Commercial Kitchen MeasuresRequest for Information (RFI)

Executive Summary

CenterPoint Energy Houston Electric is soliciting information from interested consultants for the implementation of commercial kitchen measures in a new or existing Mid-Stream Market Transformation program. A Request for Proposal (RFP) will be issued to those companies that express an interest by responding to this Request for Information. This program is aimed at commercial businesses that employ commercial kitchen equipment, which is a market segment that has been traditionally difficult to penetrate.

CenterPoint Energy Houston Electric provides funding for the implementation of energy efficiency improvement programs, projects or measures. The selected implementer will be responsible for participant outreach, utilizing CNP’s Vision database, recruiting trade-allies, maintaining a qualified products list, providing sales volume information, and performing measure verification, at a minimum.

The Commercial Kitchen Mid-Stream program will begin on January 1, 2021 and will continue for a five-year period until December 31, 2026. CenterPoint Energy Houston Electric reserves the right to discontinue the program at any time.

CenterPoint Energy Houston Electric, headquartered in Houston, Texas, is a domestic energy delivery company that includes electric transmission & distribution, natural gas distribution and energy services operations. The company serves more than five million metered customers primarily in Arkansas, Louisiana, Minnesota, Mississippi, Oklahoma, and Texas. With more than 14,000 employees, CenterPoint Energy and its predecessor companies have been in business for more than 140 years. For more information, visit the Web site at www.centerpointenergy.com

Program Design Requirements

The proposed commercial kitchen midstream market transformation program will provide incentives to mid-stream participants for ENERGY STAR® certified electric products. Fortunately, many types of commercial kitchen equipment are ENERGY STAR® certified and are included in the Public Utility Commission - State of Texas, Technical Reference Manual (TRM) Version 7.0 Volume 3: Non-Residential Measures.

Please be aware that the TRM does not have a deemed savings value for commercial reach-in refrigeration; however, the TRM does include savings calculations for commercial refrigeration components and for residential refrigeration. CenterPoint Energy Houston Electric will request that a commercial refrigeration deemed savings value be evaluated and included in a future version of the TRM.

Currently, commercial refrigeration savings values may be calculated using the existing ENERGY STAR® calculator. Appropriate incentives may be applied to the calculated savings results. The following list of ENERGY STAR® electric appliances are included in the Public Utility Commission State of Texas, TRM Version 7.0 Volume 3: Non-Residential Measures for program year 2020:

2.4.0 Nonresidential: Food Service Equipment

2.4.1 ENERGY STAR® Combination Ovens Measure Overview2.4.2 ENERGY STAR® Electric Convection Ovens Measure Overview2.4.3 ENERGY STAR® Commercial Dishwashers Measure Overview2.4.4 ENERGY STAR® Hot Food Holding Cabinets Measure Overview2.4.5 ENERGY STAR® Electric Fryers Measure Overview2.4.6 Pre-rinse Spray Valves Measure Overview2.4.7 ENERGY STAR® Electric Steam Cookers Measure Overview2.4.8 Demand Controlled Kitchen Ventilation2.4.9 Commercial Ice Makers Measure Overview

2.5.0 Nonresidential: Refrigeration

Market StructureThe foodservice industry is complicated and there are many components to the market structure. Consultant will be expected to identify and reach out to a complex network of foodservice participants including manufacturers, buying groups, designers, architects, and/or distributors. Consultant will be expected to develop, maintain and utilize a qualifying products list of commercial kitchen equipment that will be eligible for incentives. Eligible building types include independent restaurants, chain restaurants, elementary and secondary schools, colleges and universities, corporate foodservice operations, healthcare, hospitality and supermarkets, at a minimum.

Incentives will only be paid for qualified commercial kitchen equipment installed in CenterPoint Energy Houston Electric’s Transmission and Distribution service territory. CenterPoint Energy’s electric service territory extends from Galveston to the Woodlands and from Sealy to Baytown, Texas. 22-digit ESIID accounts beginning with 1008901 define CenterPoint Energy customers.

RFI Response Criteria Responses to this RFI should include the following information based on your knowledge in this market space:

Indicate your interest in providing a proposal for an Electric Commercial Kitchen Market Transformation Mid-Stream Program

Provide your experience in developing and implementing a commercial kitchen mid-stream program

Outline your suggestions/comments/concerns regarding the implementation of the proposed program

Responses to this RFI are due on April 3, 2020 by 5:00 pm CST.

CNP is under no obligation to select any proposal or move forward with any proposed program

Schedule Issue RFI March 1, 2020 RFI Response Due by 5:00 pm CST April 3, 2020 Issue RFP Q2 2020

Please return your response, or direct your questions, to:

Austin Pooley, Energy Efficiency Specialist1111 Louisiana St, Houston, TX 77002Austin.Pooley@centerpointenergy.com

(713) 207-5155

CENTERPOINT ENERGY SERVICE COMPANY, LLC.

AND________________

CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

CenterPoint Energy, Inc. (“CenterPoint Energy”) and ____________plan to exchange information on a confidential basis. The terms “Discloser” and “Recipient” refer respectively to the party disclosing or receiving a specific item of Confidential Information.

In connection with current and any future Request for (Information, Quote, Proposal ) (“RFx”), the evaluation of product and solution offerings, and in connection with the development or execution of a business proposal or any associated financing (“Purpose”), either party may find it beneficial to disclose to the other party confidential and proprietary information in written, oral, or other tangible or intangible forms, which may include pricing data, analyses, studies, reports, procedures, policies, business plans, business strategies, goals, objectives, processes, business models, marketing plans and strategies, ideas, proposals, drawings and specifications and other technical, financial or business information which is at any time provided by, or on behalf of, either party to the other, for use in connection with our discussions. (“Confidential Information"). For information not falling into the foregoing categories to be treated as Confidential Information, it shall be designated by the Discloser by marking, labeling or identifying it, in writing (or, for verbal exchanges, orally), with the word “confidential.”

Disclosure of Confidential Information is made with the understanding and in consideration of the following terms and restrictions:

1. Confidential Information is confidential and proprietary and shall be kept in confidence and not disclosed to any third party without the prior written approval of the Discloser, except as otherwise provided herein. Confidential Information shall be used only in connection with the review for which it was provided. This Agreement imposes no obligation with respect to information that: (a) was rightfully in the possession of the Recipient before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; or (c) is rightfully received from a third party without a duty of confidentiality.

2. In maintaining the confidentiality of Confidential Information, Recipient shall employ procedures at least as restrictive as procedures used with respect to Recipient’s own confidential and proprietary information.

3. Confidential Information shall not be disclosed by the Recipient except to current employees for the sole purpose of performing the review. Confidential Information shall not be reproduced, except for the sole purpose of performing the review.

4. Upon the verbal or written request of Discloser, Recipient agrees to return or destroy Confidential Information and all copies thereof.

5. In the event that Recipient is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information, Recipient shall provide Discloser with prompt written notice of any such request or requirement so that Discloser may, if it so elects, seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or receipt of a waiver under this Agreement, Recipient, is compelled to disclose Confidential Information to any tribunal or risk

being liable for contempt or suffer censure or penalty, Recipient may disclose that portion of such Confidential Information under this Agreement as is legally required to be disclosed, provided, however, Recipient agrees to exercise reasonable efforts to restrict disclosure of the Confidential Information and agrees to cooperate with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such tribunal.

6. It is understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement, and that Discloser shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement, but shall be in addition to all other remedies available at law or in equity.

7. It is further understood and agreed that no failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.

8. This Agreement and the obligations set forth herein shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. It shall be interpreted, construed and governed by the laws of the State of Texas.

9. This Agreement and your duty to protect the Information shall expire two (2) years from the date of receipt of the Information.

10. This Agreement supersedes all other oral or written understandings of the parties with respect to this subject matter.

11. This Agreement does not require either party to disclose any particular information, recommend product of the other, or enter into any business relationship, nor does it grant the Recipient a license to any of the Discloser’s patents or copyrights.

CenterPoint Energy Service Company LLCBy: Angela HicksSignature: Angela HicksTitle: Sourcing Specialist Date:

Vendor Name

By: Signature: Title: Date:

1 DEFINITIONS1.1.1 Acceptance means the earliest to occur of (1) Company’s final payment of the Contract Price to

Vendor or (2) issuance of notice of acceptance from the Contract Administrator to Vendor, in each case following satisfactory completion and acceptance of the Work in accordance with the requirements of the Contract; provided, however, that the Parties may mutually agree upon different or additional acceptance terms, which shall be set forth in a Statement of Work or other Contract document.

1.1.2 Affiliate with respect to any Person, means any other Person that directly or indirectly controls, is controlled by or is under common control with such Person, with control in such context meaning the ability to direct the management and policies of a Person through ownership of voting shares or other equity rights, pursuant to a written agreement or otherwise.

1.1.3 Business Day means Monday through Friday, 8:00 a.m. to 5:00 p.m. local time, excluding Company-recognized holidays.

1.1.4 Company means the CenterPoint Energy entity whose name appears on the Contract Cover Sheet.

1.1.5 Company’s Designated Point of Contact means the Person assigned by Company to manage Company’s day-to-day activities under the Contract. However, such Person shall have no authority to amend any term or condition of the Contract.

1.1.6 Contract means, collectively, the entire agreement between Company and Vendor, and includes the Contract Cover Sheet, these Terms and Conditions, any Statement of Work, any Contract Amendment, and any other documents which are by reference made a part of the Contract.

1.1.7 Contract Administrator means Company’s duly authorized agent who shall initiate and administer all activities related to Company’s rights and obligations under the Contract. Such Person is identified on the Contract Cover Sheet.

1.1.8 Contract Amendment means a written agreement which incorporates an addition, change or deletion to the Contract that is duly executed by authorized representatives of the Parties. As used herein, the term Contract Amendment shall also include any document entitled “Contract Supplement” or “Change Order” and any subsequent Contract Cover Sheet.

1.1.9 Contract Cover Sheet means the Contract document which sets forth the names of the Parties and their authorized agents, the Contract number, and any other mutually agreed-upon terms and conditions of the Contract, and acts as the signature page to the Contract.

1.1.10 Contract Price means the total amount payable to Vendor in consideration for the performance of the Work.

1.1.11 Drawings means, collectively, all drawings, maps, and supplementary drawings and maps incorporated into the Contract which illustrate the Work.

1.1.12 Law means all applicable laws, statutes, regulations, rules, treaties, ordinances, judgments, directives, permits, licenses, decrees, approvals, interpretations, injunctions, writs, orders or other similar legal requirements of any governmental authority having jurisdiction over the Parties.

1.1.13 Party means either Company or Vendor, individually, and Parties means Company and Vendor, together.

1.1.14 Person means any individual, firm, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization, governmental authority or any other entity.

