202”
o Feeder Breaker Cell “60-BKR-203”
o Feeder Breaker Cell “60-BKR-204”
o Feeder Breaker Cell “60-BKR-205”
o Feeder Breaker Cell “60-BKR-206”
o Feeder Breaker Cell “60-BKR-207”
o Feeder Breaker Cell “60-BKR-208”

BLOWER BUILDING 1

DOUBLE ENDED SWITCHGEAR – 100 & 200
• Purchase (1) PX Dashboard System
• Install Setup and Configuration of (1) PX Dashboard System for communication

• Install Integral Remote Racking System in each of the circuit breaker cells below:
o Main Breaker Cell “04-BKR-101”
o Tie Breaker Cell “04-BKR-301”
o Feeder Breaker Cell “04-BKR-102”
o Feeder Breaker Cell “04-BKR-103”
o Feeder Breaker Cell “04-BKR-104”
o Main Breaker Cell “04-BKR-201”
DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California
Power Metering Dashboard MARCH 2023

Eaton Proprietary and Confidential
Unauthorized Use and/or Disclosure is Strictly Prohibited

EATON CORPORATION 4

EATON CORPORATION 4

o Feeder Breaker Cell “04-BKR-202”
o Feeder Breaker Cell “04-BKR-203”
o Feeder Breaker Cell “04-BKR-204”

DOUBLE ENDED SWITCHGEAR 400 & 500
• Purchase (1) PX Dashboard System
• Install Setup and Configuration of (1) PX Dashboard System for communication

• Install Integral Remote Racking System in each of the circuit breaker cells below:
o Main Breaker Cell “04-BKR-501”
o Tie Breaker Cell “04-BKR-601”
o Feeder Breaker Cell “04-BKR-502”
o Feeder Breaker Cell “04-BKR-503”
o Main Breaker Cell “04-BKR-401”
o Feeder Breaker Cell “04-BKR-402”
o Feeder Breaker Cell “04-BKR-403”

ADDITIONAL SCOPE OF WORK
• Dashboard User Accessibility Configuration & Training o User creation/deprovisioning
o Ability to access audit logs
o Remove or disable the ability to power off systems remotely o Provide user accessibility configuration training to COF administrative staff

DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California
Power Metering Dashboard MARCH 2023

Eaton Proprietary and Confidential
Unauthorized Use and/or Disclosure is Strictly Prohibited

EATON CORPORATION 5

EATON CORPORATION 5

4. PRICING

Item

Description

Each

QTY. Price (CN)
001 Materials
PX Dashboard, Processor and Mounting Kits $40,911 4 $163,642 MR2 Pan Assembly & Integral Remote Racking Mechanism $4,290 59 $253,107 Handheld Pendant $991 7 $6,936
Misc. Materials (Hardware, Mounting, Wire, Etc.) $144 59 $8,508 Foreseer to DT3000 Relays LOT $693 59 $40,898

Total Materials Price: $473,091

Price for the above scope of work is based on performing site work Monday – Friday, 8:00AM – 5:00PM.

5. ORDER ENTRY

1. Reference the Eaton Proposal Number listed on this proposal

2. Issue a purchase order to EATON CORPORATION

3. Email purchase order to: [email protected]
Please reference Proposal Number SFK1 -220630-01-RC on any purchase order issued in response to this proposal.

6. DELIVERY
The scheduling of work will be mutually agreed upon between the customer and Eaton’s Electrical Engineering Services & Systems. Please allow three weeks for scheduling purposes.

Job Title =>
Field
Service
Specialist /
Engineer
Design
Engineer Scheduler
Project
Manager
Hourly Rate => $232 $276 $276 $323
1 56 0 0 20 $19,452 $19,452
2 0 0 0 80 $25,840 $25,840
3 0 80 0 0 $22,080 $22,080
4 0 0 0 24 $7,752 $7,752
5 56 0 0 0 $12,992 $12,992
6 1037 0 0 0 $240,584 $41,630 $282,214
7 112 0 0 0 $25,984 $25,984
8 56 0 0 0 $12,992 $12,992
9 0 0 56 0 $15,456 $15,456
Additional Scope of Work
10 12 0 0 0 $2,754 $2,784
* Task 6 - other direct cost includes hotels, meals etc. $427,546 Project Reporting
Prevailing Wage Reporting
Total Labor Price:

Dashboard User Accessibilty Configuration & Training
Planning, Meetings, and Site Visits
Engineering and Design
Mobilization and Demobilization
Installation, Setup, and Configuration of PX Dashboard
System
Installation of Integral Remote Racking System in each
Breaker Cell / FSR Specialist
Project Travel Time
Task Description
Total Labor
Costs
Total Other
Direct Costs Total Costs
Job Safetey Review
DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California
Power Metering Dashboard MARCH 2023

