EFTA00314480.pdf

ACCEPTANCE The enclosed SourceOne Terms and Conditions are an integral part of this Proposal. A Contract between SourceOne, Inc. (DE) and 9 East 71st Street shall be effective as of the date the proposal is executed and delivered, issuance of a purchase order or other notice to proceed with reference to the Proposal, or permit for SourceOne to commence performance of any services in accordance with the Proposal. whichever first occurs. The enclosed SourceOne Terms and Conditions shall apply to the performance of services by SourceOne notwithstanding any preprinted terms or conditions contained in a purchase order that may be issued by 9 East 71st Street and shall control in the event of any conflict with any other portion of the Contract. Sou rccOne, Inc. (DE) 9 Eas,fjl.t Street Signature Name Title Sign Name CoAthz016, Title 121/0/20/0 Date Date SourceOne, Inc. I 112 Canal Street I Roston, MA 02114 I P NEW YORK EFTA00314480 SOURCEONE TERMS AND CONDITIONS The following Terms and Conditions (*Terms and Conditions') are an integral part of the accompanying proposal (*Proposal") to perform the services described therein (*Services') as submitted by SourceOne to the customer named in the Proposal (*Customer"). A contract between SourceOne and Customer for the performance of the Services (*Agreement') shall be effective as of the earliest date that Customer executes and delivers the Proposal, issues a purchase order or other notice to proceed to SourceOne with reference to the Proposal, or permits SourceOne to commence performance of any Services in accordance with the Proposal; provided, however, that these Terms and Conditions shall apply to the performance of Services by SourceOne notwithstanding any preprinted terms or conditions contained in Customers purchase order. In the event of any conflict between these Terms and Conditions and any other portion of the Agreement, these Terms and Conditions shall control. Payment Payment for Services shall be for the amount set forth on the invoice as provided by SourceOne, and due no later than thirty (30) days from receipt of invoice unless otherwise specified. Customer shall reimburse SourceOne for all expenses incurred in connection with the provision of the Services pursuant to this Agreement if mutually agreed to in writing. SourceOne shall itemize and submit such expenses to Customer from time to time, and Customer shall reimburse SourceOne within seven (7) days of such submission. In the event Customer fails to timely or completely pay any amount under this Agreement (i) such failure shall be a material breath: (ii) interest at the rate of one percent (1.0%) per month shall accrue on all past due amounts until such amounts. including accrued interest. are paid in full; (iii) SourceOne shall have the right to immediately cease providing Customer with the Services: and. (iv) SourceOne shall have the right to pursue all other legal and equitable remedies available to it. All fees set forth in this Agreement are exclusive of all sales, use, value-added. excise, property, withholding, and other taxes and duties. Customer shall pay or promptly reimburse SourceOne for all taxes and duties assessed by any authority in connection with this Agreement. LIMITED WARRANTY AND DISCLAIMER. Notwithstanding any other provision of the Agreement, until the first anniversary of the Completion Date (as hereinafter defined), SourceOne warrants that the Services shall have been performed in a professional manner consistent with the level of care and skill ordinarily exercised by other providers of such services performing under similar circumstances. Customer's sole remedy for any breach of such warranty shall be a refund of the portion of the fees paid to SourceOne for the deficient Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, SOURCEONE HAS NOT AND SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPUED, INCLUDING. WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Indemnification. Each party (indemnifying Party') shall indemnify, defend, and hold harmless the other party Remit.," fit Tert3 S CalabOAS 1 1 (042a1DX1) ('Indemnified Party) against and from any and all actions. causes of action, claims, demands, costs. liabilities. expenses (including reasonable attorneys' fees and court costs) and damages arising out of any and all third party claims to the extent caused by the Indemnifying Party's negligent or willful acts or omissions or any material breach by the Indemnifying Party of this Agreement. In connection with any claim or action described in this paragraph. the Indemnified Party (i) will give the Indemnifying Party prompt written notice of the claim. (u) will cooperate with the Indemnifying Party (at the Indemnifying Party's expense) in connection with the defense and settlement of the claim. (iii) will permit the Indemnifying Party to control the defense and settlement of the claim, provided that the Indemnifying Party may not settle the claim without the Indemnified Party's prior written consent (which will not be unreasonably withheld) unless the claim involves only the payment of money damages, and (iv) the Indemnified Party (at its cost) may participate in the defense and settlement of the claim. Insurance. Until