1.1.15 Purchase Order means a document issued by Company to Vendor, indicating types, quantities, and agreed-upon prices for the Work provided to Company by Vendor.

1.1.16 Specifications means, collectively, any technical and functional requirements, descriptions, samples, models and documentation pertaining to the processes, workmanship, products, quantities and qualities of the Work to be furnished under the Contract.

1.1.17 Statement of Work means a formal document that sets forth a detailed description of the Work and which may include Vendor’s deliverables, a timeline for performance of the Work, and any Drawings, Specifications or other pertinent information. As used herein, the term Statement of Work shall also include any document entitled “Scope of Work”.

1.1.18 Subcontractor means any Person, other than Vendor, that performs any portion of the Work (including any subcontractor of any tier, any Affiliates of Vendor that perform any of the Work, and any supplier of equipment and materials) in furtherance of Vendor’s obligations under the Contract, whether by supplying labor, services, or equipment and materials or by performing some other activity.

1.1.19 Vendor means the Person with whom Company has entered into the Contract for the performance of the Work and whose name appears on the Contract Cover Sheet.

1.1.20 Vendor Personnel means Vendor’s employees, agents, representatives, Subcontractors, Subcontractors’ employees, agents or representatives, and anyone directly or indirectly employed by any of them performing Work under the Contract.

1.1.21 Vendor’s Designated Point of Contact means the Person or their designee who is assigned by Vendor to manage Vendor’s rights and obligations under the Contract, is responsible for Vendor’s day-to-day activities, and has authority to alter or amend any term, condition, or provision under the Contract. Vendor’s Designated Point of Contact shall also serve as Vendor’s liaison with Company for day-to-day management of Vendor’s activities under the Contract.

1.1.22 Work means, in whole or in part, the work, services, deliverables, duties and activities to be performed by Vendor under the Contract.

2 PRIORITY, EXHIBITS AND HEADINGS2.1 Contract Documents — Order of Priority2.1.1 The documents composing the Contract are intended to be complementary. What is set forth in

any one document is binding as if set forth in each document, and it is intended that the terms of such documents be read together giving effect to all. If there is a conflict between any documents constituting a part of the Contract, that conflict will be resolved in accordance with the following order of precedence, with items higher in the list prevailing over items lower in the list:

Contract Cover Sheet

Contract Amendment

Terms and Conditions

Statement of Work

Compensation Schedule

Notwithstanding the foregoing, if the irreconcilable provisions pertain to the scope of the Work, applicable Specifications or matters of a technical nature to be provided by Vendor in connection with the performance of the Work, then the provisions of the Statement of Work shall govern, and if the irreconcilable provisions pertain to the rights, duties or obligations of the Parties, then the Terms and Conditions shall govern.

2.2 Exhibits and Headings2.2.1 The section headings and the table of contents used herein are for reference and convenience

only, and shall not affect the Contract’s construction or interpretation. Any exhibits referred to herein and attached (or to be attached) hereto are incorporated herein by reference to the same extent as if set forth in full herein. The words “herein,” “hereof,” “hereunder” and other words of similar import refer to the Contract as a whole and not to any particular section or other subdivision.

3 COMPLIANCE WITH LAW, CODES AND POLICIES3.1 Compliance with Law/Change in Law3.1.1 Vendor shall, and shall cause each Vendor Personnel to, comply in all respects with all Law.

3.1.2 Vendor shall, and shall cause each Subcontractor to, comply in all respects with all labor, employment and immigration Law and guidelines, including the Immigration and Control Act of 1986 and Form I-9 Employment Eligibility Verification requirements. Without limiting the

generality of the previous sentence, Vendor shall, and shall cause each Subcontractor to, perform all required employment eligibility and verification checks and maintain all required employment records for any employees that will be performing the Work. Vendor shall, and shall cause each Subcontractor to, conduct adequate screening of its employees and agents prior to assigning any of those Persons to perform any of the Work. Vendor represents and warrants that (1) it maintains the required employment eligibility documentation which complies with the immigration Law referred to above, and (2) Vendor’s employees are authorized to work in the United States in accordance with all such Law.

3.1.3 In addition, Vendor shall identify the impact of any changes in Law on its ability to deliver the Work. Vendor shall promptly notify Company of such changes and shall work with Company to identify how such changes affect Company’s use of the Work. Company and Vendor shall promptly make any resulting modifications to the Work as reasonably necessary because of such changes in applicable Law.

3.1.4 If such modifications relate to Law directed at Vendor’s business or are necessary due to changes made by Vendor, Vendor shall make such modifications at its own expense. If such modifications relate to Law not directed at Company’s business or are not necessarily due to changes made by Vendor, Vendor shall prorate the expense of such modifications to be shared among all of its similarly situated customers and Company shall pay its fairly allocated share of such expenses, except to the extent the modification is otherwise included as part of the Work.

3.2 PUCT Code of Conduct3.2.1 Vendors performing Work for Company in the State of Texas, as well as vendors performing

work for CenterPoint Energy Houston Electric, LLC (regardless of location), shall comply with CenterPoint Energy Houston Electric, LLC’s Internal Code of Conduct, required by the Public Utility Commission of Texas (“PUCT”). Training materials associated with the Internal Code of Conduct for use in training Vendor Personnel are at www.centerpointenergy.com/supplier (click “PUCT Code of Conduct Training” under the “Contractor Training” heading). Vendor shall be responsible for ensuring that all current and new Vendor Personnel working with Company have received training on the Internal Code of Conduct and that such training is recorded and maintained. Vendor shall complete and maintain the Code of Conduct Certificate of Completion form (located at the above-referenced hyperlink) with the names and dates of Vendor Personnel who have taken the training. Upon Company’s request, Vendor shall certify, by presenting employee acknowledgement documentation, that all Vendor Personnel have completed the Internal Code of Conduct training.

3.3 Ethics and Compliance3.3.1 Vendor shall, and shall cause each Vendor Personnel to, comply in all respects with Company’s

Ethics and Compliance Code for Consultants, Contractors, Suppliers and Vendors, available at www.centerpointenergy.com/supplier (click “Ethics and Compliance Code” under the “Forms and Information” heading).

3.4 Equal Employment Opportunity Compliance3.4.1 Vendor represents and warrants that it is in compliance with all applicable laws, regulations and

orders with respect to equal employment opportunity and, upon Company’s request, shall provide to Company any certifications and representations regarding equal employment opportunity that Company may require under such laws, regulations and orders.

3.4.2 Vendor and Subcontractors shall comply with the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a), and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.

3.4.3 Vendor will not discharge or in any other manner discriminate against employees or applicants because they have inquired about, discussed, or disclosed their own pay or the pay of another employee or applicant. However, employees who have access to the compensation information of other employees or applicants as part of their essential job functions cannot disclose the pay of other employees or applicants to individuals who do not otherwise have access to compensation information, unless the disclosure is (1) in response to a formal complaint or charge, (2) in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or (3) consistent with Vendor’s legal duty to furnish information.

3.5 FTC Identity Theft3.5.1 In connection with Vendor’s performance of the Work, Vendor may access, use, or manage

sensitive information of Company. Company is a covered entity subject to 16 CFR Part 681.1 (the “FTC Identity Theft Rule”). Vendor acknowledges that the services rendered to Company under this contract may require performance of an activity in connection with covered accounts subject to the FTC Identity Theft Rule. Vendor agrees to establish and maintain reasonable policies and procedures designed to detect, prevent, and mitigate the risk of theft of customer identifiable information relating to those accounts. Such a program shall include policies and procedures to (1) detect relevant suspicious patterns or practices, or specific activities that indicate the possibility of identity theft that may arise in the performance of Vendor’s activities under this contract (a “Red Flag Incident”) and (2) take appropriate steps to prevent and/or mitigate any identity theft resulting from the Red Flag Incident. Vendor shall train employees on the program and maintain documentation of the training as to each employee, update the program periodically to reflect changes in the risk of identity theft to customers, and report to Company any material changes to the program. Company shall have the right to audit Vendor’s compliance with this provision pursuant to the Company’s audit rights herein.

3.5.2 REPORTING: Vendor shall immediately notify Company of any Red Flag Incident and within

three (3) Business Days of the occurrence, provide a report detailing the results of the investigation and corrective actions taken by Vendor. Vendor shall submit notifications and reports to ccs-redflag-level2-4@centerpointenergy.com with copies to Company’s Designated Point of Contact and Contract Administrator.

3.6 Contract Compliance Monitoring3.6.1 In the event Company utilizes a third party to provide Contract compliance monitoring services,

Company shall notify Vendor in writing of the identity of the third party and Vendor shall take whatever steps are necessary to actively participate in such compliance monitoring. Such steps may include registering with the third party, subscribing to the third party’s services, providing information and documents to the third party, uploading information and documents to the third party’s website or portal, or similar compliance-related activities. Contract compliance monitoring may require Vendor to submit records regarding operator qualification, drug and alcohol monitoring, accidents, injuries, training, background checks, insurance, workers’ compensation, OSHA, etc.

4 VENDOR4.1 Independent Contractor4.1.1 Vendor and all Vendor Personnel are acting as independent contractors unrelated to Company

or any of its Affiliates. Nothing in the Contract creates a relationship, express or implied, of employer-employee, joint employment, joint venture, or principal-agent between Company and Vendor or any Vendor Personnel.

4.1.2 Vendor affirms that Vendor Personnel assigned to perform the Work are classified as its W-2 employees, not contractors.

4.1.3 Vendor Personnel assigned to perform the Work shall not be employees of Company and Company will not have any direct or indirect control over the hiring, termination, pay, or other conditions of employment of Vendor Personnel. Vendor shall ensure that the terms of employment with Vendor Personnel clearly state that that Vendor Personnel are not employees of Company.

4.1.4 Company retains no control or direction over Vendor and Vendor Personnel regarding the detail, manner or methods of the performance of the Work by Vendor or Vendor Personnel.

4.1.5 No Vendor Personnel will be entitled to participate in any plans, arrangements, or distributions by Company relating to any pension, deferred compensation, bonus, stock bonus, hospitalization, insurance, or other benefits extended to Company’s employees. Company shall not be required to make employee contributions provided for in Social Security or other Law on behalf of Vendor, Vendor Personnel, or their respective employees, agents, or consultants. Company shall not be responsible for withholding federal, state, or local income, Social Security, or other taxes from the amounts paid to Vendor.

4.1.6 Vendor shall be fully responsible for all acts and omissions of Vendor Personnel and shall be specifically responsible for sufficient and competent supervision and inspection to ensure Vendor Personnel’s compliance in every respect with the Contract requirements.

4.2 Subcontractor4.2.1 Vendor shall not subcontract any of the Work without Company’s prior consent. Without

limiting the foregoing, Company may require submission of any such subcontract agreement for Company’s approval prior to award.

