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Grainger Service Holding Company d/b/a
Alliance Energy Solutions Any capitalized term not defined in these terms and conditions has the meaning set forth in the Letter of Understanding, Proposal or Statement of Work (each referred to herein as an “Agreement”) between you (“Customer”) and Grainger Service Holding Company, Inc. d/b/a Alliance Energy Solutions (“Alliance”). 1. Limited Warranty – Services. Alliance warrants that all services specified in the Agreement (the “Services”) will be performed in a workmanlike manner in accordance with Alliance’s approved specifications for a period of one year. If Alliance, its employees, its contractors and/or its agents (collectively, “Provider”) improperly perform any of the Services, Provider will promptly, upon Customer’s request, re-perform to cure the particular breach, or at Alliance’s sole option, issue a refund for the part of the Service directly attributable to the alleged defective Service. Re-performance or refund will be Customer’s sole and exclusive remedy. 2. Limited Warranty – Products. Manufacturer’s written warranty will apply to all products installed by Provider under the Agreement. Upon Customer’s request, copies of these manufacturer’s warranties will be furnished without charge to Customer. Please send requests to: Grainger Service Holding Company, Inc, d/b/a Alliance Energy Solutions, 61 Mattatuck Heights Road, Waterbury, CT 06705 U.S.A. 3. Warranty Disclaimer. PROVIDER SHALL HAVE NO LIABILITY FOR, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR AFFIRMATION OF FACT, EXPRESS OR IMPLIED, OTHER THAN AS SET FORTH IN THE AGREEMENT AND THESE TERMS AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (II) ANY WARRANTY OR AFFIRMATION OF FACT DUE TO MISUSE, IMPROPER INSTALLATION OR IMPROPER SELECTION, RECOMMENDATION, OR MISAPPLICATION OF ANY PRODUCT OR SERVICE; AND (III) ANY WARRANTY OR AFFIRMATION OF FACT THAT THE CATALOGS, LITERATURE AND WEBSITES IT PROVIDES ACCURATELY ILLUSTRATE AND DESCRIBE PRODUCTS AND SERVICES. PROVIDER RESERVES THE RIGHT TO CORRECT PUBLISHING ERRORS. 4. Limitation of Liability. PROVIDER EXPRESSLY DISCLAIMS ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES. PROVIDER’S LIABILITY IN ALL EVENTS SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE PARTICULAR PRODUCT OR PARTICULAR SERVICE THAT GIVES RISE TO ANY LIABILITY. CUSTOMER AGREES THAT ALLIANCE’S PAYMENT OF SUCH AMOUNT SHALL BE THE SOLE AND EXCLUSIVE REMEDY. THE EXHAUSTION OR UNAVAILABILITY OF ANY OTHER REMEDY SPECIFIED HEREIN SHALL NOT BE CONSTRUED OR ALLEGED BY CUSTOMER TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 5. Indemnification. (a) Customer shall defend, indemnify, and hold harmless Alliance and its respective officers, directors, employees, contractors and agents (each individually, an “Indemnified Provider Party”) from and against any and all any claims, suits, liabilities, damages, settlements, charges, taxes and any other losses or expenses (including reasonable attorneys’ fees) (collectively “Liabilities”) for physical injury to, illness or death of, any third party regardless of status, and damage to or destruction of any tangible property which the third party may sustain or incur, to the extent such Liabilities relate to the Services; except for such Liabilities relating to or arising out of the gross negligence or willful misconduct of the Indemnified Provider Party. (b) Alliance shall defend, indemnify, and hold harmless Customer and its respective officers, directors, employees, contractors and agents (each individually, an “Indemnified Customer Party”) from and against any and all any Liabilities for physical injury to, illness or death of, any third party regardless of status, and damage to or destruction of any tangible property which the third party may sustain or incur, to the extent such Liabilities directly arise from any failure of Alliance to perform the Services in a workmanlike manner; except for such Liabilities caused in whole or part by any gross negligence or willful misconduct of the Indemnified Customer Party. (c) In any action, suit or proceeding brought against an Indemnified Provider Party or Indemnified Customer Party (both referred to as an “Indemnified Party”) by reason of any such claim as specified above, the indemnifying party shall resist and defend such action, suit or proceeding by counsel of its choice, at the sole expense of indemnifying party, provided that (i) the Indemnified Party notifies the indemnifying party promptly in writing of the claim; (ii) the indemnifying party’s counsel does not give rise a conflict of interest with respect to the Indemnified Party; (iii) the indemnifying party has the sole control of the defense and all related settlement negotiation but shall keep the Indemnified Party reasonably informed of status; and (iv) the Indemnified Party provides the indemnifying party with all reasonably necessary assistance, information, and authority to perform the foregoing at the indemnifying party’s expense. 6. Hazardous Materials; Waste Disposal.
