1. Applicable Terms and Conditions.  The party requesting Services or Rental Equipment (“Client”) agrees and acknowledges that (a) these terms and conditions (“Terms”) apply to the provision of all services, which for the purposes of the Agreement, includes, without limitation, the provision of electricity, labor, and related equipment (“Services”) by, and the rental of all equipment without any labor or other services (“Rental Equipment”) from, CES Power, LLC (“Company”), and (b) the commercial terms in Company’s quote for the applicable Services or Rental Equipment (the “Quote”) shall apply to the provision of such Services and the rental of such Rental Equipment.  As used in these Terms, the “Agreement” means these Terms and the Quote, taken together, from and after the date Client accepts these Terms and the Quote.  Client will be deemed to have accepted these Terms and  the Quote upon the earliest to occur of (i) Client’s execution of the Quote, (ii) Client’s submittal of an order for the applicable Services or Rental Equipment, or (iii) Client’s authorization for Company to commence performance of the applicable Services or provision of the applicable Rental Equipment; except that, if Client does not accept these Terms and the Quote within 30 days of the date of the Quote, Company may revise the commercial terms in the Quote or terminate the Agreement without liability.  No additional or different terms or conditions, whether contained in Client’s order or in any other document or communication pertaining to Client’s order, will be binding on Company unless accepted in a writing referencing these Terms that is signed by an authorized representative of Company.  Company expressly objects to and rejects any additional or different terms and conditions, which shall be ineffective.  If Company’s Quote, order acknowledgement, invoice, other document, or electronic transmittal including or attaching these Terms is found to be an acceptance of an offer, acceptance is expressly made conditional upon Client's assent to these Terms and the Quote.  If the Quote, order acknowledgement, invoice, other document, or electronic transmittal including or attaching these Terms constitutes an offer, Client's acceptance of the offer is hereby limited to the terms of the offer as expressed in the Quote and these Terms. 
   

2. Price; Payment Terms.  Prices for Services and Rental Equipment will be the prices in Company’s Quote.  Prices are stated in United States dollars unless otherwise specially provided in the Quote.  Prices are exclusive of all duties, sales, use, excise or similar taxes (“Taxes”), and all costs for transportation, fuel, shipping, handling, shipping insurance, travel, lodging, and other related expenses incurred by Company in performance of the Services or provision of the Rental Equipment (“Expenses”), unless, in each case, charges for such items are specifically included in the Quote.  Company may include charges for Taxes and Expenses in Company’s invoice for the Services and Rental Equipment, and such charges will be due and payable on the date that all other amounts are due and payable under the applicable invoice.  Charges for Expenses may exceed Company’s actual costs for such Expenses.  If required by Company or applicable law, Client will pay Taxes directly to the applicable taxing authority. Payment is due in the currency invoiced and in accordance with the payment schedule included in the Quote, or if no payment schedule is included in the Quote, then upon commencement of performance of Services or delivery of Rental Equipment, as applicable. If Client fails to make all payments when due, Company may suspend further performance of Company’s obligations until all payments that are due are received.  Client agrees to pay interest on all past due invoices at the lesser of 12% per annum or the highest contractual rate allowable under applicable law.  Client will not withhold any undisputed amounts and will not set off any amounts against amounts owed by Client under the Agreement.  Except as provided in Section 3 with respect to deposits for Rental Equipment, amounts paid under the Agreement are not refundable.
   