4.2.2 No subcontract shall bind or purport to bind Company. Vendor shall ensure that all Work performed by Subcontractors is pursuant to a written subcontract agreement that (1) preserves and protects the rights of Company under the Contract and to the Work to be performed under the subcontract agreement; (2) requires that the Work be performed in accordance with the applicable requirements of the Contract; and (3) requires the Subcontractor to make reasonably available a representative with whom Company may discuss questions regarding the Work being performed by that Subcontractor. Vendor shall promptly provide all information requested by Company relating to the identity of the Subcontractors and the scope of their services or goods.

4.3 Character and Skill of Personnel4.3.1 Vendor shall employ a sufficient number of qualified Persons so that Vendor may complete

performance of the Work and Vendor’s obligations under the Contract in an efficient, prompt, economical and professional manner. Vendor represents and warrants that all Vendor Personnel who will perform any portion of the Work have received all necessary training and possess all licenses and certifications required by Law to perform the Work.

4.3.2 Vendor shall supervise, coordinate and direct the performance of the Work in accordance with industry standards. Vendor shall at all times enforce strict discipline and good order among all Vendor Personnel engaged in the performance of the Work and shall not employ in the Work any Person not skilled or qualified for the task(s) assigned to them.

4.3.3 Vendor Personnel shall comply with all Company rules, regulations, policies and procedures provided in writing by Company to Vendor regarding any matter.

4.3.4 Vendor shall not permit possession or use by Vendor Personnel of any intoxicant, including alcohol, unlawful drugs, and prescription drugs not prescribed by an accredited physician for current personal treatment of the user, or any other unauthorized substance during the performance of the Work. Vendor shall, and if Vendor does not, then Company may, remove from performing the Work and prevent from performing any of the Work any Vendor Personnel under the influence, or in possession, of any such unauthorized substances. Upon Company’s request, and to the extent permitted by Law, Vendor shall provide Company with copies of the records of employee drug and alcohol test results required to be kept by Law.

4.3.5 Upon Company’s request, any Vendor Personnel shall promptly be removed from performing the Work, and such Vendor Personnel shall not be reemployed in the performance of the Work

at any time without the prior written consent of Company. If Vendor learns of any misconduct, incompetence or negligence of any Vendor Personnel, Vendor shall promptly remove such Persons from performing the Work, shall not allow those Persons to perform any additional Work, and shall promptly notify Company of that misconduct, incompetence or negligence and the actions taken by Vendor as a result thereof. Vendor will not be entitled to any additional compensation for or time to complete the Work for any matter arising out of or relating to the training, replacement or removal of any removed or barred Vendor Personnel.

4.4 Vendor Representations and Warranties4.4.1 Vendor shall have the sole responsibility for, and hereby represents and warrants that it has, by

careful examination, satisfied itself concerning the nature of Work. Failure of Vendor to acquaint itself with any applicable condition will not relieve it from the responsibility for properly estimating either the difficulties or costs of successfully performing the Work.

4.4.2 Vendor further represents and warrants that Vendor’s progress schedule, if applicable, and compensation are based on its own knowledge and judgment of the conditions and hazards involved, and not upon any representation from Company. Company assumes no responsibility for any understanding or representation made or alleged to have been made by any of its representatives, unless such understanding or representation is expressly stated in the Contract.

4.4.3 Vendor shall carefully study and review the Contract prior to commencing any portion of the Work, shall carefully review applicable Drawings and Specifications, and shall promptly notify Company by written notice of any conflict with Law or of any errors, inconsistencies or omissions it may discover.

4.4.4 Vendor represents and warrants that it has the full power and authority to execute, deliver and perform its obligations under the Contract and to engage in the business it presently conducts and contemplates conducting, and is and will be (1) duly licensed or qualified to do business and (2) in good standing under the Law of the jurisdiction wherein the Work is to be performed.

5 ASSIGNMENT5.1.1 Vendor shall not assign any part of its rights or delegate any performance under the Contract,

voluntarily or involuntarily, whether by merger, consolidation, dissolution, operation of law, or any other manner, without Company’s prior written consent. Company may withhold consent for any or no reason in its sole and absolute discretion. For purposes of the Contract, (1) a “change in control” is deemed an assignment; (2) “control” means the power, directly or indirectly, to (a) vote at least fifty percent (50%) of the securities that have ordinary voting power for the election of Vendor’s directors or managers, or (b) direct or cause the direction of the management and policies of Vendor whether by voting power, contract or otherwise; and (3) “merger” refers to any merger in which Vendor participates, regardless of whether it is the surviving or disappearing entity.

5.1.2 No permitted assignment of the Contract or of any duties hereunder shall relieve Vendor of any of its obligations hereunder.

5.1.3 If Company permits Vendor’s assignment of the Contract, the Contract shall be binding upon and shall inure to the benefit of the permitted assignee; however, Vendor shall provide prompt written notice of such changes or transfers.

5.1.4 Any purported assignment of rights or delegation of performance in violation of this section (Assignment) is void and of no effect.

5.1.5 Company is entitled to assign its rights or delegate performance under the Contract, in whole or in part.

6 WORK6.1 General6.1.1 Vendor shall, in consideration of the Contract Price payable in accordance with the Contract,

provide or perform the Work, or cause the Work to be provided or performed, in accordance with the terms and conditions of the Contract.

6.2 Authorization to Commence Work6.2.1 Vendor shall not commence the Work until Company has received a fully executed Contract

Cover Sheet. Any Work performed before such time is at Vendor’s sole risk and expense.

6.3 Performance Schedule6.3.1 Vendor shall perform the Work to meet the schedule agreed upon by the Parties. The schedule

shall be computed by excluding the first calendar day and including the last calendar day of said time frame. If the last calendar day of said time frame is a Sunday or Company-recognized holiday, the time frame shall end on the next Business Day.

6.3.2 Vendor shall be responsible for any damages that Company may incur due to delay in the completion of the Work, or delay in the completion of any other obligation of Vendor set forth herein, unless excused under the Force Majeure section.

6.4 Scheduling and Reports6.4.1 Prior to performing the Work, Vendor shall prepare and provide to Company, for Company’s

approval, a written schedule for performance of the Work. All changes and revisions to the written schedule shall be made in accordance with, and subject to, the provisions of the Changes in the Work section.

6.4.2 Upon Company’s request, Vendor shall prepare, maintain and provide to Company, at a frequency determined by Company, additional schedules or reports which Company deems necessary to apprise Company of the progress of the Work.

6.4.3 Upon Company’s request, Vendor shall submit periodic management summary reports

highlighting major accomplishments of the previous period. Such reports, if requested, shall be submitted to Company’s Designated Point of Contact monthly, unless otherwise requested by Company, and shall include Vendor’s accomplishments to date, costs expended to date and estimated time and cost to completion. Reports shall be submitted to Company by the tenth (10th) calendar day of each succeeding period, unless otherwise requested by Company.

6.5 Contract Interpretation6.5.1 All questions concerning interpretation or clarification of a conflict, discrepancy, error or

omission among the various documents composing the Contract, or the acceptable performance of the Contract on the part of Vendor shall be immediately submitted in writing by Vendor to Company for determination.

6.5.2 Company shall issue directly with reasonable promptness such written clarifications or interpretations (in the form of Drawings or otherwise) as may be determined necessary by Company for the proper performance of the Work, such clarifications and interpretations to be consistent with or reasonably inferable from the overall intent of the Contract. If Vendor believes that a written clarification and interpretation changes the Statement of Work and entitles Vendor to an adjustment in the Contract Price, Vendor may make a claim in accordance with the provisions of the Changes in the Work section.

6.5.3 If Vendor performs any Work affected by a conflict, discrepancy, error or omission among the various documents composing the Contract prior to Company’s issuance of a clarification or interpretation, such Work will be at Vendor’s risk.

6.6 Changes in the Work6.6.1 Company may, at any time, by written notice to Vendor, submit a change to the Work, and the

Parties shall execute a Contract Amendment reflecting such change.

6.6.2 If Company and Vendor both desire to make a change to the Work, Company and Vendor shall enter into a Contract Amendment reflecting such change.

6.6.3 If Vendor interprets any written order (which term as used herein shall include direction, instruction, interpretation or determination) from or conduct by Company to be a change in the Work which has not been authorized as such by Company, Vendor shall notify Company in writing, stating the date, circumstances and source of the written order or conduct, and that Vendor regards the written order or conduct as a change in the Work. Company shall make a determination as to whether such written order or conduct was intended to be a change in the Work, and if so, the Parties shall execute a Contract Amendment reflecting such change.

6.6.4 All Contract Amendments relating to a change in the Work must include a specific description of (1) the changes, (2) the adjustment to the Contract Price (if any) associated with the change, and (3) any additional responsibilities or resource commitments of Company or Vendor due to a change in the Work. If any change in the Work causes an increase or decrease in Vendor’s cost of, or the time required for, the performance of the Work or any part thereof, the Parties shall

make an equitable adjustment to the Contract Price and in the case of defective Specifications for which Company is responsible, the equitable adjustment shall include any increased cost reasonably and necessarily incurred by Vendor in attempting to comply with such defective Specifications. Notwithstanding the foregoing, Vendor shall not be entitled to an equitable adjustment to the Contract Price for any costs incurred based upon a written order from or conduct by Company that Vendor interprets to be a change in the Work and that are incurred more than ten (10) calendar days before Vendor delivers written notice to Company in accordance with the provisions above.

6.6.5 In connection with any proposed change in the Work and prior to the execution of any Contract Amendment implementing such change, Vendor shall furnish to Company a written cost proposal, itemized as required by Company, containing sufficient detail to permit Company’s analysis of all material, labor, equipment and subcontract costs for proposed changes in the Work and for any costs incurred in attempting to comply with defective Specifications. Any amount claimed for subcontracts shall include a similar cost breakdown. In addition, if the written cost proposal includes a request for a time extension for performance of the Work, Vendor shall also provide an explanation for such request.

6.6.6 Vendor shall maintain separate cost records for each authorized change in the Work and for any Work which Vendor intends to submit to Company as a change in the Work. All such cost records shall be subject to inspection, audit and/or reproduction by Company or its authorized representative for review and use.

6.6.7 Any Work changed pursuant to this section (Changes in the Work) will be warranted under the provisions of the Warranty section as if such Work were a part of the original Contract.

6.7 Work Not in Contract6.7.1 Company may, at its discretion, engage another vendor to provide labor and materials not

included in the Contract that are essential to the performance of the Work. Vendor shall cooperate with and provide assistance to Company and its other vendors in coordinating the Work.

6.7.2 Vendor shall work in accord with Company’s other vendors, and any disputes between Vendor and Company’s other vendors shall be resolved by Company. Notwithstanding the existence of any difference of opinion between Vendor and Company’s other vendors, or between Vendor and Company, Vendor shall proceed with the Work as directed by Company.

