United States Environmental Services Terms and Conditions of Purchase

1.SCOPE.

From time to time United States Environmental Services, LLC and its affiliates(“USES”) may request goods, services or equipment rentals from a vendor (the “Supplier”) as evidenced by provision of a purchase order to Supplier. USES may require performance of services by Supplier at the physical plant of a USES customer (“Client”). The purchase order to which these terms and conditions are affixed or in which these terms are referenced are collectively, the “Agreement.”  Supplier agrees to furnish all goods, labor, equipment, parts, materials, tools, services or rental equipment as are necessary and/or appropriate to perform Supplier’s scope of work in accord with this Agreement. Time is of the essence. Supplier shall maintain a sufficient quantity of the necessary equipment, parts, materials, tools, manpower and supervision as required in the Agreement to avoid delays in the completion of its work.

2.INDEPENDENT SUPPLIER.

Supplier is and shall perform this Agreement as an independent Supplier and, as such, shall maintain complete supervision and control over all employees, agents, subcontractors, and operations. Neither party shall have the authority to bind the other party.

3.SUBLETTING OR ASSIGNMENT OF AGREEMENT.

Supplier shall not use subcontractors to perform any Services under this Agreement without the prior written consent of USES. Any reference to subcontractors herein shall not be deemed to authorize the use of subcontractors, unless expressly so stated. Supplier shall not assign any of its rights (including without limitation the right to any moneys due or to become due) or delegate any of its obligations under this Agreement without the prior written consent of USES. Supplier shall retain full responsibility for the performance of this Agreement notwithstanding any permitted use of subcontractors, assignment of rights or delegation of duties. Supplier shall be liable to USES for the acts and omissions of its subcontractors and assignees.

4.PROTECTION OF PROPERTY.

Supplier shall retain all risk of loss or damage to all goods, rental equipment and other property in the possession or under the control of Supplier or any of its employees, agents, representatives, suppliers, subcontractors, or others for whose conduct Supplier may be responsible. Supplier shall take all necessary precautions to protect the property of USES or Client from loss or damage, and shall, at the option of USES or Client, repair or replace, at Supplier’s expense any property lost or damaged by Supplier or its employees, agents, representatives, suppliers, subcontractors, or others for whose conduct Supplier may be responsible.

5.WARRANTIES.

a. Supplier represents and expressly warrants as follows:

1. Valid and Binding Obligation. This Agreement has been duly authorized, executed, and delivered and is fully enforceable against Supplier in accordance with its terms; and this Agreement is not in conflict with any other agreement by which Supplier may be bound.
2. Acceptance of Responsibilities. Supplier has inspected or has had the opportunity to inspect the relevant portions of Client’s physical plant to the extent that Supplier deems necessary, and accordingly, Supplier accepts its responsibilities under this Agreement with no representations or warranties whatsoever by USES or Client relating to the physical plant.
3. Goods or Materials. The equipment, parts, and other goods and materials provided by Supplier which are for the end use of USES or are to be incorporated into Client’s physical plant shall be new, of good quality, and suitable for their intended purposes; shall be free from defects in material, workmanship, and design; and shall conform to and perform in accordance with all specifications for the same, any documentation provided by the manufacturer or the Supplier thereof, and the performance criteria and other descriptions provided under this Agreement. Replacement parts shall be of equal or better quality than the part being replaced. No part, equipment, goods, or material shall in any way degrade or compromise the operation or performance of Client’s physical plant.
4. Services. Any services performed by Supplier shall be performed in a professional manner, conforming to the highest standards of the industry and the performance criteria provided under this Agreement, in compliance with all requirements of applicable federal, state and/or local laws, regulations, rules, and ordinances (collectively, “Laws”) and this Agreement. The services shall be performed by fully qualified, well trained, properly equipped personnel, which are licensed (if applicable).

b. Assignment of Warranties. Supplier shall obtain and hereby assigns to USES any and all warranties and indemnities available from any manufacturer or supplier of goods and materials or subcontractor of services or provided in connection with this Agreement.