the first anniversary of the Completion Date (as hereinafter defined). SourceOne shall maintain insurance against liabilities caused by the Services as follows' Statutory limits required by applicable Workers' Compensation law; Commercial General Liability -- $1,000,000 combined single limits per occurrence of bodily injury and property damage and $2,000,000 annual aggregate: Comprehensive Auto Liability — $1,000,000 per accident for Bodily Injury and Property Damage Liability (Combined Single Limit); and Professional Liability (Errors & Omissions) — $1.000.000 each claim and per project aggregate. SourceOne shall cause Customer to be named as additional insured under the Commercial General Liabikty and Comprehensive Auto Liability policies required by this paragraph in respect of liability caused by the Services. LIMITATION OF LIABILITY. IN NO EVENT SHALL SOURCEONE BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL. RELIANCE, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OR FOR ANY CLAIM FIRST ASSERTED AFTER THE FIRST ANNIVERSARY OF THE COMPLETION DATE (AS HEREINAFTER DEFINED). IN ANY EVENT. THE AGGREGATE LIABILITY OF SOURCEONE FOR ANY LOSS OR DAMAGES OF ANY TYPE DIRECTLY OR INDIRECTLY SUFFERED BY CUSTOMER ARISING FROM THE SERVICES PERFORMED BY SOURCEONE OR ANY FAILURE, ACT. OMISSION OR BREACH OF THE AGREEMENT BY SOURCEONE SHALL NOT EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO SOURCEONE PURSUANT TO THE AGREEMENT. Site Conditions. Customer shall provide a safe working environment for SourceOne personnel performing Services at the site(s) referenced in the Proposal, including providing reasonable notice of and training with respect to site-specific environmental, health and safety policies and procedures. Customer shall fully disclose to SourceOne information pertaining to any existing conditions at such site(s) or that may affect SourceOne's ability to perform the Services and Page 1 of 2 EFTA00314481 SOURCEONE TERMS AND CONDITIONS shall be responsible for any additional costs attendant to such conditions. Use of Drawngs, Specifications and Reports. Drawings. specifications and reports prepared by SourceOne are instruments of professional services to be used only in connection with the Services and are not suitable for any other purpose. Customer shall indemnify, defend and hold harmless SourceOne against and from any and all actions, causes of action, claims, demands, costs, liabilities, expenses (including reasonable attorneys fees and court costs) and damages arising out of any reuse of drawings, specifications or reports without SourceOne's prior written authorization. 6? jc_ Publicity uStome -6Icno That Source A r rne a s an eStOM kidevendent Contracto(. Customer acknowledges that SourceOne is acting solely as an independent contractor and shall not have any authority to bind Customer as agent or in any other capacity. Force Majeure. SourceOne shall be excused from delays in performing or from any failure to perform hereunder to the extent that such delay or failure results from any one or more of the following: acts of God, abnormal weather conditions or natural catastrophes: strikes, lock-outs or other industrial disturbances; acts of public enemies; war, whether or not declared: sabotage: terrorist acts: riots: civil disturbances: explosions: acts or omissions of governmental authonlies; unavailability of or curtailment of fuel supplies; any interruption of electric or other utility service, or any change. interference, disruption or other defect in the sup* or character of the electric energy or other utility service utilized by Customer, equipment failure arising from a manufacturing or design defect or the failure of the manufacturer or others to timely implement necessary repairs or replacements; or any other cause or event not reasonably within the control of SourceOne. Termination. Either party may terminate the Agreement prior to completion of the Services ("Completion Date') in the event of a material breach of its terms by the other party, if such party fails to cure such breach within seven days after notice from the other party of such breach. Assionment. Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other, except to a third party pursuant to a merger, sale of all or substantially all assets, or other corporate reorganization. Notice. All notices and other communications given or made pursuant to the Agreement shall be deemed to have been duly given or made (a) upon delivery, if sent by hand or by prepaid ovemight courier service, with a record of receipt, or (b) the second business day after the date of mailing. if delivered by registered or certified mail, postage prepaid, in Revel Si Terms /Corm:loons I i (0429i0x1) each case to the parties at the respective addresses set forth for them in the Proposal. Either party may change the address to which notice to it shall be addressed by giving notice thereof to the other party in conformity with the foregoing. Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of Delaware, without giving effect to any conflict or choice of law provision that would result in the Imposition of the laws of another jurisdiction. DisouteS. In the event of a dispute between the parties arising out of this Agreement, the parties agree to attempt in good faith to resolve such dispute through discussions between their respective senior executives for a period not ceeding fifteen days and thereafter to submit to non- binding mediation. If such dispute cannot then be resolved through mediation, either party may file a lawsuit. The parties consent to the exclusive jurisdiction of the federal and state courts of the State of Delaware in any action related to or arising out of the Agreement. Each of the parties hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in any jurisdiction specified in this paragraph, it being the intention of the parties to preclude the possibility of litigation between them with respect to this Agreement in any jurisdiction other than as specified in this paragraph. Each of the parties hereby agrees to waive all its rights to a jury trial of any claim or cause of action related to or arising out of this Agreement. The prevailing party in any such action shall be entitled to recover its reasonable attorney's fees and other costs incurred in such action, in addition to any other relief to which such party may be entitled. Miscellaneous. If any provision of this Agreement should be held invalid or unenforceable, the remainder of the Agreement shall be enforced to the fullest extent permitted by law. The Terms and Conditions snail survive the termination of the Agreement in accordance with their terms This Agreement represents the entire agreement between SourceOne and Customer with respect to the subject maser hereof, and supersedes any and all prior negotiations, proposals, purchase orders, representations or agreements between them, whether written or oral. Paragraph heacfings in the Agreement we for convenience of reference only and shall not be utilized in interpreting the Agreement. This Agreement may be executed by the parties hereto In counterparts (including by facsimile transmission), each of which shall be deemed an original but all of which together shall be deemed one and the same instrument. This Agreement may not be modified or amended except by a writing signed by an officer of SourceOne and an officer of Customer. Page 2 of 2 EFTA00314482 December 10, 2010 Attention: ConEdison - Customer Service Department Subject: 9 East 71" Street, NY NY 10021 Dear Customer Service Department: NES LLC authorizes SOURCEONE to conduct business on their behalf, including, but not limited to, work related to our accounts at ADDRESS including electrical, Steam and gas consumption and interconnections. If ou have an uestions, feel free to contact Richard Kahn at or . If you need to eak to a SOURCEONE representative, please contact Michael Byrnes at or e-mail him a Sincerely. Richard Kahn Cc: SOURCEONE, Michael Byrnes EFTA00314483 Ccpp!..1:Ern STATEMENT FOR ACCOUNT 7432000000, 09/01/2008 - 11/01/2010 Ba To Date Meter Number End Roan rg At:huge:ens Usage (MAO Consumpbon Dabs) On Pk Davi An Tina PIE OW BillAstounl P8Pura 10/27/2008 14888 52350 0.00 123.50 269.50 116.1312.63 87.323 10 11521 28974 0.00 146.00 11/25/2008 14686 55504 0.00 137.63 302.65 $10,277.13 18,88283 11521 30774 0.00 165 09 12130/2008 14686 58834 0.00 14213 31923 $11,447.82 $10.277 13 11521 32675 0.00 174.20 012072009 14686 62100 0.00 142.15 311.81 512.112.07 $11,447.82 11521 34529 0.00 16036 0326/2009 11521 38117 0.00 145.67 263.56 5399706 $1211207 14586 64802 0.00 11789 03,30/2009 11521 37812 0.00 155.05 NO 40 59.938 08 10.997 06 14686 87874 0.00 134.44 04/29/2009 14656 70526 0.00 116.64 258.30 59.293 57 59.938 08 11521 39339 0.00 141.46 05/2672009 14886 73104 0.00 112.79 247.64 $8.428 57 59.293 57 11521 40805 0.00 134.85 06/29/2009 14688 75850 0.00 120.20 262.77 57 709 52 5842857 11521 42354 0.00 14257 07/30)2009 14686 78303 0.00 107.02 231 60 58765.16 57.709 52 11521 43712 0.00 124.57 08,28/2009 14688 80612 0.00 101.26 216,80 $6,02548 56.765 16 11521 44965 0.00 115.54 09/21112009 14686 82924 000 100 98 216.96 36.351.95 $6.025.48 11521 46228 0.00 115.98 10/28/2009 14688 85735 000 123.31 270.88 $7,304.81 56,351.95 11521 47828 0.00 147.57 11/25/2009 11521 48054 0.00 20.95 258.53 5-1.752.23 510084.29 14688 91123 0.00 237.58 12/30/2009 11521 48337 0.00 25.25 323 42 $164.09 $003 EFTA00314484 Be To Date Melee Nun10M 240 Rea0ng AO)usl/lents Usage (MOs) Consumpocn (Keg) On Pk Dm0 NI Tame Pk DM BB Amen' NeseantS 1230/2009 14688 97859 000 297.17 323.42 3164 99 saw 01/2812010 74686 3632 0.00 251.60 273.78 510,345.10 30 00 71527 48579 0.00 22.18 02/25/2010 11521 48579 0.00 0.00 262.79 119.962.25 18.75716 14886 9665 0.00 262.79 03/30/2010 71521 48579 0.00 000 214 19 St1.736 05 19.962 25 14608 14267 0.00 274 10 04729/2010 14888 18230 0.00 100.62 220.65 58.508.16 58.736.05 11521 49228 0.00 5983 05/27/2010 11521 49264 0.00 3.33 204.06 36.633.56 38.508.16 14686 22797 0.00 200.73 0609/2070 11521 49277 0.00 1.20 197.96 36709.73 36.833 56 74686 27292 0.00 196.76 07/29/2010 14686 31221 0.00 172.17 17217 $6.354.52 66/09.73 71521 49277 0.00 0.00 06/27/2010 14668 36157 0.00 172.00 172 00 38,401.62 16.3.54 52 71527 49277 0.00 0.00 09/28/2010 71521 40281 0.00 0.37 183.43 26.772.59 58.401 62 14686 39339 0.00 183.06 10(2712010 11521 49294 0.00 1.19 205.05 57009.44 56.712.59 74686 44004 0.00 20305 EFTA00314485