not in lieu of any other remedies available to a Party under this Agreement, at law, or in equity.
14.3 Assignment. Contractor may not assign, transfer or otherwise convey or delegate any of its rights or duties under this Agreement to any other Party (except to the successor in a merger or acquisition of Contractor) without the prior written consent of Tesla, and any attempt to do so will be void. This Agreement shall be binding upon the respective successors and permitted assigns of the Parties.
14.4 Governing Law. This Agreement will be interpreted and construed in accordance with the substantive laws of California and the United States generally applicable therein, without regard to any provisions of its choice of law rules that would result in a different outcome. Notwithstanding the foregoing, if a Claim relates to or is the subject of a mechanic’s lien, the party asserting such Claim may proceed in accordance with applicable law to comply with the lien notice or filing deadlines.
14.5 Audits and Records. During business hours and upon reasonable advance notice, Tesla and its agents may inspect, examine and audit the records and data of Contractor (and its Subcontractors) that pertain to the Services to verify (a) the accuracy of Contractor’s invoices, and (b) Contractor’s compliance with this Agreement. In support of the foregoing right, Contractor will keep and maintain (i) financial records relating to this Agreement in accordance with generally accepted accounting principles, (ii) records substantiating Contractor’s invoices, (iii) records pertaining to Contractor’s compliance with this Agreement and the Work Authorizations, and (iv) such other operational records pertaining to performance of the Services as Contractor keeps in the ordinary course of its business. Contractor will retain such records for the longer of three (3) years after the Term ends or as required by applicable Laws. Contractor will make such records available to Tesla and its auditors for examination and copying upon request.
14.6 Notices. All formal notices, requests, demands, approvals and communications under this Agreement (other than routine operational communications) (collectively, “Notices”) will be in writing and may be served either (i) in person or (ii) by registered or certified mail with proof of delivery, addressed to the Party at the addresses set forth below. Notices given as described in the preceding sentence will be considered received on the day of actual delivery. A Party may change its address or designee for notification purposes by giving the other Party prior written notice of the new address or designee in th e manner provided above. The Parties may mutually agree that certain types of routine approvals and notices of a non -legal nature may be given by electronic mail.
In the case of Tesla: With a copy to:
Tesla, Inc. Tesla, Inc.
13101 Tesla Road
Austin, Texas 78725
13101 Tesla Road
Austin, Texas 78725
Attn: Attn: Legal Department
In the case of Contractor: (Note: If no information is listed here for Contractor, notices shall be sent to the attention of
the Contractor representative who signs this
MSA.)
Attn:
14.7 Interpretation. Section references are to sections of the document in which the reference is contained and will be deemed to refer to and include all subsections of the referenced section. The section headings in this Agreement are for reference purposes only and may not be construed to modify or restrict any of the terms of this Agreement. This Agreement will be deemed to have been written by both Parties. Section references are to sections of the document in which the reference is contained and will be deemed to refer to and include all subsections of the referenced section. The section headings in this Agreement are for reference purposes only and may not be construed to modify or restrict any of the terms of this Agreement. This Agreement is written in the English language, and the English text of this Agreement shall prevail over any translation hereof.
Unless the context requires otherwise, (i) “including” (and any of its derivative forms) means including but not limited to, (ii) “may” means has the right, but not the obligation to do something and “may not” means does not DocuSign Envelope ID: 57B09814-B982-4E69-BEF1-FFBFA17D269E have the right to do something, and (iii) “will” and “shall” are expressions of command, not merely expressions Master Services Agreement (Construction)
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of future intent or expectation.
14.8 Order of Precedence . In the event of conflicts or discrepancies among the Contract Documents, interpretations will be based on the following priorities: (a) Work Authorization, solely to the extent the Work Authorization parties agree that the Work Authorization amends this Agreement, (b) this Agreement, as amended, including all Exhibits; (c) Addenda, if any, with those of later date having precedence over those of earlier date; (d) Modifications to the Drawings and Specifications issued after the execution of the Work Authorization, Specifications, Drawings, and Addenda issued prior to execution of the Work Authorization; and (f) Specifications and Drawings. Unless specifically enumerated in the Agreement or any Work Authorization, the Contract Documents do not include the advertisement or invitation to bid, instructions to bidders, sample forms, other information furnished by the Owner in anticipation of receiving bids or proposals, the Contractor’s bid or proposal, or portions of Addenda relating to bidding requirements.