c. Breach of Warranty. Without limitation of USES’s remedies at law or in equity, if any of the equipment, parts, goods or other materials provided or services performed by Supplier hereunder fails to comply with the warranties set forth herein, Contactor shall remedy such breach promptly upon notice, at no extra charge to USES, or, at USES’s option, shall refund the payments USES has made and arrange for return of any equipment, parts, goods or other materials provided or services performed by Supplier that fail to comply.

d. Rentals. Any rental equipment shall be in good operating order, and comply with the specifications set forth in the purchase order.  Rental equipment that may legally be operated on roads or highways shall conform to all Laws, including without limitation, licensing laws, vehicle inspection laws and be fully permitted if so required.  In the event the rental equipment fails to conform to the foregoing, USES shall notify Supplier by written e-mail notification and Supplier shall replace the equipment with identical or similar equipment.  Rental charges shall not be applicable between the time e-mail notification was sent to Supplier, and Supplier replaces the equipment.  Supplier shall deliver the rental equipment to the location and retake possession of the rental equipment at the same location, which location shall be designated by USES in the purchase order.  Supplier shall have the risk of loss of the rental equipment until accepted by USES at the designated location, and always have risk of loss whilst in Supplier’s possession.  Supplier may, if allowed by Client, enter Client’s physical plant to located and inspect the state of the rented equipment.  If such entry is allowed, Supplier shall comply with all policies of Client, including without limitation, all safety and identification requirements.

6.COMPLIANCE WITH LAWS.

a. General. Supplier warrants that in performance of this Agreement it has complied and will comply with all Laws, orders and decrees and with policies and procedures of USES and Client that have been made available to Supplier in writing or electronically, including without limitation, the applicable health and safety policy which shall be the most stringent policy of USES or the Client.

b. Equal Employment Opportunity. The nondiscrimination clause contained in Section 202, Executive Order 11246 as amended by Executive Order 11375, 41 C.F.R. part 60-1, relative to equal employment opportunity for all people without regard to equal employment opportunity for all people without regard to race, color, religion, sex or national origin; Section 503 of the Rehabilitation Act of 1973, 20 C.F.R. §§ 741.3, 741.4 relative to nondiscrimination on the basis of physical or mental handicap; and the Vietnam Era Veterans and the implementing rules and regulations prescribed by the Secretary of Labor are hereby made part of this agreement and the Supplier will honor such statutes, clauses, Executive Orders, and implementing rules. The Supplier will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, sex, creed, color, national origin, handicap, or veteran status. Such action shall include, but not limited to, the following: employment, promotion, demotion or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection of training, including apprenticeship.

c. Permits. Supplier obtain at its expense and shall give all notices required by, and comply with, all governmental licenses, permits, inspections, and approvals required for its work, including but not limited to those required by any local jurisdiction or by Client’s physical plant. All work, including but not limited to electrical and mechanical work, must abide by all applicable codes and industry standards.

d. Fines. Supplier shall pay any fines or penalties assessed against USES or Client to the extent the assessment of such fines or penalties results from Supplier’s delay or failure in performing its obligations under this Agreement.

e. Release of Liens. All goods supplied and all services performed by Supplier pursuant to this Agreement shall be free from all liens. Upon the request of Client or USES, Supplier shall provide a proper release of liens or other satisfactory evidence of freedom from liens.

7.COMPLIANCE WITH SAFETY STANDARDS AND REGULATIONS.

a. OSHA State and Local Regulation. Supplier shall ensure that all of its personnel, subcontractors, and the general public are properly protected from potential injury due to any act or omission, or any machinery, equipment or other property owned or operated by Supplier or any of its employees, agents, representatives, suppliers, subcontractors or others for whose conduct Supplier may be responsible, as required by the Occupational Safety and Health Act of 1970, and all applicable regulations thereunder, and by all other Laws. Supplier shall ensure that all machinery and equipment used in the performance of the work comply with applicable law. If USES, in its reasonable judgment, determines that any additional protection is necessary to comply with good management practices or applicable law, Supplier shall provide the same at no additional charge. Supplier shall be considered to have materially breached this Agreement if any safety and health standards or regulations have been breached by the Supplier.