6.7.3 Vendor hereby acknowledges that it is required to coordinate with Company’s other vendors and that scheduling problems may arise which require occasional re-sequencing of the Work or may cause minor delays and intermittent operations. Vendor has accounted for such potential delays in the Contract Price and in its scheduling of the Work and agrees that such minor delays shall not be considered changes in the Work or causes for delay claims.

6.8 Use of Materials and Ownership of Work Product

6.8.1 Any materials owned by or in the possession of Company, written, printed or otherwise recorded, shall be used by Vendor only in the performance of the Work and Vendor shall not photograph, record, reference, reproduce or use such materials for any other purpose without the express written consent of Company. All rights, title to, and interest in such materials shall remain with Company and all such material shall be surrendered to Company immediately upon termination of this Contract or at any time prior thereto upon the request of Company.

6.8.2 Upon completion or termination of Work, Vendor shall deliver all documentation concerning the Work to Company. Company’s data shall not be used by Vendor for other activities without written permission from Company.

6.8.3 Any drawings, specifications, reports, test results and specimens, data and other work product (“Work Product”) of Vendor provided pursuant to the Contract shall be the exclusive property of Company and may be used as Company deems appropriate. All Work Product shall be a “work made for hire” exclusively for Company under the copyright Law of the United States. If any Work Product is not deemed to be a work made for hire, Vendor hereby assigns its right, title, and interest in same to Company, and Vendor shall execute, and shall require and ensure that Vendor Personnel execute, any and all documents necessary to assign such right, title and interest in the Work Product to Company. Vendor further grants to Company a perpetual, royalty-free, non-exclusive, non-sub licensable license for the to all works not conceived or first produced by Vendor which are incorporated in or essential to the use of any Work furnished hereunder. Vendor warrants and represents that it has or will have the right, through written agreements with Vendor Personnel performing Work under or in connection with the Contract, to secure for Company the rights called for herein.

6.8.4 Company acknowledges that the Work may require certain intellectual property and materials that Vendor or others previously or independently developed, and that Company will not acquire any interest whatsoever in such intellectual property, except as may be otherwise specifically set forth in the Contract.

6.8.5 Unless precluded by obligations of confidentiality with respect to Company Confidential Information, Vendor may develop for itself, or for others, anything, whether in tangible or non-tangible form, which is similar to, the Work, and Vendor shall be free to use its general knowledge, skills and experience, and any ideas, concepts, know-how, and techniques that are acquired or used in the course of performing the Work.

7 WARRANTY7.1 Warranty of Work7.1.1 Vendor represents and warrants that (1) the Work will be performed in accordance with the

Contract; (2) Vendor shall use sound and professional principles and practices in accordance with consistently accepted industry standards in the performance of the Work hereunder; (3) performance of the Work by Vendor Personnel shall reflect sound professional knowledge, skill and judgment; and (4) Vendor shall, and shall cause Vendor Personnel to, perform the Work in

accordance with Law, including required licenses and permits.

7.1.2 Vendor represents and warrants that the Work covered by the Contract will (1) be suitable for the purpose intended and for any purposes for which its suitability is represented in writing by Vendor; (2) be free from defects in design, workmanship and materials; (3) conform to the Drawings and Specifications supplied to Vendor, if any; and (4) if installed by Vendor, be properly installed and activated. Vendor shall correct any defects in the Work, and all repairs, replacements, modifications or adjustments required under this warranty shall be at Vendor’s expense, including transportation, shipping and incidental expenses.

7.1.3 Remedies for breach of the warranties in this section (Warranty of Work) may include, at Company’s sole discretion and in addition to all other remedies available to Company at law or in equity, the repair or replacement of, or the reimbursement of the purchase price for, the applicable Work.

7.2 Correction of Work7.2.1 If any failure to meet the foregoing warranties occurs or is discovered during the performance of

the Work or within twelve (12) months after Acceptance of the Work by Company, upon notice from Company of nonconformity, Vendor shall again perform, replace, or repair the Work directly affected by such failure at Vendor's sole expense and shall reimburse Company for all costs incurred by Company as a result of the Work failing to meet such warranties. Work so re-performed, replaced, or repaired shall be warranted for an additional period extending to completion of the original warranty or twelve (12) months following completion or re-performance, whichever period shall expire last.

7.2.2 If Vendor fails or refuses to repair, replace or otherwise cure nonconforming material, equipment or Work, or fails to initiate correction of the Work within a period of ten (10) calendar days and to complete correction of the Work within a reasonable period not to exceed thirty (30) calendar days (or such longer period or periods as Company may authorize in writing) after receipt of notice from Company specifying the need for repair, replacement or other cure, Company (or a third Person) may repair, replace or otherwise cure said material, equipment or other Work and charge to Vendor the cost occasioned to Company thereby.

7.2.3 If Company prefers to accept Work which is not in accordance with the requirements of the Contract, Company may do so instead of requiring its removal and correction, in which case the Contract Price will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made.

7.2.4 The rights and obligations under this section (Correction of Work) shall survive Acceptance of the Work and termination of the Contract.

8 INSURANCE8.1 Insurance and Indemnification

8.1.1 Prior to beginning Work, Vendor will obtain, maintain, and pay for such insurance as may be required by the Contract and to effect the provisions of the Indemnification section herein. The coverage of such policies is set forth below.

8.2 Insurance Certificates8.2.1 Upon request by Company, Vendor shall furnish certificates of insurance to Company evidencing

that the insurance required below is in force and effect. Upon request by Company, Vendor shall provide new, replacement certificates, evidencing the procurement of successor policies to the expiration of each required policy for so long as this Contract is in effect.

8.2.2 Vendor warrants the accuracy of all information shown on each certificate furnished to Company by Vendor or on Vendor’s behalf by Vendor’s broker or other representative.

8.3 Required Insurance and Limits of Liability8.3.1 Before beginning the Work and throughout the term of this Contract, Vendor shall obtain and

maintain in force and effect, at Vendor’s sole expense, insurance of the following types and amounts from insurance companies authorized to engage in the business of insurance in the state(s) in which Work will be performed, and rated by a Best’s A – VII or better:

8.3.1.1 WORKERS’ COMPENSATION INSURANCE

8.3.1.1.1 Vendor shall carry Worker’s Compensation Insurance affording statutory benefits in accordance with all requirements of the applicable worker’s compensation laws in the state(s) in which the Work will be performed and covering Vendor’s employees.

8.3.1.1.2 If Vendor’s performance of the Work involves work on navigable waters, Vendor shall also obtain and maintain in force insurance complying with the U.S. Longshoreman’s and Harbor Worker’s Act, the Outer Continental Shelf Act, and covering Jones Act liability.

8.3.1.2 EMPLOYER’S LIABILITY INSURANCE

8.3.1.2.1 Vendor shall carry Employer’s Liability Insurance with limits of not less than $1,000,000 per accident or disease.

8.3.1.3 COMMERCIAL GENERAL LIABILITY INSURANCE

8.3.1.3.1 Vendor shall carry Commercial General Liability Insurance, including coverage for bodily injury and property damage, personal and advertising injury, the products-completed operations hazard, and insured contracts, applicable in all states in which the Work is to be performed, on a form no less broad that that promulgated by the Insurance Services Office dated 2004 or thereafter, and with limits of not less than:

Each Occurrence $1,000,000

General Aggregate $2,000,000

Products-Completed Operations Aggregate $2,000,000

Personal and Advertising Injury $1,000,000

8.3.1.4 BUSINESS AUTOMOBILE LIABILITY INSURANCE

8.3.1.4.1 Vendor shall carry Business Automobile Liability Insurance on a form no less broad than that promulgated by the Insurance Services Office dated 1985 or thereafter, will limits of not less than $1,000,000 combined single limit for each accident and covering owned, hired or leased, and non-owned autos.

8.3.1.5 EXCESS OR UMBRELLA LIABILITY INSURANCE

8.3.1.5.1 Vendor shall carry Excess or Umbrella Liability Insurance applying excess of Employer’s Liability Insurance, Commercial General Liability Insurance, and Business Automobile Liability Insurance with limits of not less than $5,000,000 per occurrence and in the aggregate.

8.3.1.6 CYBER LIABILITY INSURANCE

8.3.1.6.1 Vendor shall carry Cyber Liability Insurance with limits not less than $10,000,000 for each claim and in the aggregate. This insurance shall extend to damages and claim expenses and include the following insuring clauses: Security and Privacy Liability, Regulatory Defense and Penalties, Media Liability, Notification and Event Management Expenses, Network Interruption and Data Recovery Expenses, and Cyber Extortion Expenses. The policy shall cover damages, expenses, and costs that the Vendor becomes legally obligated to pay arising out of any error, misstatement, misleading statement, act, omission, negligent act, neglect, breach of duty actually or allegedly committed by Vendor, its employees, or its subcontractors in their capacity as such, resulting in, (1) the unauthorized access or use of a computer network, systems, data, or software; (2) the participation by Vendor’s computer system in a denial of service attack directed against CenterPoint Energy, Inc.; (3) the transmission of malicious code from Vendor’s computer system to a computer system of CenterPoint Energy, Inc.; (4) the failure of Vendor, its employees or subcontractors to properly handle, manage, store, transmit, process, destroy or otherwise control private information of CenterPoint Energy, Inc. in any format specifically identified as sensitive, confidential and/or protected; and (5) a violation of Law concerning privacy or security liability.

8.3.1.7 PROFESSIONAL LIABILITY INSURANCE

8.3.1.7.1 Vendor shall carry Professional Liability Insurance covering tortious errors and omissions in the performance of the Work, and not excluding damage to Company, with limits of not less than $1,000,000 per claim and in the aggregate.

8.3.2 The forgoing required insurance is the minimum insurance required by this Contract. Vendor may, in its sole discretion, procure additional insurance or higher limits of liability at Vendor’s

sole expense.

8.4 CenterPoint Energy, Inc. To Be Named An Additional Insured8.4.1 To the extent allowed by law, the Commercial General Liability Insurance, Business Automobile

Liability Insurance, Excess or Umbrella Insurance, and Aircraft Liability and Hull Insurance, as required above, shall be endorsed to provide that CenterPoint Energy, Inc., together with its owned or controlled subsidiaries and affiliates, and their respective directors, officers and employees (collectively, “the Additional Insureds”), are added as additional insureds for liability arising out of the Work, with coverage not limited to liability caused by Vendor or Vendor’s fault, and providing coverage for the Additional Insureds’ fault or vicarious liability no less broad than one or the other of the following alternatives: (1) the coverage afforded to the named insured under the policy for liability arising out of the Work; or (2) the coverage afforded by the inclusion of both Insurance Services Office Additional Insured Endorsements CG 20 33 07 04 and CG 20 37 07 04.