Customer will provide advance notice to Provider of the presence
of any hazardous chemical, substance, material or emission that
is or may be regulated, governed, listed or controlled pursuant
to any legal requirement or order applicable to Customer’s
premises as a toxic substance, hazardous substance, hazardous material,
dangerous or hazardous waste, dangerous good, pesticide, radioactive
material, regulated substance or any similar classification, or
any other chemical, substance, emission or material, including,
without limitation, asbestos and petroleum or petroleum-derived
products or by-products, regulated, governed, listed or controlled
or as to which liability is imposed on the basis of potential impact
to safety, health or the environment pursuant to any legal authority
(collectively, “Hazardous Materials”). Any Services performed by Provider involving the transportation, recycling or disposal of Customer’s waste will require a written acknowledgement by Customer that it is the generator of such waste, which will include the execution of waste manifest forms by Customer where applicable. Customer will use its best efforts to ensure that no Hazardous Materials are contained in the waste transported, recycled or disposed of by Provider. Customer agrees to indemnify, defend and hold harmless each Indemnified Provider Party from and against any and all Liabilities arising out of or relating to any Hazardous Materials which are or were (i) present on or about Customer’s premises prior to entering into the Agreement; (ii) improperly handled or disposed of by Customer or its employees, contractors or agents; (iii) brought, generated, produced or released on Customer’s premises by any party other than Provider; or (iv) present in any of Customer’s waste that is transported, recycled or disposed of on behalf of Customer by Provider. 7. Access to Customer’s Premises; Pre-existing Conditions. (a) Customer shall provide Provider access to Customer’s premises free of charge as necessary for Provider’s performance of the Services. Prior to Provider starting any work at Customer’s premises, Customer will (i) provide documentation that identifies any pre-existing conditions on or about Customer’s premises, including, without limitation, the presence of any hazardous conditions or Hazardous Materials present in or at the premises or breaches of any applicable laws, regulations, rules or codes relating to the premises or its operation and/or maintenance (collectively, “Pre-existing Conditions”) and (ii) allow Provider, at its option, access to Customer’s premises to perform or have performed a site evaluation, including, without limitation, a review of applicable documents and visual examination of Customer’s premises. (b) Provider will have no responsibility or liability for identifying or correcting any Pre-existing Conditions on Customer’s premises. Customer shall provide Provider access to results of any monitoring or sampling data related to or in the vicinity of Provider’s work during the term of the Agreement and, if Customer has reason to believe that site conditions have changed or will change during the term of the Agreement, Customer shall disclose such information to Provider. If Provider discovers any Pre-existing Conditions on or about Customer’s premises that were previously undisclosed to Provider by Customer, and such Pre-existing Conditions could result in Provider’s inability to complete or cause an increase in Provider’s cost of, or the time required for, the performance of any part of the work under the Agreement, the Provider, in its sole and absolute discretion, shall (i) suspend any further work under and/or terminate the Agreement without penalty to Provider or (ii) require the parties to make an equitable adjustment to the price and time schedule and modify the Agreement in writing accordingly. Customer agrees to indemnify, defend and hold harmless each Provider Indemnified Party from and against any and all Liabilities arising out of or relating to any Pre-existing Conditions, regardless of such conditions were previously disclosed to Provider. 8. Health and Safety Matters. Customer shall take all necessary precautions, at all times, for the health and safety of Provider personnel at Customer’s premises. These include, but are not limited to, providing to Provider for review, and instructing Provider personnel regarding, Customer’s safety practices including, proper and safe handling of, and protection of Provider personnel from exposure to, Hazardous Materials; confined spaces; energization and de-energization of all power systems (including, but not limited to, electrical, mechanical and hydraulic) using safe and effective lock-out/tag-out (LOTO) procedures including physical LOTO or a mutually agreed upon and permitted alternative method; Hazard Communication Program information including Material Safety Data Sheets; and conducting periodic safety meetings. Provider, may, from time to time, conduct safety audits to verify the existence of safe working conditions for Provider’s personnel. Regardless if Provider conducts safety audits, Customer will remain responsible for providing a work environment that is safe and that complies with all applicable legal requirements. Customer will make its local medical facilities and resources available to Provider personnel who need medical attention for the duration of their needs. Under no circumstance will Provider personnel be required to work more than any maximum time periods allowed by applicable law. The operation of Customer’s equipment is the responsibility of Customer. 