b. Lockout/Tagout. In accordance with the Occupational Safety and Health Administration’s Lockout/Tagout standard (29 CFR 1910.147), Supplier(s) involved in operations related to equipment or machinery lockout that affect USES employees or the employees of Client must submit their energy control procedures to USES.   Supplier shall comply with Client’s Lockout/Tagout policy and procedures.  Supplier shall train affected employees of USES and Client prior to the time Supplier signs this Agreement. The cost of training will be the responsibility of Supplier.

c. Maintenance of Work.  Areas. Supplier shall keep all work areas clean and neat. All tools, equipment, machinery, and the like shall be removed upon completion of the work or work shift. Subject to the provisions above, Supplier shall keep Client physical plant free from the accumulation or discharge of waste materials, whether hazardous or non-hazardous. Supplier shall routinely survey its work areas and adjacent space to identify and correct potentially hazardous situations relating to the work. Supplier shall provide sufficient barricades, ropes, signs, guards, and other things to warn and secure persons against danger in its work areas.

d. Access. USES through its contract with Client shall provide Supplier reasonable access to Client physical plant, which may be limited to times specified by Client in advance. Supplier shall not unnecessarily interfere with the normal operations of Client or others, and shall not unnecessarily obstruct or encumber the physical plant of Client.  USES shall at all times have access to the work site to inspect and approve the work performed by Supplier at Client physical plant.

e. Parking. If Client provides parking for Supplier personnel, Supplier personnel shall comply with all requirements and restrictions associated with such parking.  In the event Client does not provide parking Supplier shall arrange transportation to Client physical plant for Supplier personnel.

f. Personnel Identification. All Supplier personnel shall carry identification provided by Supplier that complies with the requirements of Client.  Supplier shall ensure Supplier personnel are properly equipped for performance of Supplier’s scope of work, including without limitation as may be appropriate FR clothing, hearing and eye protection and safety boots.

g. Miscellaneous Safety Policies. Supplier’s personnel shall comply at all times with the applicable sign in/sign out procedures at the Client physical plant. Supplier shall not de-energize or energize any energy source (electrical or mechanical), interfere with any utility service (electricity, water, gas, steam etc.), or interfere with any fire protection system, without the prior consent of USES. Supplier shall not cause or produce any unusual, noxious or objectionable smokes, gasses, vapors or odors; overload any floor, ceiling, wall or fixture; remove, replace or install any locks; commit any nuisance or trespass; interfere with the effectiveness or accessibility of mechanical or electrical systems other than such as is unavoidable in the performance of Supplier’s duties hereunder. Supplier personnel shall comply with Client’s smoking policy.

8.HAZARDOUS MATERIALS PRECAUTIONS.

a. Environmental laws. Supplier shall comply with and conform to all requirements of applicable environmental Laws, including but not limited to the Clean Water Act and the Spill Prevention Control and Countermeasure (“SPCC”) regulations (40 CFR 112.1-112.7). Prior to signing this Agreement, Supplier must submit to USES and obtain USES written approval of the following:

i. a list of all hazardous materials to be used by Supplier as defined by the Occupational Safety and Health Act of 1970 and relevant regulations thereunder including but not limited to the Hazard Communication Standard (29 CFR 1910.1200);

ii. a Safety Data Sheet (SDS) for each hazardous material listed;

iii. the proposed location of all hazardous materials to be stored at the physical plant of Client;

iv. a description of the containment provided and other measures to be taken to prevent releases to the environment; and

v. the plan for disposal of hazardous or contaminated waste used in the process of performing the work, including but not limited to solvents, degreasers, contaminated solids, batteries, capacitors, Freon, filters, asbestos, fuels, PCB’s, pesticides, acids, caustics, sealants, adhesives, paints, strippers, and petroleum based liquids.  Disposal of the foregoing waste shall be the responsibility of Supplier as the generator of such waste in accordance with applicable Laws.

b. Asbestos. The parties shall share any knowledge they may have of any asbestos on or near the work sites, and Supplier shall use its best efforts to avoid disturbing or affecting any asbestos.  If any asbestos is anticipated to be disturbed or affected by Supplier, Supplier shall notify USES by telephone promptly confirmed in writing, as far in advance as possible (and Supplier shall give such notice immediately if asbestos is found). Supplier shall not proceed with any related work and shall not take any action relating to the asbestos without the prior written approval of USES Director of Environmental Health and Safety, which approval shall provide detailed instructions.  Supplier shall indemnify, release, hold USES harmless and defend USES in the event Supplier fails to conform to the foregoing.