Eaton Proprietary and Confidential
Unauthorized Use and/or Disclosure is Strictly Prohibited

EATON CORPORATION 6

EATON CORPORATION 6

7. QUALIFICATION / CLARIFICATIONS
• Seller shall not be responsible for any failure to perform, or delay in performance of, its obligations resulting from the COVID-19 pandemic or any future epidemic, and Buyer shall not be entitled to any damages resulting thereof.
• All work to be completed at straight time, Monday through Friday except for scheduled outages as defined in our proposal.
• No time/labor included for site specific training meetings/classes/videos. If required, additional charges will apply and will be billed separately from this proposal. • Minor repairs and adjustments t aking a minimal amount of time will be included in our base price. If additional time or material is required, it will be charged as an extra. • Any significant delays due to adverse weather will result in additional charges. • If straight time work is requ ired to be performed on an overtime basis, Customer will be billed the difference between the straight time and overtime rate. • Stand-by power needs, if deemed necessary, are not included. • Applicable fees for outage related costs including stand -by and re-connect services are not included.
• Eaton will correct minor deficiencies. Minor deficiencies are those that require no special tools, parts, etc. and take a minimal amount of time to perform. Repair labor beyond this, and all material, will be considered as extra.
• Method of procedure (MOP) development or meeting time not outlined in the scope of work will be treated as an extra.
• Replacement parts and additional labor required to perform any repairs necessary for proper operation of your equipment will be accomplished exclusively at your written direction and authorization.
• Delays beyond the control of Eaton, extras and authorized additional work will be charged in accordance with the Eaton’s Electrical Engineering Services & Systems 2022 Price List PL02700001E.
• Delay time: If Eaton arrives onsite to perform scheduled work an d the work is cancelled, Eaton will charge for four (4) hours minimum per person, plus travel expenses if no replacement work can be scheduled. If sufficient notice (72 hours) is given to Eaton when canceling scheduled work, no additional charge will apply. • Third party billing will be subject to an additional 15% fee.

8. SAFETY TRAINING OF EATON FIELD PERSONNEL
• All Eaton field personnel received training to comply with OSHA CFR1910 Electrical Safety Standard, which sets minimum safety rules and practices for the design, operation, and maintenance of high-voltage systems (over 600 volts). Safety standards are in place to meet or exceed NFPA 70E requirements, and appropriate Personal Protective Equipment (PPE) have been issued.
• The customer is responsible to ensure that any supporting plant personnel have also be fully trained in electrical safety and provided with the appropriate personnel protective equipment.

9. DIVISION OF RESPONSIBILITY

Eaton Responsibilities:

DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California
Power Metering Dashboard MARCH 2023

Eaton Proprietary and Confidential
Unauthorized Use and/or Disclosure is Strictly Prohibited

EATON CORPORATION 7

EATON CORPORATION 7

• Eaton will perform necessary adjustments, which are required to bring equipment to satisfactory operating condition, or review these with you prior to commencement of any additional work.
• Eaton will obtain authorization in advance before performing any additional work. In these cases, Eaton will provide services on a time and material basis. Eaton will provide a listing of all applicable skills classifications that apply to the execution of this contract and identify the hourly rates (both straight time and overtime ) that will apply for the duration of the contract. Eaton will also indicate escalation if applicable and, and in addition, provide a definition of when overtime rates apply.
• Eaton will provide you with a minimum notice of 72 hours of intent to service any equipment.
• Eaton shall furnish test engineers, field technicians, support personnel, tools, equipment, materials, supplies and transportation as required.
• Eaton will provide and install safety locks, as required, and in accordance with the facility safety guidelines.
• Eaton will perform voltage test and install necessary circuit / equipment safety grounds to assure safe working conditions
• Upon completion of work:
• Eaton will remove safety grounds installed by Eaton
• Eaton will remove safety locks installed by Eaton.