14.9 Severability. If any provision of this Agreement or a Work Authorization is held invalid by a court with jurisdiction over the Parties to this Agreement, such provision will be severed from the Agreement, and the remainder of this Agreement will remain in full force and effect.
14.10 Third Party Beneficiaries . This Agreement is entered into solely between Tesla and Contractor and, except for the Parties’ indemnification obligations under Section 11 (Indemnification) and the Service Recipients, will not be deemed to create any rights in any third parties or to create any obligations of either Tesla or Contractor to any third parties.
14.11 Survival. Any provision of this Agreement that contemplates or governs performance or observance subsequent to termination or expiration of this Agreement will survive the expiration or termination of this Agreement for any reason, including the following Sections: 6 (Confidentiality), 7 (Intellectual Property Rights), 9 (Representations and Warranties of Contractor), 11 (Indemnification), 12 (Liability), 13 (Dispute Resolution) and 14 (Miscellaneous) .
14.12 Entire Agreement. This Agreement including all Schedules constitutes the entire agreement between the Parties with respect to its subject matter and merges, integrates and supersedes all prior and contemporaneous agreements and understandings between the Parties, whether written or oral, concerning its subject matter. Any terms and conditions on any order or written notification from either Party that purport to vary or supplement this Agreement shall not be effective or binding on the other Party. This Agreement may be amended or modified solely in a writing signed by a duly authorized representative of each Party.
14.13 Defined Terms. Terms used in this Agreement with initial capitalization have the meanings specified where used or in this Section 14.13.
(a) “Addenda” or “Addendum” means written information adding to, clarifying or modifying the bidding documents.
(b) “Affiliate” means with respect to an entity, any other entity or person controlling, controlled by, or under common control with, such entity. For purposes of this Agreement, "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) “Change” means any material change to the scope of, charges for, or other contractual commitments of a Party with respect to, the Services being provided by Contractor. (d) “Change Order” means a mutually agreed Change to the scope, timing, manner or cost of performing the Services pursuant to an Work Authorization. A change order may not modify the terms of the body of this Agreement.
(e) “Claim” means any demand, or any civil, criminal, administrative or investigative claim, action or proceeding (include arbitration) asserted, commenced or threatened against an entity or person by an unaffiliated third party. For the purposes of this definition, an employee of either Party is considered an unaffiliated third party.
(f) “Commercially Reasonable Efforts” means taking all such steps and performing in such a manner as a well managed company would undertake where it was acting in a determined, prudent and reasonable manner to achieve a particular desired result for its own benefit.
DocuSign Envelope ID: 57B09814-B982-4E69-BEF1-FFBFA17D269E (g) “Deliverable” means any work product identified as a ‘Deliverable’ in the Agreement or an Work Master Services Agreement (Construction)
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Authorization.
(h) “Drawings” mean graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams.
(i) “Intellectual Property Rights” means all (i) patents, patent applications, patent disclosures and inventions (whether patentable or not), (ii) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names, and registrations and applications for the registration for any of them, together with all goodwill associated with any of them, (iii) copyrights and copyrightable works (including computer programs and mask works) and registrations and applications for registration, (iv) trade secrets, know-how and other confidential information, (v) waivable or assignable rights of publicity, waivable or assignable moral rights, (vi) unregistered and registered design rights and any applications for registration, and (vii) database rights and all other forms of intellectual property, such as data. (j) “Law(s)” means any statute, regulation, ordinance, rule, order, decree or governmental requirement enacted, promulgated or imposed by any governmental authority at any level (e.g., municipal, county, province, state or national).
(k) “Malware” means program code or programming instruction(s) or set(s) of instructions intentionally designed to disrupt, disable, harm, interfere with or otherwise adversely affect computer programs, data files or operations, or other code typically described as a virus, Trojan horse, worm, back door or other type of harmful code.
(l) “Modification” is (1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Work Authorization or (4) a written order for a minor change in the Work issued by the Owner that does not increase costs or construction time.