c. Discharges. If Supplier discharges hazardous materials, as defined by applicable Laws, during its performance, Supplier shall notify USES immediately and shall take full responsibility for all necessary remedial action at Supplier’s sole expense and in compliance with the requirements of all applicable Laws and in the policies and procedures of USES. Without limitation of the foregoing, Supplier shall keep USES fully informed of any discharge and the remedial action being taken, and shall provide USES with such assurances as it may require concerning public safety and the environment.  Supplier shall indemnify, release, hold USES harmless and defend USES in the event of any discharge of hazardous materials by Supplier.

9.INSURANCE.

The Supplier shall at its own expense procure and maintain in full force during the term of the Agreement, the minimum insurance set forth below under “Required Minimum Insurance”. Supplier agrees and acknowledges that the Required Minimum Insurance shall; (a) be carried with responsible insurance companies rated A VIII or better by A.M. Best; (b) provide primary coverage and not call upon any other insurance procured by other parties for defense, payment or contribution; (c) waive insurer(s) subrogation rights against USES and Client; (d) name USES and Client as additional insureds, as provided for in ISO form CG 20 10 10 01 and CG 20 37 10 01 or their equivalent (ATIMA) on the required liability policies and Loss Payee status on any property insurance policies as applicable; (e) notwithstanding the minimum limits of coverage set forth in this Agreement, additional insured status shall be for the full limits of Supplier’s insurance coverage, including but not limited to, any excess insurance coverage purchased by the Supplier; (f) be provided on an occurrence rather than a claims made basis; however if any Required Minimum Insurance is available only on a claims-made basis, then the dates of coverage (including the retroactive date) and the time period within which any claim can be filed shall continue during the agreement term and for a period of three (3) years thereafter, and Supplier shall not permit any gaps in coverage to occur. Supplier shall comply with all warranties, declarations and conditions contained in each policy evidencing the Required Minimum Insurance. If Supplier fails to procure or maintain the Required Minimum Insurance, USES shall have the right, but not the obligation, to effect such insurance at Supplier’s expense; (i) with the exception of Supplier’s insurer(s) ten (10) day notice for non-payment of premium, Supplier (and/or its insurer representative) shall provide at least thirty (30) days prior written notice to USES upon any termination, non-renewal, cancellation, or material change in coverage or deductible amounts of the Required Minimum Insurance. Prior to commencement of services, Supplier shall provide USES with certificates of insurance and the required Additional Insured and/or Loss Payee endorsements made out by the applicable insurer(s) (or their authorized agents) evidencing the Required Minimum Insurance and any material policy amendments thereto (“Insurance Certificates”). Without limiting the foregoing, Supplier shall indemnify and hold USES harmless from and against all liability and loss in connection with Supplier’s failure to comply with the provisions of this Section. The Required Minimum Insurance in no manner relieves or releases Supplier, its agents, subcontractors, and invitees from, or limits their liability as to, any and all obligations assumed or risks indemnified against in this Agreement; and USES shall have the right, exercised by written notice to Supplier, to increase the limits required to be carried by Supplier hereunder, during the term of the Agreement, provided that any such increase shall be reasonable.  The obligations in respect of additional insured status and waiver of subrogation is limited to the extent of the liability obligations undertaken by Supplier and USES hereunder.

Required Minimum Insurance

1. Workers Compensation – providing statutory coverage
2. General Liability – $1,000,000 Bodily Injury and Property Damage Per Occurrence including coverage for;
   1. Premises / Operations
   2. Products

1. Automobile Liability

1. $1,000,000 Combined Single Limit Each Occurrence
2. Coverage for owned, hired & non-owned vehicles

1. Umbrella/Excess Liability – provided as follow form of the underlying

1. $5,000,000 Each Occurrence Excess of Underlying
2. $5,000,000 Products/Completed Operations Aggregate Excess of Underlying

10.INDEMNIFICATION.

Each party shall support the indemnity obligations voluntarily assumed hereunder with available liability insurance in the forms and in the amounts shown in Article 9 above.

11.CONFIDENTIALITY.