Customer Will Be Responsible For The Following:

• Providing free access to equipment within their facility. • Ensuring that all equipment is available upon arrival of Eaton personnel, including removal from service to permit continuous progression of work. Delay time in making equipment available will be treated as an extra.
• Identifying site contact for this project.
• Providing electricians to remove equipment covers and re-install the same when required. • Coordinating all outages and perform all switching to de-energize and isolate equipment to be serviced.
• Ensuring that all circuits to be de-energized have been clearly identified and that all plant personnel and downstream operations are aware of the required outage date, time and duration. This includes maintaining power to vital or necessary plant equipment and processes during the performance of this scope of work. • Providing a copy of the past maintenance records to Eaton personnel. • Providing manufacturers maintenance manuals upon arrival of Field Engineer/s. • Supplying a complete set of electrical plans, including the plant single -line diagram, specifications, and any pertinent change orders to Eaton before commencement of work. • Supply a suitable and stable source of power for operation of test and motorized equipment at each test site when normal power is removed or authorize Eaton to obtain a source of auxiliary power, Eaton shall specify requirements. Any non-standard generators rentals will result in a price adder to this proposal.
• Providing a place to receive and unload replacement equipment, test equipment or other supplies.
• Providing special tools supplied by equipment manufacturers.

10. WHY EATON FOR THIS PROJECT
DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California
Power Metering Dashboard MARCH 2023

Eaton Proprietary and Confidential
Unauthorized Use and/or Disclosure is Strictly Prohibited

EATON CORPORATION 8

EATON CORPORATION 8

• Eaton field personnel have years of experience with low, medium, and high voltage electrical distribution equipment and have been factory trained at the Eaton Distribution Equipment Manufacturing Facilities and obtained outside training on other competitor s’ equipment.
• Eaton maintains a fully functional and operational remote monitoring center, which can be incorporated as part of the solutions to improve your overall electrical system reliability. • Eaton has access to the engineering departments who curre ntly design electrical equipment.
• Eaton has the following in-house technical support available to the specification engineer:
• Environmental-Health and Safety personnel
• Factory design engineers
• Power Systems Engineers
• Quality and Standards Engineers
• Eaton test equipment is state of the art and calibrated yearly. • Emergency Service available 24 hours per day, 365 days per year.

11. PROPRIETARY AND CONFIDENTIAL INFORMATION
This submittal contains Eaton proprietary and confidential information, whi ch may only be used by the City of Fresno to evaluate and respond to this submittal. By accepting this submittal from Eaton, City of Fresno agrees to not use this submittal, or any information contained herein, in any manner adverse to Eaton's interests; t o keep in confidence the submittal and all information contained; and to not disclose to any third party or publish this submittal, any portion thereof, or any information contained herein without Eaton's prior written consent.

12. TERMS AND CONDITIONS
Any order arising out of this offer will be governed by the conditions contained in Eaton Selling Policy 25-000 dated November 1, 2008. Taxes, if applicable, not included. This offer is valid for 30 days unless otherwise extended, modified, or withdrawn, in writing, by Eaton. Payments are due and payable net within thirty (30) days from the date of each invoice.

Please use proposal reference number SFK1-220630-02-RC on any purchase order issued in response to this proposal.

It is a privilege to have this opportunity to be of service. If there are any further questions or needs, please contact one of your proposal team members listed in the next section. Eaton’s Electrical Engineering Services & Systems looks forward to working with you on this project.

13. PROPOSAL TEAM CONTACTS
DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California
Power Metering Dashboard MARCH 2023

Eaton Proprietary and Confidential
Unauthorized Use and/or Disclosure is Strictly Prohibited

EATON CORPORATION 9

EATON CORPORATION 9

For questions regarding this proposal, please contact:

Eaton Corporation
Electrical Engineering Service & Systems
Service Sales Representative:

Raymond Cooper
Phone: (925) 416-9169
Email: [email protected]
Eaton Corporation
Electrical Engineering Service & Systems
Technical Application Support Engineer:

Lee Kambestad
Phone: 909-247-6559
Email: [email protected]

14. ATTACHMENTS

Eaton Selling Policy 25-000

DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California
Power Metering Dashboard MARCH 2023

Eaton Proprietary and Confidential
Unauthorized Use and/or Disclosure is Strictly Prohibited

EATON CORPORATION 10

EATON CORPORATION 10

DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California
Power Metering Dashboard MARCH 2023

Eaton Proprietary and Confidential
Unauthorized Use and/or Disclosure is Strictly Prohibited

EATON CORPORATION 11

EATON CORPORATION 11

DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California
Power Metering Dashboard MARCH 2023

Eaton Proprietary and Confidential
Unauthorized Use and/or Disclosure is Strictly Prohibited

EATON CORPORATION 12

EATON CORPORATION 12

DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4 City of Fresno, California
Power Metering Dashboard MARCH 2023

Eaton Proprietary and Confidential
Unauthorized Use and/or Disclosure is Strictly Prohibited

EATON CORPORATION 13

EATON CORPORATION 13

DocuSign Envelope ID: 348E917B-5C75-40AB-A838-12E4516CBCB4