(m) “Open Source Code” means software that requires as a condition of its use, modification or distribution, that it be disclosed or distributed in source code form or made available at no charge, including, without limitation, software licensed under the GNU General Public License (GPL) or the GNU Lesser/Library GPL. (n) “Party” means either Tesla or Contractor, as required by the context. (o) “Project” means a group of related functions or activities that spans multiple days, weeks, or months and builds cumulatively toward the achievement of defined target outcomes or objectives. A Project typically has multiple phases or life-cycle stages and involves written project plans with defined interim milestones and deliverables to measure progress toward the achievement of its target outcomes or objectives. The Services provided for each Tesla Facility will be deemed a separate Project for purposes of this Agreement. (p) “Specifications” means that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services.
(q) “Substantial Completion” or “Substantially Complete” is further defined as the date certified respectively, by the Owner when (i) the Owner have prepared a Punchlist of Work remaining to be performed and has established sufficient reserves for purposes of completing such Punchlist of Work, and (ii) all required governmental or regulatory inspections applicable to the Contractor’s Work have been conducted and all final approvals required for occupancy have been obtained from all authorities having jurisdiction over the Project.
Any such occupancy or use described above shall not negate or change the responsibility of th e Contractor to Owner for satisfactory completion of the Work nor shall such occupancy or use negate any insurance provisions required hereunder.
(r) “Supplier” means a person or entity who has a direct or indirect contract with Contractor or a Subcontractor at any tier to provide any equipment, supplies, materials, or other goods in connection with the Work and who is not a Subcontractor or a Sub-subcontractor. (s) “Tesla Data” means all data and information regarding Tesla, its customers and suppliers that is either:
(i) furnished, disclosed or otherwise made available to Contractor Personnel, directly or indirectly, by or on behalf of Tesla pursuant to this Agreement; or (ii) collected or created by Contractor Personnel on behalf of DocuSign Envelope ID: 57B09814-B982-4E69-BEF1-FFBFA17D269E Tesla in the course of performing the Services. Tesla Data will be deemed to be Confidential Information that Master Services Agreement (Construction)
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is subject to the NDA.
(t) “Tesla Facility” means, collectively, the Tesla facility or real property at which Contractor will perform Services and the reasonable office space, furniture, fixtures, equipment, hardware, software, telephones, office supplies, and other facility resources to be provided or made available by Tesla to Contractor Personnel who are assigned by Contractor to work on Tesla premises by mutual agreement of the Parties, as evidenced in the applicable Work Authorization.
(u) “Use” means the right to use, execute, display, copy, perform, distribute copies of, maintain, modify, enhance, and create derivative works of software or other copyrighted or copyrightable works. (v) “Work Authorization” means the form of document that will be used to authorize Contractor to perform Services by mutual agreement of the Parties. When duly executed by the authorized representatives of both Parties, a Work Authorization becomes an “Work Authorization.”
15. MECHANIC’S LIENS
15.1 If at any time, a lien is filed on the Project arising out of the Work, the Contractor, within five (5) days after the date of the filing of such notice of lien, and to the Owner’s satisfaction and in accordance with the mechanic’s lien laws of the place where the Project is located, shall discharge and remove the lien or post a bond satisfactory to the Owner for such lien or claim of lien and shall indemnify and hold the Owner harmless for all costs, including, but not limited to, attorneys’ fees and expert fees, regarding such lien or claim of lien, together with interest on the same from the date any such cost was paid by Owner until reimbursed by Contractor at the rate of interest provided in the Agreement, except if the lien is the result of Owner’s nonpayment of an amount contained in a previously submitted pay application over which no good- faith dispute exists between Owner and Contractor. The obligations of Contractor under this Subsection shall survive the expiration or termination of the Contract.
15.2 Contractor shall promptly advise Owner in writing of any action, administrative or legal proceeding or investigation as to which Subsection 15.1may apply, and provided the Own er is not in default of its payment obligations to the Contractor, Contractor, at Contractor’s expense, shall assume on behalf of Owner, and conduct with due diligence and in good faith, the defense thereof with counsel satisfactory to Owner, provided that Owner shall have the right to be represented therein by advisory counsel of its own selection and at Contractor's expense, and provided further that if the defendants in any such action include Contractor and Owner and Owner concludes that Co ntractor has a conflict of interest and cannot adequately represent the Owner, then the Owner shall have the right to select separate counsel to participate in the defense of such action on its own behalf for which fifty percent (50%) of the cost shall be at the Contractor’s expense. In the event of failure by Contractor to fully perform in accordance with this Subsection, Owner, has the option of, and without relieving Contractor of its obligations hereunder, to so perform, but all costs and expenses, including but not limited to attorneys’ fees and expert fees, so incurred by Owner in that event shall be reimbursed by Contractor to Owner, together with interest on the same from the date any such expense was paid by Owner until reimbursed by C ontractor at the rate of interest provided in the Agreement. The obligations of Contractor under this Subsection shall survive the expiration of termination of the Contract.