Supplier may obtain access to, develop or create commercially sensitive or non-public documents or information about employees, agents, partners or representatives of USES or Client, including without limitation, personal information, credit data or work product resulting from the services provided, proprietary and confidential information or material concerning or related to USES or the Client. Additionally USES or Client may disclose such information to Supplier.  Any such of the foregoing information is “Confidential Information.”  Supplier agrees and acknowledges that the Confidential Information is the sole, exclusive and valuable property of (a) the party that disclosed the Confidential Information or (b) if information was developed or created by Supplier it is the property of the entity to which the Confidential Information is pertinent. In either case the Confidential Information belongs to the “Disclosing Party.” Supplier shall maintain such Confidential Information as strictly confidential and agrees not to reproduce or divulge any of the Confidential Information without the  prior written consent of Disclosing Party and not to use the Confidential Information except in the performance of this Agreement, whether during or after the term of this Agreement. All Confidential Information shall remain the property of the Disclosing Party. Upon the request of the Disclosing Party, Supplier will return or destroy copies of Confidential Information in Supplier’s possession, except as is needed to comply with applicable Laws; Supplier will continue to be bound by this paragraph with respect to any retained Confidential Information. If the Confidential Information includes personal information as that term may be defined in the state in which Client’s physical plant is located, then Supplier must implement, maintain, and use appropriate administrative, technical and physical security measures to preserve the confidentiality, integrity and availability of all Confidential Information, be it electronic or hardcopy in compliance with applicable Laws.

12.INTELLECTUAL PROPERTY.

a. Supplier warrants that any goods furnished and any method of provision of services hereunder shall be free and clear of infringement of any valid patent, copyright, trademark, trade secret, or other proprietary right. Supplier shall indemnify and hold USES harmless from any and all liability and/or loss of any kind (and the costs and expenses, including without limitation attorney’s fees) arising out of any claim, suit or action alleging or arising out of any such infringement, which claim, suit or action Supplier agrees to compromise or defend at the request of USES.

b. All inventions, discoveries, developments and improvements made or conceived by the Supplier in the course of performing the Supplier’s scope of work (“Inventions”), whether such Inventions are patentable or not, shall become and remain the sole exclusive property of USES. All right, title, and interest in and to all data and all copyrights in all deliverables, writings, documents, reports, papers, tabulations, and other works written or made by Supplier in the course of performing the Services shall become and remain the sole exclusive property of UESES. The Supplier hereby transfers and assigns all of its right, title and interest in and to all such data and intellectual property to USES.

13.TERMINATION.

a. Termination for Convenience. USES reserves the right to terminate this Agreement, in whole or in part, with or without cause, upon written notice to Supplier.

b. Termination for Cause. USES reserves the right to terminate this Agreement, in whole or in part, immediately upon written notice to Supplier if a petition is filed by Supplier, or against Supplier with its consent, under any federal or state law concerning bankruptcy, reorganization, insolvency or relief from creditors, or if such a petition is filed against Supplier without its consent and is not dismissed within 60 days, or if Supplier becomes insolvent, or if Supplier consents to the appointment of a receiver, trustee, liquidator, custodian or the like of Supplier or of all or any substantial portion of its assets and such appointment or possession is not terminated within 60 days, or if Supplier makes an assignment for the benefit of creditors, or if Supplier refuses or fails, except in cases for which extension in time is provided, to supply enough properly skilled workman or proper materials, or if Supplier fails to make prompt payment to any subcontractor, or for materials, labor, or rental equipment; or disregards any applicable Laws or otherwise violates any provision of this Agreement.

c. Additional Rights and Remedies. In the event of termination of this Agreement, Supplier shall cease work, shall provide USES with a list of all unperformed services, and shall take such action relative thereto as Supplier may be directed by USES. In the event of termination of this Agreement by USES for cause, USES may finish the work at Supplier’s expense by whatever method USES may deem expedient, and USES shall have the right to take possession of all of Supplier’s materials, equipment, tools, and machinery at the work site for such purpose. Supplier shall not be entitled to receive payment for any such completion of work by USES. USES shall pay for work satisfactorily performed by Supplier, reserving the right to set off any payments due to USES under this or any other agreement with Supplier. USES shall have no further liability as a result of termination of this Agreement in accordance herewith. The rights and remedies of USES under this Section are not exclusive and are in addition to any other rights and remedies permitted by law or in equity.