8.4.2 The insurance policies required by Commercial General Liability Insurance and Business Automobile Liability Insurance, above, shall provide that the Additional Insureds are covered on a primary basis. Also, the insurance policies required by Commercial General Liability Insurance, Business Automobile Liability Insurance, Excess or Umbrella Liability Insurance, and Aircraft Liability and Hull Insurance, above, shall also be endorsed to provide that coverage for the Additional Insureds does not apply excess of other insurance coverage available to the Additional Insureds, and that Vendor’s insurers will not seek contribution or recovery from such other insurance as may be available to the Additional Insureds.

8.5 Insurance Required of Vendor’s Subcontractors8.5.1 Vendor shall require all subcontractors who will perform any of the Work to obtain the same

insurance and limits of liability as required by Workers’ Compensation Insurance, Employer’s Liability Insurance, Commercial General Liability Insurance, Business Automobile Liability Insurance, and Excess or Umbrella Liability Insurance above. Vendor shall also require all such subcontractors to cause their insurers to waive subrogation to the same extent as required of Vendor’s insurers by the following provision, Waiver of Subrogation in Favor of CenterPoint Energy, Inc.

8.6 Waiver of Subrogation in Favor of CenterPoint Energy, Inc.8.6.1 The Parties intend that none of Vendor’s insurers shall subrogate against CenterPoint Energy,

Inc., or any of its owned or controlled subsidiaries or affiliates, or their respective directors, officers or employees. Accordingly, Vendor agrees to cause its insurers-not limited to insurers underwriting the policies required above-to waive subrogation against CenterPoint Energy, Inc. and all such subsidiary or affiliated entities and persons. For the avoidance of doubt, Vendor also agrees that it presently waives and releases all rights of recovery, claims or causes of action that might hereafter arise in favor of Vendor for any loss, damage or liability that is covered by Vendor’s insurance, regardless of whether the loss, damage or liability is caused by

the negligence, breach of any legal duty, or other fault of CenterPoint Energy, Inc., or any of such entities or persons. The foregoing release is effective even if Vendor fails to obtain the required insurance.

8.7 Notice of Cancellation, Modification or Impairment of Limits8.7.1 The policies required above shall be endorsed to provide that they will not be canceled, or the

coverage thereunder materially changed, without at least seven (7) days prior written notice to Company.

8.8 Notice of Impairment of Limits8.8.1 Vendor shall give written notice to Company no later than seven (7) days after the date on which

an impairment of an aggregate limit, due to the payment of a claim or defense expense, reduces the available aggregate limit to an amount 50% or less than the aggregate limit required above. If Vendor’s excess insurance will not drop down and comply with the insurance requirements, Company may require reinstatement of an impaired aggregate limit up to the amount required.

8.9 Information Concerning Vendor’s Insurance Program8.9.1 If Company has questions concerning Vendor’s casualty insurance program, Vendor agrees to

promptly answer them. Complete, true and correct copies of each policy required above shall be furnished to Company promptly upon Company’s request, but Vendor may redact payroll and premium information. Vendor agrees to cooperate with Company, and with Company’s insurance broker, in the event Company elects to seek or obtain additional insurance benefiting Company.

8.10 Vendor’s Compliance with Policy Conditions8.10.1 Vendor shall comply with and not violate or knowingly permit to be violated any condition of

the insurance policies required above. Vendor agrees to give its insurers timely written notice of all occurrences, accidents or claims arising out of the Work, with copy to Company.

8.11 Vendor’s Payment of Premiums, Deductibles and SIRs8.11.1 Vendor, not Company, shall be responsible for any and all policy premiums, deductibles, or self-

insured retentions payable in connection with Vendor’s insurance, including the insurance required above.

8.12 Non-Waiver – No Limitation of Company’s Rights8.12.1 Vendor unilaterally agrees to comply with the provisions of this Section. Accordingly,

Company’s knowledge concerning deficiencies in Vendor’s insurance, including non-compliance with this Section shown by any insurance certificate or other information furnished to Company, shall not affect Company’s rights and shall not result in a waiver or otherwise limit or impair Company’s remedies for Vendor’s failure to comply with the requirements of this Section.

8.12.2 Nothing contained in this Section shall restrict, limit, impair or waive Company’s rights or Vendor’s duties under the other terms of this Contract or under applicable law. The cancellation, expiration, or exhaustion of any of the insurance required shall not preclude Company from recovery against Vendor for any liability arising under this Contract or Law.

8.13 Term of Insurance Requirement8.13.1 All of the foregoing insurance requirements shall survive the termination of this Contract. All

required insurance shall continue for at least thirty (30) days after final completion of the Work, to include the performance of all warranty work.

8.13.2 In addition, Vendor shall maintain in force and effect any required claims-made coverage for a minimum of two (2) years after final completion of the Work and shall purchase an extended reporting period, or “tail coverage”, if necessary to comply with this requirement.

9 INDEMNITY9.1 Indemnification9.1.1 TO THE FULLEST EXTENT PERMITTED BY LAW, VENDOR SHALL DEFEND, INDEMNIFY, AND

HOLD HARMLESS COMPANY, ITS AFFILIATES AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (THE “COMPANY-INDEMNIFIED PARTIES”) FROM AND AGAINST ANY AND ALL DAMAGES (“DAMAGES” MEANS THE AMOUNT OF ANY ACTUAL LIABILITY, LOSS, COST, EXPENSE, CLAIM, AWARD OR JUDGMENT INCURRED OR SUFFERED BY AN INDEMNIFIED PERSON ARISING OUT OF OR RESULTING FROM THE INDEMNIFIED MATTER, WHETHER ATTRIBUTABLE TO PERSONAL INJURY OR DEATH, PROPERTY DAMAGE, CONTRACT CLAIMS (INCLUDING CONTRACTUAL INDEMNITY CLAIMS), TORTS, OR OTHERWISE, INCLUDING COSTS OF ENFORCEMENT OF THE INDEMNITY AND (1) REASONABLE FEES AND EXPENSES OF ATTORNEYS, CONSULTANTS, ACCOUNTANTS OR OTHER AGENTS AND EXPERTS REASONABLY INCIDENT TO MATTERS INDEMNIFIED AGAINST, AND (2) THE COSTS OF INVESTIGATION AND/OR MONITORING OF SUCH MATTERS) INCURRED OR SUFFERED BY THE COMPANY-INDEMNIFIED PARTIES WITH RESPECT TO BODILY INJURY OR DEATH OF ANY PERSON, OR LOSS OF, DAMAGE TO OR DESTRUCTION OF REAL OR PERSONAL PROPERTY IN ANY WAY OCCURRING, INCIDENT TO, ARISING OUT OF OR IN CONNECTION WITH THE WORK PERFORMED OR TO BE PERFORMED BY VENDOR HEREUNDER OR OCCURRING, INCIDENT TO, ARISING OUT OF OR IN CONNECTION WITH THE PRESENCE OF VENDOR AND VENDOR PERSONNEL ON THE JOBSITE, IN EACH CASE TO THE EXTENT SUCH BODILY INJURY, DEATH OR DAMAGE IS CAUSED BY THE SOLE, JOINT, CONCURRENT, CONTRIBUTING, OR COMPARATIVE NEGLIGENCE OR OTHER LEGAL FAULT OF VENDOR OR VENDOR PERSONNEL.

9.1.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE CONTRACT, TO THE FULLEST EXTENT PERMITTED BY LAW, VENDOR SHALL ASSUME FULL RESPONSIBILITY FOR AND SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE COMPANY-INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL DAMAGES INCURRED OR SUFFERED BY THE COMPANY-INDEMNIFIED PARTIES WITH RESPECT TO THE BODILY INJURY OR DEATH OF AN EMPLOYEE OF VENDOR, ITS

AGENT, OR SUBCONTRACTOR IN ANY WAY OCCURRING, INCIDENT TO, ARISING OUT OF OR IN CONNECTION WITH THE WORK PERFORMED OR TO BE PERFORMED BY VENDOR HEREUNDER OR OCCURRING, INCIDENT TO, ARISING OUT OF OR IN CONNECTION WITH THE PRESENCE OF VENDOR AND VENDOR PERSONNEL ON THE JOBSITE, EVEN IF SUCH DAMAGES ARE CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER SOLE, JOINT, CONCURRENT, CONTRIBUTING, OR COMPARATIVE), STRICT LIABILITY, OR OTHER LEGAL FAULT OF THE COMPANY-INDEMNIFIED PARTIES.

9.2 Intellectual Property Indemnification9.2.1 TO THE FULLEST EXTENT PERMITTED BY LAW, VENDOR SHALL DEFEND, INDEMNIFY, AND

HOLD HARMLESS COMPANY, ITS AFFILIATES AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (THE “COMPANY-INDEMNIFIED PARTIES”) FROM AND AGAINST ANY AND ALL DAMAGES (“DAMAGES” MEANS THE AMOUNT OF ANY ACTUAL LIABILITY, LOSS, COST, EXPENSE, CLAIM, AWARD OR JUDGMENT INCURRED OR SUFFERED BY AN INDEMNIFIED PERSON ARISING OUT OF OR RESULTING FROM THE INDEMNIFIED MATTER, WHETHER ATTRIBUTABLE TO CONTRACT CLAIMS (INCLUDING CONTRACTUAL INDEMNITY CLAIMS), TORTS, OR OTHERWISE, INCLUDING COSTS OF ENFORCEMENT OF THE INDEMNITY AND (1) REASONABLE FEES AND EXPENSES OF ATTORNEYS, CONSULTANTS, ACCOUNTANTS OR OTHER AGENTS AND EXPERTS REASONABLY INCIDENT TO MATTERS INDEMNIFIED AGAINST, AND (2) THE COSTS OF INVESTIGATION AND/OR MONITORING OF SUCH MATTERS) INCURRED OR SUFFERED BY THE COMPANY-INDEMNIFIED PARTIES WHICH ARISE OUT OF OR ARE RELATED TO ANY CLAIM OR SUIT FOR INFRINGEMENT OR MISAPPROPRIATION OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHT (“INTELLECTUAL PROPERTY” MEANS ALL PATENTS, DESIGN RIGHTS, COPYRIGHTS, DATABASE RIGHTS, TRADEMARKS, TRADE NAMES, RIGHTS IN INVENTIONS, KNOW-HOW, AND TRADE SECRETS, AND ALL OTHER INTELLECTUAL PROPERTY RIGHTS THROUGHOUT THE WORLD, WHETHER REGISTERED OR UNREGISTERED, AND INCLUDING ALL APPLICATIONS AND RIGHTS TO APPLY FOR ANY OF THE SAME) OF A THIRD PERSON IN CONNECTION WITH THE MANUFACTURE, SALE, USE OR OTHER DISPOSITION OF ANY ARTICLE, MATERIAL, EQUIPMENT OR INTELLECTUAL PROPERTY FURNISHED HEREUNDER BY VENDOR, OR THE PERFORMANCE OR USE OF THE WORK OR PART THEREOF. IF, BY REASON OF ANY SUCH CLAIM, SUIT OR THREATENED ACTION CONCERNING INTELLECTUAL PROPERTY, COMPANY IS ENJOINED FROM USING THE WORK OR ANY PART THEREOF, VENDOR SHALL, PROMPTLY AND AT ITS OWN EXPENSE, (1) DILIGENTLY PROCURE FOR COMPANY THE RIGHT TO USE THE WORK; (2) SUBSTITUTE EQUIVALENT BUT NON-INFRINGING OR NON-MISAPPROPRIATING WORK SATISFACTORY TO COMPANY; OR (3) MODIFY THE WORK, IN A WAY SATISFACTORY TO COMPANY, SO IT BECOMES NON-INFRINGING OR NON-MISAPPROPRIATING, PROVIDED THAT IF SUCH ACTIONS ARE NOT PRACTICABLE IN THE REASONABLE OPINION OF VENDOR, AFTER GIVING DUE CONSIDERATION TO ALL FACTORS INCLUDING FINANCIAL EXPENSE, VENDOR MAY ELECT TO REFUND TO COMPANY ALL AMOUNTS PAID BY COMPANY TO VENDOR HEREUNDER.