9. Termination. Either party may terminate the Agreement at any time and for any reason upon 30 days’ written notice to the other party. If terminated by Customer, Customer shall pay Alliance an amount equal to the greater of (i) 10% of the total project cost quoted in the Agreement and any amendments thereto (the “Total Project Cost”), or (ii) an amount equal to the Total Project Cost multiplied by the percentage completion of such project at the time the notice of termination is given, as determined by Alliance. 10. Insurance. Throughout the term of the Agreement, Alliance will be covered, and will require in its arrangements with its contractors and/or agents performing work on Customer’s premises to be covered, by certain minimum levels of insurance. Alliance will maintain for its employees, (i) employer’s liability insurance with limits of $500,000 for each accident, $500,000 for each disease per employee and a $500,000 disease policy limit and workers compensation insurance in the amount required by statutory requirements governing where services are to be performed; (ii) commercial general liability insurance providing coverage for bodily injury including death, tangible property damage and contractual liability in the amount of at least $1,000,000 per occurrence and $2,000,000 in the aggregate; and (iii) business auto liability insurance covering all owned, non-owned and hired vehicles with a combined single limit of $1,000,000 per occurrence, in connection with the provision of the Services. 11. Third Party Benefit. The provisions of the Agreement are for the sole benefit of, and are binding on, the parties hereto and their successors and assigns. The Agreement confers no rights, benefits or claims upon any person or entity that is not a party to such Agreement. Customer acknowledges and agrees that any advice, recommendations, information or work product provided to Customer by Provider in connection with the Services is for the sole use of Customer and may not be relied upon by any third party; and Customer is prohibited from making such advice, recommendations, information or work product available to any third party without prior written consent from Alliance. Customer will indemnify, defend and hold harmless each Indemnified Provider Party from and against any and all Liabilities incurred or suffered by or asserted against Provider in connection with a third party claim to the extent resulting from such party’s use or possession of or reliance upon Provider’s advice, recommendations, information or work product as a result of Customer’s disclosure of such advice, recommendations, information or work product to any third party without Provider’s prior written consent. 12. Confidentiality. Provider will treat all information obtained from Customer as confidential, unless such information comes into the public domain through no fault of Provider, is independently developed by Provider without reference to such confidential information or is furnished to Provider by a third party that is under no obligation to keep the information confidential. This confidentiality obligation will survive the expiration or termination of the Agreement for three years. Notwithstanding the foregoing, the confidentiality obligation contained herein shall not apply to any confidential information that (i) relates to the tax treatment, tax structure, and all materials of any kind provided to Provider concerning such tax treatment and tax structure; (ii) is required to be disclosed pursuant to law, a valid legal process or a government or regulatory agency; or (iii) is used by Alliance, its parent and its affiliates for research and marketing purposes, provided that no marketing materials will contain Customer’s identity without Customer’s express written consent. 13. Non-Solicitation. During the term of the Agreement, and for a period of one year thereafter, Customer shall not, without the prior written consent of Alliance, directly, indirectly, or through any other party hire or attempt to hire (i) any employee of Alliance or (ii) any person who was an employee of Alliance at any point during the term of the Agreement. 