14.TAXES.

Supplier shall pay all taxes, except (a) the corporate income tax placed on USES (b) the income tax placed on employees of USES and (c) as otherwise required by Laws.

15.INVOICE REQUIREMENTS

For invoices to be considered an “Acceptable Invoice”, they must be submitted within sixty (60) days of delivery of goods, completion of services or equipment rentals or Supplier waives its right to compensation. All Acceptable Invoices must reference a purchase order number, USES contact who placed the order, and a project number.  All Acceptable Invoices shall be directed to APcorp@usesgroup.com or:

Accounts Payable

15109 Heathrow Forest Parkway

Suite 150

Houston, TX 77032

16.PAYMENT.

USES shall make payment in the amount(s) specified in the purchase order within the later of 60 days after the receipt by USES of an Acceptable Invoice or 7 days after payment by USES’ customer (or relevant portion thereof if a milestone payment plan is agreed as evidenced in the purchase order). USES obligation of payment as set forth above is limited to the non-disputed portion of such Acceptable Invoices, however, USES shall have the right to withhold payment if Supplier fails to perform any of its contractual commitments. No interest shall be due on any amount unless agreed in writing by USES. No new charges shall be imposed and no price increases shall be made whatsoever with respect to any aspect of Supplier’s scope of work other than as agreed to in writing by both parties. Any performance and/or payment bond agreed to be provided by Supplier hereunder shall be (a) in such amount as may be agreed, (b) shall be written by a surety company that is authorized to do business in the state in which the physical plant of Client is located (c) is satisfactory to USES, (d) shall provide that the surety waives notice of and consent to changes in this Agreement even if such changes are deemed changes in the scope of work.  In all other respects such bond shall be in form and substance satisfactory to USES.

17.GOVERNING LAW AND VENUE.

This Agreement, and the interpretation, construction and enforceability hereof, and all rights and obligations of the parties, whether arising under this Agreement or otherwise, shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to its principles of conflict of laws. The sole and exclusive jurisdiction and venue for resolution of any disputes between the parties shall be in the state and federal courts located in Houston, TX and each of the parties hereby submits to, and waives objection to, the jurisdiction and venue of such courts.

18.MISCELLANEOUS.

a. Acceptance.  Any terms and conditions proposed by Supplier inconsistent with or in addition to these terms and conditions shall be void and of no effect unless USES specifically agrees to such terms and conditions in writing. In case of any conflict within this Agreement, including the Exhibits, or with any document referred to herein, the provisions most favorable to USES shall prevail.

b. Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between the parties. No oral agreement or understanding or prior written agreement or document relating to the subject matter of this Agreement shall be considered part of this Agreement, and the same shall be deemed superseded by this Agreement.

c. Amendment; Waiver. This Agreement may be amended only in writing by duly authorized representatives of the parties hereto. No waiver of any provision of this Agreement shall be effective unless given in writing signed by the party against whom the waiver is sought to be enforced. No failure to exercise, and no delay in exercising, any right, power, or privilege under this Agreement will operate as a waiver hereof, nor will any single or partial exercise of any right, power, or privilege under this Agreement preclude any further exercise of the same or any other right, power, or privilege hereunder.

d. Remedies Not Exclusive. The rights of both parties hereunder shall be in addition to their rights and remedies at law or in equity.

e. Severability. If any part of this Agreement shall be adjudged by a court of competent jurisdiction to be invalid in any circumstance, such invalidity shall not affect any other provisions or circumstances.

f. Survival of Benefits. The provisions of this Agreement, including without limitation those relating to indemnification and confidentiality, shall survive the expiration or termination of this Agreement to the extent necessary to provide the full benefit thereof consistent with applicable statutes of limitations.

g. Non-exclusivity. No part of this Agreement shall be construed as limiting either party from contracting with another person(s) or entity for the same or similar services covered by this Agreement.

h. Use of Names. Supplier shall not use any name, logo, or emblem of USES or Client in any brochure, publication, or advertisement without securing the prior written approval of USES