9.3 Data Security Indemnification9.3.1 Vendor acknowledges and understands there is the potential for Company to be susceptible to

data theft, security breaches, virus or other malicious code installations, or other cyber threats (“Security Breach”) caused by or through the Work, including Vendor’s access to the Company’s information technology including its hardware, software and network (collectively “System”). As a result, Vendor agrees to (1) establish and maintain appropriate and reasonable policies and procedures, and (2) implement and maintain appropriate and reasonable administrative, technical, and physical safeguards designed to detect, prevent, and mitigate the risk of Security Breaches. Vendor shall immediately notify Company of any known or suspected Security Breach, and within three (3) Business Days of the occurrence, shall provide a report detailing the results of the investigation and corrective actions taken by Vendor. Such notifications and reports shall be submitted to Company’s Designated Point of Contact and to Contract Administrator. TO THE FULLEST EXTENT PERMITTED BY LAW, VENDOR SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS COMPANY, ITS AFFILIATES AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (THE “COMPANY-INDEMNIFIED PARTIES”) FROM AND AGAINST ANY AND ALL DAMAGES INCURRED OR SUFFERED BY THE COMPANY-INDEMNIFIED PARTIES ON ACCOUNT OF A SECURITY BREACH IN ANY WAY OCCURRING, INCIDENT TO, ARISING OUT OF OR IN CONNECTION WITH THE WORK PERFORMED OR TO BE PERFORMED BY VENDOR HEREUNDER OR OCCURRING, INCIDENT TO, ARISING OUT OF OR IN CONNECTION WITH VENDOR OR VENDOR PERSONNEL’S ACCESS TO COMPANY’S SYSTEM TO THE EXTENT SUCH DAMAGES ARE CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER SOLE, JOINT, CONCURRENT, CONTRIBUTING, OR COMPARATIVE), STRICT LIABILITY, OR OTHER LEGAL FAULT OF VENDOR, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS.

9.3.2 For purposes of this section (Data Security Indemnification), “Damages” means the amount of any actual liability, loss, cost, expense, claim, award or judgment incurred or suffered by an indemnified Person arising out of or resulting from the indemnified matter, whether attributable to contract claims (including contractual indemnity claims), torts, or otherwise, including (1) costs of enforcement of the indemnity; (2) reasonable fees and expenses of attorneys, consultants, accountants or other agents and experts reasonably incident to matters indemnified against; (3) the costs of investigation and/or monitoring of such matters; and (4) in connection with a Security Breach:

9.3.2.1 Expenses incurred to provide warning or notice to Company’s customers and employees, law-enforcement agencies, regulatory bodies or other third parties;

9.3.2.2 Expenses incurred to investigate, assess or remediate a Security Breach or failure to comply with Law;

9.3.2.3 Expenses incurred to hire any public relations consultants to respond to a Security Breach;

9.3.2.4 Expenses incurred to provide credit monitoring services to individuals affected by a Security Breach;

9.3.2.5 Expenses incurred to retain a call center to respond to inquiries regarding a Security Breach;

9.3.2.6 Fines, penalties or recovery amounts due to a Security Breach; and

9.3.2.7 Expenses incurred to respond to or address any investigation by law-enforcement agencies, regulatory bodies or other third parties.

9.4 Indemnification Actions9.4.1 All claims for indemnification under this Contract shall be resolved as follows:

9.4.1.1 For purposes of this section (Indemnification Actions), (1) “Indemnified Person” means the Person(s) having the right to be indemnified for Damages (as defined in the appropriate Indemnification Section) by Vendor pursuant to the Contract, and (2) a “Third Party Claim” means a claim by a third Person against an Indemnified Person.

9.4.1.2 Vendor shall have thirty (30) calendar days from receipt of notice of a Third Party Claim to notify the Indemnified Person in writing whether it admits or denies its obligation to defend the Indemnified Person against such Third Party Claim. If Vendor fails to give timely notice, it shall be deemed obligated to provide indemnification. The Indemnified Person may file any pleading it deems appropriate to protect its or the Vendor’s interests before the Vendor admits or denies its obligation.

9.4.1.3 If Vendor assumes control of a Third Party Claim, it shall have the right to defend, at its sole cost and expense, the Third Party Claim, and shall have control of such defense and proceedings, including any settlement, provided that if the Third Party Claim (1) demands equitable relief, (2) is a criminal or regulatory proceeding with potential criminal sanctions against the Indemnified Person, (3) would require an admission of guilt or wrongdoing by the Indemnified Person, or (4) would impose any continuing obligation on or require payment from the Indemnified Person, the Indemnified Person shall have the option, by notice to Vendor within the thirty (30) day period set forth above, to control the defense and proceedings. Vendor shall keep the Indemnified Person updated and shall consider in good faith the Indemnified Person’s recommendations regarding the Third Party Claim. The Indemnified Person agrees to use reasonable efforts to cooperate in the defense of any Third Party Claim, but the Indemnified Person shall not be required to bring any counterclaim or cross-complaint.

9.4.1.4 The Indemnified Person may at its own expense participate in, with its own separate counsel, but not control, any defense or settlement of any Third Party Claim controlled by Vendor. Notwithstanding the foregoing, Vendor shall pay the reasonable attorneys’ fees and expenses of such defense if (1) the Indemnified Person’s counsel reasonably advises that there are defenses available to such Indemnified Person that are different from or additional to those available to Vendor, or (2) the Indemnified Person’s counsel advises that it could be inappropriate under the standards of professional conduct to have common counsel for the Indemnified Person and Vendor.

9.4.1.5 Vendor shall not, without the Indemnified Person’s prior written consent, compromise or consent to any judgment of the Third Party Claim which (1) does not result in a final resolution of the Indemnified Person’s liability (including an unconditional written release of the Indemnified Person from all further liability for the Third Party Claim) or (2) may materially and adversely affect the Indemnified Person (other than as a result of Damages covered by the

indemnity).

9.4.1.6 If Vendor does not assume the defense of a Third Party Claim or assumes the defense but fails to diligently defend or settle the Third Party Claim, the Indemnified Person shall have the right to assume the defense (at the sole cost and expense of Vendor), with counsel of the Indemnified Person’s choosing, and shall have full control of such defense, including any compromise thereof, provided that the Vendor’s prior written consent to any such compromise shall be required if the Third Party Claim (1) demands equitable relief from the Vendor, (2) is a criminal or regulatory proceeding with potential criminal sanctions against Vendor, or (3) would require an admission of guilt or wrongdoing by Vendor.

9.4.1.7 Vendor shall have thirty (30) calendar days from receipt of notice of a claim for indemnification not based upon a Third Party Claim to (1) cure the Damages at no cost to any Indemnified Person, (2) admit its obligation to provide indemnification with respect to such Damages, or (3) dispute the claim. If Vendor fails to give timely notice, Vendor shall be deemed obligated to provide such indemnification.

9.5 Indemnification Survival9.5.1 The indemnity obligations in this section (Indemnity) shall survive any termination of the

Contract.

10 TERMINATION10.1 Termination for Cause10.1.1 Company shall have the right to terminate the Contract in whole or in part at any time by

written notice to Vendor if Vendor (1) fails to perform any of its obligations under the Contract or to observe any provision of the Contract (including any provision of the Contract providing for payment of money to Company); (2) becomes insolvent, generally does not pay its debts as they become due, admits in writing its inability to pay its debts, makes any assignment for the benefit of creditors, or commences, or has commenced against it, any insolvency, receivership, reorganization, bankruptcy or similar proceedings; or (3) fails to make progress so as to give Company reason to believe that such failure to make progress may endanger performance of the Contract in accordance with its terms; and Vendor, in any of these circumstances, does not provide adequate assurances of performance within a period of ten (10) calendar days (or such longer period as Company may authorize in writing) after receipt of said notice from Company specifying such failure.

10.1.2 If, after Company delivers a notice of termination under the provisions of this section (Termination for Cause), it is determined that Vendor was not in default of the Contract or if Company elects to excuse such default but still desires to terminate the Contract, the rights and obligations of the Parties shall be the same as if notice of termination had been given pursuant to the Termination for Convenience section.

10.1.3 If Company terminates the Contract as provided in this section (Termination for Cause), it may

procure, upon such terms and in such manner as it may deem appropriate, completion of the Work, or any part thereof so terminated from another vendor at its sole discretion, and Vendor shall be liable to Company for the costs of such procurement and completion of said Work (where, and to the extent that, such costs exceed the Contract Price), including third Person or subcontractor or supplier costs incurred by Company. Vendor shall continue the performance of the Contract to the extent not terminated under the provisions of this section (Termination for Cause).

10.1.4 If the Contract is terminated as provided in this section (Termination for Cause), Vendor shall deliver to Company, in the manner and to the extent directed by Company, (1) any completed Work, and (2) such partially completed Work as Vendor has specifically produced or acquired for the performance of the Contract. Vendor shall, as directed by Company, protect and preserve such Work in the possession of Vendor in which Company has an interest until such time as said Work has been delivered to Company and title to such Work has passed to Company.

10.1.5 Payment for Work accepted by Company shall be made in accordance with the terms and conditions of the Contract. However, Company may withhold from amounts otherwise due Vendor such sums as Company determines to be necessary to protect itself against loss or damage.

10.1.6 The rights and remedies of Company provided in this section (Termination for Cause) shall not be exclusive and are in addition to any other rights and remedies provided under the Contract or at law or in equity.