15.3 The Owner shall release any payments withheld due to a lien or claim of lien if the Contractor removes the lien or obtains security acceptable to the Owner or a lien bond that is (i) issued by a surety acceptable to Owner, (ii) in a form and substance satisfactory to the Owner, and (iii) in an amount not less than one hundred fifty pe rcent (150%) of such lien claim. By posting a lien bond or other acceptable security, however, the Contractor shall not be relieved of any responsibilities or obligations under this Section 15.3, including without limitation the duty to defend and indemnify the Owner. The cost of any premiums incurred in connection with such bonds and security shall be the responsibility of the Contractor and shall not be a part of, or cause any adjustment to, the Contract Price.
15.4 Notwithstanding anything to the con trary contained herein, if the Contractor does not promptly post the bond, the Owner may withhold 150% of the amount of such lien until such lien is discharged or the Owner is protected by bond satisfactory to the Owner in the amount of at least 150% of the amount of the lien or other DocuSign Envelope ID: 57B09814-B982-4E69-BEF1-FFBFA17D269E Master Services Agreement (Construction)
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Tesla, Inc.
By:
Printed:
Title:
Date:
Contractor
By:
Printed:
Title:
Date:
Company:
Address:
means satisfactory to the Owner. If no monies are available to be withheld, the Contractor shall within three (3) consecutive calendar days refund to the Owner 150% of the amount of such lien(s).
15.5 Notwithstanding anything in Section 15 to the contrary, and in the event the Contractor fails to make payments to its Subcontractors or Suppliers in accordance with this Contract and does not provide justifiable reasons to the Owner upon Owner’s request, Owner may, at the Owner’s sole discretion, elect to make any payment requested by the Contractor on behalf of a Subcontractor of any tier or a Supplier, jointly payable to the Contractor and each Subcontractor and/or Supplier. The Contractor and such Subcontractor or Suppl ier shall be responsible for the allocation and disbursement of funds included as part of any such joint payment. In no event shall any joint payment be construed to create any (i) contract between the Owner and a Subcontractor or Supplier of any tier, (ii) obligations from the Owner to such Subcontractor or Supplier, or (iii) rights in such Subcontractor or Supplier against the Owner. The Contractor agrees to sign such additional documents and take such action as the Owner shall deem necessary to carry out the intent of this Section 15.5.
Intending to be legally bound, each of the undersigned parties has caused its duly authorized representative to execute this Agreement as of the Effective Date.
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EXHIBIT A
APPROVED WORK ORDER NO. FOR SERVICES
1. Introduction. This Work Order is entered into as of the Date of Order set forth below by and between the Tesla affiliate set forth below (for the purposes of this Work Order, “ Tesla”) and Contractor, and made a part of that certain Master Services Agreement between [INSERT TESLA ENTITY] (“Tesla ”) and [CONTRACTOR NAME AND ADDRESS] ( hereinafter “Contractor”) dated [INSERT AGREEMENT DATE] (the “Agreement”). This Work Order sets forth the terms and conditions for the Project described in this Work Order. All capitalized terms not defined in this Work Order have the respective meanings set forth in the Agreement.
2. Description of Project Services and Performance Measurement.
Contractor will perform the following Services pursuant to this Work Order. (a) [describe services, any required resources, any Deliverables, and any deadlines or milestones]:
(b) Project Site:
(c) Project Milestones (specify delivery dates): [IF APPLICABLE] (i) Contractor shall begin Work on , and shall be substantially complete as soon as due diligence and good practice will permit, but not later than . or (ii)
Project Milestones Deadline
Substantial Completion Date
Final Completion Date
(d) List of applicable Plans and Specifications:
3. Work Schedule:
From the mutual execution of this Work Order until Substantial Completion, at Tesla’s request, Contractor shall provide weekly written updates to Tesla describing the Services completed to date and a comparison of costs incurred versus budgeted amounts and providing an updated Work Schedule for the remainder of the Services, including the anticipated date of Substantial Completion.