14. Intellectual Property. Customer shall have no right, title, or interest in the trade names, trademarks, copyrights, domain names or any other intellectual property rights reserved by Alliance, or any trademarks or service marks owned by suppliers to Alliance. All materials contained on the www.alliance-energy.net website are subject to the ownership rights of Alliance and its suppliers. Customer shall have no right to copy or use any of the intellectual property of Alliance, its parent, subsidiaries or affiliates or suppliers without Alliance’s express permission. 15. Tax. Customer is responsible for, and unconditionally guarantees payment or reimbursement of, all applicable taxes required to be paid by Customer under law, unless Customer provides valid sales tax exemption certification. 16. Security Interest. Customer hereby grants to Alliance a first priority purchase money security interest and/or chattel mortgage in the installed products and any accounts receivable or cash from resale thereof until full payment is made to Alliance. Customer agrees to file, or permit Alliance to file, any financing statements or other appropriate documents with governmental authorities to perfect the validity, priority, and enforceability of Alliance's lien or security interest. 17. ARRA Orders. It is Customer’s responsibility to advise Alliance whether any order is funded in any part by funds from or related to the American Reinvestment and Recovery Act (“ARRA”) (Pub. L. No. 111-5) (i.e., Stimulus Funds). Upon request, Alliance will provide country of origin information so that Customer may determine compliance with any applicable requirements under ARRA Section 1605 or any other applicable regulations. 18. Force Majeure. Provider shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from acts of God, labor disruptions, shortages, inability to procure product, supplies or raw materials, severe weather conditions, catastrophic events, acts or threats of war or terrorism, or any other circumstance or cause beyond the control of Provider in the conduct of its business. 19. Assignment. Customer shall not assign the Agreement, or any interest therein, without the prior written consent of Alliance. Any actual or attempted assignment without Alliance’s prior written consent shall entitle Alliance to cancel the Agreement upon notice to Customer. Alliance shall have the right to assign its rights and obligations under the Agreement and may subcontract any portion of Alliance’s performance required under the Agreement. 20. Independent Contractor. Provider and Customer are independent contractors and not principal and agent. Nothing contained in these terms and conditions shall be construed to create a partnership, dealership, reseller, agency, employment or joint venture relationship. Customer will not have the right to bind or otherwise obligate Provider in any manner, nor will represent to anyone that it has the right to do so. 21. Waiver, Choice of Law and Venue. The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by the other party. All transactions shall be governed by the laws of the State of Delaware, excluding its conflict of law rules, and venue shall either be in the state courts in New Castle County, Delaware or the federal courts for the District of Delaware. 22. Severability. If any provision of these terms and conditions are held to be invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable term shall be severed from these terms and conditions, and the remaining terms and conditions shall be valid and fully enforceable as written. 23. Modification of Terms. Alliance's acceptance of the Agreement is subject to Customer's assent to all of the terms and conditions set forth herein. Customer’s assent to these terms and conditions shall be presumed from Customer’s signed acknowledgment contained in the Agreement, or from Customer’s acceptance of all or any part of the Services ordered. No additions or modifications of Alliance’s terms and conditions by Customer shall be binding upon Alliance, unless agreed to in writing by an authorized representative of Alliance. If a purchase order or other correspondence submitted by Customer contains terms or conditions contrary or in addition to the terms and conditions contained herein, Alliance's fulfillment of any such purchase order shall not be construed as assent to any of the terms and conditions proposed by Customer, and will not constitute a waiver by Alliance of any of the terms and conditions contained herein. 24. Complete Agreement. The terms and conditions in: (i) the Agreement; (ii) acknowledgments, (iii) audits; (iv) invoices; (v) websites; and (vi) any financing agreement between Alliance and Customer are incorporated herein by reference, and constitute the entire agreement between Customer and Alliance. In the event there is a conflict between these terms and conditions and the Agreement, the terms contained herein shall control. Last Revised 05/2011 |
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