10.2 Termination for Convenience10.2.1 The Contract may be terminated by Company at any time, in whole or in part, at Company’s sole

and absolute discretion, with or without cause. Any such termination shall be effected by written notice from Company to Vendor specifying the extent to which the Contract is terminated, and the date upon which such termination becomes effective.

10.2.2 After receipt of a notice of termination, Vendor shall submit to Company its final invoice, which shall be exclusive of any special, indirect, incidental or consequential damages, loss of profits, or expenses, in the form and with certification prescribed by Company. Such invoice shall be submitted promptly, but in no event later than three (3) months from the effective date of termination. Upon failure of Vendor to submit its final invoice within the time allowed, Company may determine, on the basis of information available to it, the amount, if any, due to Vendor by reason of the termination and shall thereupon pay to Vendor the amount so determined which amount shall be full compensation as to any claims arising under the Contract.

10.2.3 Any amounts payable by Company to Vendor shall be reasonable and based on actual incurred costs which are directly attributable to materials received and accepted in accordance with the Contract or Work timely and satisfactorily performed prior to the termination date. The responsibility of substantiating all costs and claims shall be borne by Vendor. Company shall have no obligation to compensate Vendor for any costs or claim items unless substantiation and

documentation are provided to Company’s satisfaction.

10.2.4 The rights and remedies of Company provided in this section (Termination for Convenience) shall not be exclusive and are in addition to any other rights and remedies provided under the Contract or at law or in equity.

11 FORCE MAJEURE11.1.1 Performance of the Contract by each Party shall be pursued with due diligence in all respects

thereof. However, neither Party shall be liable for any loss or damage for delay or for non-performance due to (1) an act or event that (a) is beyond the reasonable control of and not the fault of the non-performing Party, (b) was not reasonably foreseeable, and (c) the non-performing Party has been unable to avoid or overcome by the exercise of commercially reasonable efforts; or (2) in the case of Company, Company or its Affiliates activate an Emergency Operation Plan due to a disaster or threatened disaster in any of their service territories, or Company or any of its Affiliates provide disaster assistance elsewhere in the United States in connection with a declared emergency. In the event of any delay resulting from such causes, the time for performance of each of the Parties hereto (including the payment of monies) shall be extended for a period of time reasonably necessary to overcome the effect of such delays and no further modification to other terms and conditions of the Contract shall occur. The Party claiming a force majeure delay shall use its best efforts to limit the duration and adverse effects of such event or occurrence and to promptly resume performance of its obligations under the Contract.

11.1.2 In the event of any delay or nonperformance caused by the above causes, the affected Party shall promptly notify the other Party in writing of the nature, cause, date of commencement and anticipated extent of such delay, and shall indicate whether it is anticipated that any completion dates will be affected thereby.

12 PROPRIETARY AND CONFIDENTIAL INFORMATION12.1 Company Confidential Information12.1.1 Company has a proprietary interest in the Contract, the Work provided hereunder, and the work

product derived therefrom. Vendor and Vendor Personnel may have access to and become familiar with various customer lists, trade secrets, and other confidential or proprietary information of Company or other parties, including formulas, patents, devices, secret inventions, processes and compilations of information, records, programs, software and source codes, which are owned by Company or subject to the confidential obligations of Company (all hereinafter referred to as “Company Confidential Information”). Company Confidential Information shall not include information which Vendor can demonstrate by competent proof (1) is now, or hereafter becomes generally known or available in the public domain (other than as a result of a disclosure directly or indirectly by Vendor or any Vendor Personnel in violation of this section, Proprietary and Confidential Information); (2) is known by Vendor or any Vendor Personnel on a non-confidential basis at the time of disclosure to Vendor by Company, so long

as the source of such information is not under a contractual, legal, fiduciary or other obligation not to disclose such information; or (3) is independently developed by Vendor or Vendor Personnel without any breach of the Contract.

12.1.2 Any Company Confidential Information classified as “Critical Energy Infrastructure Information” shall be subject to additional restrictions set forth in Company’s Critical Energy Infrastructure Information Policy, including execution of a Critical Energy Infrastructure Information Non-Disclosure Agreement.

12.1.3 Vendor shall use Company Confidential Information solely for the purpose of performing the Work and not for any other purpose, including in any way detrimental or potentially detrimental to Company or any of its Affiliates. Vendor shall maintain the strict confidentiality of the terms of the Contract, the work product resulting from the Contract, and any Company Confidential Information provided to Vendor or any Vendor Personnel and shall not disclose or sell any of the foregoing, except that Vendor may disclose Company Confidential Information to those Vendor Personnel who have a reasonable need to know such information in order for Vendor to perform the Work if, prior to any such disclosure, (1) Vendor informs any Vendor Personnel of the terms of this section (Proprietary and Confidential Information) and (2) such Vendor Personnel agrees in writing to preserve the confidentiality of the Company Confidential Information under the terms of this section (Proprietary and Confidential Information). Vendor shall cause Vendor Personnel to comply with the terms of this section (Proprietary and Confidential Information), and shall be responsible for any breach of this section (Proprietary and Confidential Information) by any of Vendor Personnel.

12.1.4 If Vendor or any Vendor Personnel become required by Law or applicable legal process to disclose any Company Confidential Information, Vendor shall provide Company with prompt prior written notice of such requirement and the terms of and circumstances surrounding such requirement so that Company may seek an appropriate protective order or other remedy, and Vendor shall provide, and shall cause such Vendor Personnel to provide, such cooperation with respect to obtaining a protective order or other remedy as Company may reasonably request. If, in the absence of a protective order or other remedy or the receipt of a waiver by Company, Vendor or any Vendor Personnel are nonetheless, in the opinion of legal counsel to Vendor expressed in writing and reasonably acceptable in form and substance to Company, legally compelled to either disclose Company Confidential Information to any tribunal or stand liable for contempt or suffer other censure or penalty, Vendor or that Vendor Personnel may, without liability hereunder, disclose to such tribunal only that portion of the Company Confidential Information that such counsel advises Vendor is legally required to be disclosed. Vendor shall exercise its best efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such Company Confidential Information by such tribunal.

12.1.5 Company retains the entire right, interest and title to Company Confidential Information. All files, records, documents, source codes, programs, software, equipment and similar items relating to the business of Company, no matter by whom prepared, shall remain the exclusive property of Company.

12.1.6 The covenants contained in this section (Proprietary and Confidential Information) shall be construed independently of any other provisions of the Contract and shall survive the termination of the Contract. The existence of any claim or cause of action of Vendor Personnel against Vendor, whether predicated on the Contract or otherwise, shall not constitute a defense to the enforcement by Vendor or Company of the covenants in this section (Proprietary and Confidential Information).

12.1.7 Vendor acknowledges that disclosure of any Company Confidential Information by Vendor or Vendor Personnel may give rise to irreparable injury to Company, inadequately compensable in damages. Accordingly, Company shall be entitled to seek and obtain injunctive relief, in addition to other legal remedies, which may be available in the event of any disclosure of Company Confidential Information by Vendor or Vendor Personnel.

12.1.8 Upon Company’s request, Vendor shall, and shall cause Vendor Personnel to, (1) immediately cease using the Company Confidential Information and (2) promptly return or destroy (at Company’s option) all Company Confidential Information, including materials prepared in whole or in part based on such Company Confidential Information, and all copies thereof. Upon Company’s request, an authorized officer of Vendor supervising the return or destruction of Company Confidential Information shall certify that Vendor no longer has in its possession or under its control any Company Confidential Information in any form whatsoever, or any copy thereof.

12.2 Vendor Confidential Information12.2.1 Company’s personnel may have access to and become familiar with confidential or proprietary

information of Vendor, which is owned by Vendor or subject to the confidential obligations of Vendor, (all hereinafter referred to as “Vendor Confidential Information”). Except as provided in the exceptions and exclusions below, and provided that Vendor Confidential Information is clearly marked “Confidential,” neither Company nor Company’s personnel shall disclose Vendor Confidential Information during the performance of the Work or for a period of three (3) years following completion of the Work.

12.2.2 Vendor Confidential Information shall not be deemed to include information which Company or Company’s personnel can demonstrate by competent proof: (1) is now, or hereinafter becomes, through no act or failure to act on the part of Company or Company’s personnel generally known and/or generally available in the public domain; (2) is known by Company or Company’s personnel at the time of acquiring or receiving such Vendor Confidential Information, so long as the source of such information is not under a contractual, legal, fiduciary or other obligation not to disclose such information; (3) is furnished to others by Vendor without restrictions on disclosure; (4) is independently developed by Company or Company’s personnel without any breach of the Contract; or (5) is required to be disclosed by Company or Company’s personnel by judicial, regulatory or administrative action after having furnished notice to Vendor, and after using reasonable legal remedies to maintain such Vendor Confidential Information as confidential. In addition, Vendor acknowledges that Company and its regulated affiliates may be called upon to disclose information relative to their business to regulatory, administrative,

judicial, reliability and governmental authorities, and to parties to proceedings before such bodies to which such regulated entity is also a party. As a result, Company and its regulated affiliates may, in their sole discretion, deem it appropriate or advisable to voluntarily disclose certain information in connection with discussions, filings, or proceedings. In so doing, Company or any of its regulated affiliates may voluntarily release information (including Vendor Confidential Information) to any such regulatory, administrative, judicial, reliability council or governmental authority, provided that Company shall use all reasonable efforts to prevent Vendor Confidential Information from being disclosed to the general public, including, but not limited to, seeking protection of such Vendor Confidential Information under a protective order and limiting the disclosure of same to relevant portions of documents or information. Subject to the foregoing, Company shall provide Vendor with prompt written notice of its intent to make any such voluntary disclosure of Vendor Confidential Information so that Vendor may, if it so elects, seek a protective order or other appropriate remedy.

12.2.3 Company acknowledges that the Work may require certain intellectual property and materials that Vendor or others previously or independently developed, and that Company will not acquire any interest whatsoever in such intellectual property, except as may be otherwise specifically set forth in the Contract.

13 DISPUTE RESOLUTION13.1.1 The Parties shall attempt to promptly resolve any controversy, claim or dispute arising out of or

relating to the Contract or the construction, interpretation, performance, breach, termination, enforceability or validity thereof by face-to-face negotiation between representatives who have full and complete authority to settle any such controversy, claim, or dispute. The Parties shall participate in face-to-face negotiations prior to the commencement of any litigation or the filing of any lawsuit with a court.