Tesla may request additional services after the Effective Date. Unless otherwise agreed by the Parties in writing, the fees for such services will be calculated by multiplying the Productive Hours by the applicable agreed billing rates set forth herein, or currently on file.
Tesla shall have the right within the general scope of the Work and without notice to any surety or sureties of the Contractor, to make changes in the Work pursuant to a written change order (“Change Order”), either by altering the nature of the same or by adding to or deducting from it as more specifically set forth in the Construction General DocuSign Envelope ID: 57B09814-B982-4E69-BEF1-FFBFA17D269E Master Services Agreement (Construction) Annex 2
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Conditions incorporated herein.
4. Contract Price. With reference to Section 4 (Charges) of the Agreement, Tesla will pay the Contractor for the performance of work specified herein the total price of (INSERT TOTAL AMOUNT OF WORK ORDER IN TEXTand no cents) ($00,000.00).
5. Monthly Invoicing: Tesla will pay Contractor the amount above in accordance with the Agreement, subject to receipt of invoices from Contractor in a form and content reasonably acceptable to Tesla. Such invoices shall contain sufficient information to allow Tesla to determine the accuracy of the amounts billed and shall include invoices from all subcontractors, any relevant certificates of completion, unconditional lien waivers for all past work and conditional lien waivers for current work. Tesla will pay invoices not disputed in good faith as per the Agreement, less a retainage of 10%. Tesla will pay the accumulated retainage 30 days after the later of (a) receipt of the Close Out Book; or (b) Final Completion; in each case together with invoices and final unconditiona l lien waivers from all subcontractors.
Payment terms are otherwise as set forth in the Agreement, however Contractor shall be paid by Tesla within ( ) days of Tesla’s receipt of the applicable invoice for such amounts.
6. Key Contractor Positions. With reference to Section 3.2 (Key Contractor Positions) of the MSA, the Key Contractor Positions for purposes of this Work Order, if any, are:
7. Service-Specific Terms and Conditions. Annexes or additional documents attached hereto set forth additional terms and conditions which may apply for purposes of this Work Order, if applicable to the Services to be performed hereunder.
Intending to be legally bound, each of the undersigned parties has caused its duly authorized representative to execute this Approved Work Order as of the date last entered below.
TESLA, INC. Contractor
By:
Printed:
Title:
Date:
By:
Printed:
Title:
Date:
Company:
Address:
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EXHIBIT B
FORM OF CHANGE ORDER
TESLA MASTER SERVICES AGREEMENT (CONSTRUCTION) CHANGE ORDER
Work Authorization No:
Change No.: Date:
Architect/Engineer:
To (Contractor):
Your proposal dated has been accepted for making the following changes:
DESCRIPTION OF CHANGE DECREASE INCREASE
(Attach additional sheets if required.)
NOTICE TO PROCEED DATE: ORIGINAL CONTRACT SUM:
Contract Time Days Complete* Subtotal
Present Contract New (Add) (Deduct)
This Change Present Contract Sum
New Contract Time New Contract Sum
*SUBSTANTIAL COMPLETION DATE
This Change Order is an amendment to the Agreement, and all contract provisions shall apply unless specifically exempted. The amount and time Change designated are the maximum agreed to by both the Owner and the Contractor for this change. In consideration of the foregoing adjustments in Contract Time and Contract Sum, the Contractor hereby releases Owner from all Claims, demands, or causes of action arising out of the transactions, events and occurrences giving rise to this Change Order. This written Change Order is the entire agreement between Owner and Contractor with respect to this Change Order. The cost of the change indicated on the face of this Change Order is the entire amount of the change, and no backup documentation attached hereto may reserve the Contractor’s right to increase the contract time or the cost of this change for extended overhead or general conditions or any other reason.
AGREED TO IN FORM AND CONTENT
CONTRACTOR DATE
ARCHITECT/ENGINEER DATE
TESLA, INC. DATE
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T=SLn
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