13.1.2 A Party may give written notice of a dispute (a “Dispute Notice”) by certified mail, return receipt requested, to the other Party’s designated address and representative identified on the Contract Cover Sheet. A Dispute Notice shall succinctly state the nature of the dispute and identify the issuing Party’s representative who has full authority to settle the dispute and who will attend the face-to-face negotiation. Within seven (7) calendar days of the receipt of the Dispute Notice, the receiving Party shall advise the other Party by certified mail, return receipt requested (to the designated address and representative identified on the Contract Cover Sheet), of the identity of its representative with full authority to settle the dispute who will attend the face-to-face negotiation. Within thirty (30) calendar days of delivery of the Dispute Notice, the designated Party representatives shall meet at a mutually acceptable time and place, and thereafter continue to meet as often as they may reasonably deem necessary, to use their good-faith and reasonable efforts to attempt to resolve the controversy, claim or dispute. Should the Parties be unable to mutually agree as to the place of such meeting, the meeting shall be held at a neutral site which is reasonably geographically equidistant between the Parties’ principal places of business. A Party may elect, upon written notice to the other Party, to bring its legal counsel to such face-to-face negotiations. The face-to-face negotiations described above shall continue until either an agreement is reached or a Party determines to

withdraw from the negotiations.

13.1.3 If the dispute is not resolved within thirty (30) calendar days after the Parties begin face-to-face negotiations or if the Parties fail to meet within thirty (30) calendar days after delivery of the Dispute Notice, either Party may initiate mediation of the controversy, claim or dispute. The timetables set forth for face-to-face negotiations may be extended by mutual agreement evidenced by a written memorandum signed by representatives for all Parties.

13.1.4 All aspects of face-to-face negotiations, including those during mediation, pursuant to this section (Dispute Resolution), shall be confidential and treated as compromise and settlement negotiations for purposes of the applicable rules of evidence. The Parties and the mediator, if applicable, shall maintain the confidentiality of all information related to such negotiations, shall not disclose the same to any Person except as expressly authorized in this section (Dispute Resolution) and nothing disclosed in the course of such negotiations which is not otherwise independently discoverable may be offered or received as evidence or used for impeachment or for any other purpose in any future arbitration or litigation. Notwithstanding the foregoing, each Party shall be entitled to disclose such information (1) to its Affiliates and its and their directors, officers, employees, agents and attorneys; (2) to financial or lending institutions, outside auditors, insurers, and entities involved in the Work, provided that any such Person is bound by a written agreement to keep such information confidential; (3) as may be required by Law or by the rules of any stock exchange applicable to such Party or its Affiliates, or as part of such Party’s or its Affiliates’ good-faith effort to comply with disclosure obligations under any of the same; or (4) as may be necessary to enforce such Party’s rights hereunder.

14 RECORDS AND AUDITS14.1.1 During the term of the Contract and for a period of four (4) years following the termination of

the Contract, or longer as required by Law, Vendor shall make, keep and maintain complete and accurate records relating to the Work.

14.1.2 Vendor’s records shall be open to inspection and subject to audit and reproduction, upon reasonable notice, during normal business working hours. Vendor shall provide Company with access to information, materials and data that may in Company’s reasonable judgment have any bearing on or pertain to any matters, rights, duties or obligations under or covered by the Contract, to the extent necessary to adequately permit evaluation and verification of Vendor compliance with Contract requirements. Such records shall include hard copy, as well as computer-readable data if available. Audits may be performed by Company’s representative or an outside representative engaged by Company during the term of the Contract and for a period of four (4) years after the termination of the Contract or longer if required by Law. Company’s representative or designee shall have reasonable access to Vendor’s facilities, and shall be provided adequate and appropriate workspace (if necessary), in order to conduct audits in compliance with this section (Records and Audits).

14.1.3 If an audit, inspection, or examination discloses an overcharge (of any nature) by Vendor to Company in excess of one percent (1%) of the total Contract billings covered by the audit in

question, in addition to making adjustments for the overcharge, the reasonable actual cost of Company’s audit shall be reimbursed to Company by Vendor. Any adjustments and payments which must be made as a result of any such audit, inspection or examination shall be made within a reasonable amount of time (not to exceed thirty (30) calendar days) from presentation of Company’s findings to Vendor.

14.1.4 Vendor shall insert requirements in each subcontract requiring each Subcontractor to (1) maintain the same types of records as Vendor is required to maintain in this section (Records and Audits); and (2) provide Company the same access to the Subcontractor’s records as Vendor is required to provide to Company under this section (Records and Audits).

14.1.5 Vendor’s obligations under this section (Records and Audits) shall survive the termination of the Contract.

15 MISCELLANEOUS15.1 Governing Law; Jurisdiction; Venue15.1.1 The Law of the State of Texas, without giving effect to principles of conflict of laws, govern all

matters arising out of or relating to the Contract and all of the transactions it contemplates, including its validity, interpretation, construction, performance, and enforcement. Vendor hereby irrevocably and unconditionally consents to the exclusive jurisdiction of the courts of the State of Texas and of the United States of America located in the State of Texas, County of Harris, for any actions, suits, or proceedings arising out of or relating to the Contract. Vendor hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit, or proceeding arising out of the Contract, in the courts of the State of Texas or the United States of America located in the State of Texas, County of Harris, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.

15.2 Third-Party Beneficiaries15.2.1 The Contract does not and is not intended to confer any rights or remedies upon any Person

other than Vendor and Company, excepting those Persons expressly entitled to (1) indemnification under this Contract, or (2) any rights or benefits under the Insurance section. The Parties reserve the right to rescind, waive or vary the terms of the Contract without notice to or consent of any such third Person, even if, as a result, such third Person’s right to enforce a term hereof will be varied or extinguished.

15.3 Counterparts15.3.1 The Parties may sign the Contract in several counterparts, each of which will be deemed an

original but all of which together will constitute one instrument. Any electronic signature by an authorized representative of a Party shall be a manifestation of assent and shall be given full

effect. Any signature of the Contract delivered by facsimile or scanned document transmitted by email shall be deemed to be an original signature for all purposes.

15.4 Supplier Diversity15.4.1 Company recognizes the economic importance of diverse suppliers such as minority-owned,

women-owned, and all categories of small business concerns to the community. Company is committed to developing strong working relationships with diverse suppliers, provided that such relationships provide value both to Company and to diverse suppliers.

15.4.2 Company seeks to include diverse supplier participation in its procurement of goods and services. Non-diverse prime contractors should seek to include diverse suppliers in the performance of Work.

15.4.3 Company, or one or more of its corporate affiliates (“Affiliate”), is a contractor to the United States Government under an Area Wide Agreement to sell natural gas and other service. Such Affiliate is required under 48 CFR 52.219-8 and 9 and other regulations to develop a subcontract plan for utilization of Small Business Concerns (“SBC”) and Minority and Women-Owned Business concerns (“MWBE”), and to report to the General Services Administration Agency the actual results of Affiliate’s Small Business Subcontracting Plan. In addition, Company, or one of its Affiliates, is required under the Texas Utilities Code §39.909 to report spend associated with SBC and MWBE suppliers.

15.4.4 In support of Company’s obligations set forth above, Vendor shall collect and report to Company its direct second-tier MWBE and Small Veteran-Owned Business (“MWBE/SVET”) spend on a per contract, quarterly basis. While Company recognizes that certain goods or services may present limited opportunities, Company expects that the amount of such spend will take into account the maximum practicable opportunities, consistent with efficient and effective supplier performance. Company will evaluate Vendor’s demonstrated commitment to maximizing spend with diverse suppliers on an ongoing basis.

15.4.5 Company will provide forms and instructions for reporting Vendor’s second-tier spend. Vendor’s reporting results will be aggregated with other Company vendor results, and will be used internally as well as included in federal, state, and industry required filings.

15.4.6 In addition to reporting requirements, Vendor may also be required to participate in Company directed supplier diversity outreach and development events such as workshops, expos, forums, trainings, networking, and mentoring in Company’s footprint.

15.4.7 Company asks that Contractor be aware of the policies above and support them.

15.5 Notices and Correspondence15.5.1 All notices or correspondence arising from or pertaining to the Contract must be in writing and

delivered in person, or electronically, or sent by registered or certified mail or nationally or internationally recognized overnight courier, with all fees prepaid, to the receiving Party at the

address identified on the Contract Cover Sheet.

15.5.2 Either Party may, at any time, change its mail or delivery address by giving the other Party ten (10) calendar days prior written notice.

15.5.3 The effective date of any written notice delivered or mailed pursuant to the Contract shall be the date of receipt by Company or Vendor, as applicable, if delivered, or the postmark date if mailed. If the receiving Party rejects or otherwise refuses to accept a notice, or if it cannot be delivered because of a change in address for which no notice was given, then notice will be deemed given upon that rejection, refusal or inability to deliver.

15.6 Publicity15.6.1 Vendor shall not take any photographs, make any announcement or release any information

concerning the Contract or any part thereof to any member of the public, the press or any third Person, unless prior written consent is obtained from Company. Vendor shall not, under any circumstances, represent itself as a Company-authorized vendor or a Company employee in any advertisement or telephone directory.

15.7 Modification; Non-Waiver of Rights15.7.1 No amendment of the Contract will be effective unless it is in writing and signed by the Parties.

No waiver of satisfaction of a condition or nonperformance of an obligation under the Contract will be effective unless it is in writing and signed by the Party granting the waiver, and no such waiver will constitute a waiver of satisfaction of any other condition or nonperformance of any other obligation. To be valid, any document signed by a Party in accordance with this section (Modification; Non-Waiver of Rights) must be signed by an officer or other authorized representative of that Party.

15.8 Severability15.8.1 If any provision of the Contract is held invalid, illegal or unenforceable, (1) the remaining

provisions of the Contract will remain in full force, if the essential terms and conditions of the Contract for both Parties remain valid, legal and enforceable; and (2) the court or other tribunal rendering the provision invalid, illegal or unenforceable shall modify the Contract so as to effect the original intent of the Parties to the fullest extent permitted by Law.

15.9 Further Assurances15.9.1 If at any time after the date of the Contract any further action is necessary or appropriate to

carry out the purposes of the Contract, Vendor shall take, or cause to be taken, that action.

15.10 Complete Agreement15.10.1 The furnishing of Work hereunder, or any other definite and reasonable expression of

acceptance by Vendor, shall operate as an acceptance of these Terms and Conditions by Vendor,

and the effect of such acceptance shall be to make a contract on Company’s terms as set forth in this document.

15.10.2 The terms and conditions of the Contract prevail over any terms and conditions contained in any other document and expressly exclude any of Vendor’s general terms and conditions. Additional or different terms and conditions will not become a part of the Contract unless mutually agreed to in writing by the Parties.

15.10.3 The Contract contains the entire agreement between the Parties, and is the complete and exclusive expression of the Parties’ agreement on the subject matter of the Contract. The Contract supersedes all other oral or written agreements relating to the Contract. The provisions of the Contract may not be explained, supplemented, or qualified through evidence of trade usage or a prior course of dealings or performance. In entering into the Contract, neither Party has relied upon any statement, representation, warranty, or agreement of the other Party except for those expressly contained in the Contract.