3. Rental Equipment. Client shall exercise care in the use and operation of the Rental Equipment and shall use, operate and possess the Rental Equipment in accordance with all documentation provided with the Rental Equipment, in compliance with the manufacturer’s specifications for the Rental Equipment and all applicable laws, and in a safe manner.  Client shall ensure that all persons operating the Rental Equipment are properly trained, qualified, and if applicable, licensed to operate the Rental Equipment.  Client shall perform, at Client’s expense, routine preventative maintenance for the Rental Equipment in accordance with any preventative maintenance schedule provided by Company for such Rental Equipment and the manufacturer’s recommendations.  Except as provided in the previous sentence, Client shall not modify, alter, repair, or maintain any Rental Equipment without the Company’s written consent for the specific modification, alteration, repair, or maintenance.  Company shall retain title to Rental Equipment at all times.  Client shall not move, or allow the Rental Equipment to be moved, from the location named in the Quote for such Rental Equipment, and all Rental Equipment shall remain in Client’s care, custody, and control during the rental term included in the Quote and until returned to Company in accordance with the Agreement.  Upon the earlier of termination of the Agreement with respect to any Rental Equipment or the end of the rental term  set forth in the Quote with respect to any Rental Equipment, Client shall return such Rental Equipment to Company, in each case, in the same condition it was in when delivered to Client, normal wear and tear excepted. Company may, from time-to-time, file financing statements and any other documents evidencing Company’s interest in the Rental Equipment, and Client hereby consents to Company’s execution of the same.  Client shall at all times properly identify the Rental Equipment as property of Company and shall not remove any identifying marks on the Rental Equipment.  Company shall have access to the Rental Equipment at all reasonable times, and Client shall provide Company access to Client’s records relating to the Rental Equipment upon request.  Unless otherwise provided in the Quote, Company shall arrange for shipping of Rental Equipment to the location stated in the Quote and, at the end of the rental term, to Company’s facility.  If the Quote requires the Client to pay a deposit for Rental Equipment, the deposit is security for Client’s timely performance of all of its obligations and for payment of all of Client’s liabilities under the Agreement.  Company may, but is not obligated to, use the deposit to satisfy any of Client’s obligations and liabilities under the Agreement.  To the extent Company does not so use the deposit, Company will return the unused portion of the deposit to Client at the end of the rental term for the last Rental Equipment returned to Company pursuant to the Agreement.   
   

4. DISCLAIMER. Company may provide Client advice and information based on Company’s experience in the industry.  Client understands that this advice and information is not infallible and may be reliant on information provided by Client.  Client understands that Company does not make any representations or warranties related to any advice or information provided by Company.  All SERVICES AND RENTAL EQUIPMENT ARE PROVIDED AS-IS.  COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING ALL OR ANY PART OF ANY SERVICES OR RENTAL EQUIPMENT.  WITHOUT LIMITING THE FOREGOING, COMPANY EXPRESSLY DISCAIMS ALL WARRANTIES AND REPRESENTATIONS ARISING OUT OF THE AGREEMENT, THE SERVICES, OR THE RENTAL EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY RELATED TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTIBILITY, RELIABILITY, AND QUALITY.

5. LIMITATION OF LIABILITY.  IN NO EVENT WILL COMPANY BE LIABLE FOR ANY SPECIAL DAMAGES, CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, INCIDENTAL DAMAGES, STATUTORY DAMAGES, EXEMPLARY OR PUNITIVE DAMAGES, LOSS OF PROFITS, LOSS OF REVENUE, LIQUIDATED DAMAGES, OR LOSS OF USE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.  COMPANY’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES, THE RENTAL EQUIPMENT, AND THE AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID TO COMPANY FOR THE SERVICES OR RENTAL EQUIPMENT FROM WHICH THE CLAIM ARISES.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY WHETHER COMPANY’S LIABILITY ARISES OR RESULTS FROM BREACH OF CONTRACT, VIOLATION OF LAW, BREACH OF WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, GROSS NEGLIGENCE, OR INTENTIONAL CONDUCT), STRICT LIABILITY, BY OPERATION OF LAW, OR OTHERWISE.

6. Termination.  Company may terminate the Agreement, and may terminate its obligations to provide all or any part of the Services or the Rental Equipment, if Client breaches the payment obligations in the Agreement and does not cure such breach within three days following oral or written notification of such breach from Company to Client.  In addition, either Party may terminate the Agreement if the other Party materially breaches the Agreement and does not cure that breach within 15 days following notice of that breach from the non-breaching Party to the breaching Party. 

7. Force Majeure.  Company shall not be liable for any delay in or failure of performance under the Agreement arising out of any fire, flood, accident, riot, war, governmental interference, rationing, epidemic, quarantine restrictions, strikes, acts of God, acts of Client, interruption of transportation, interruption of supplies, equipment breakdown, or inability to obtain necessary labor, materials, or equipment, or any circumstances that are outside of Company’s control (each, a "Force Majeure Event").  Company may extend the time for performance by a period equal to the time lost because of any delays arising out of any Force Majeure Event.  Should Company be prevented from completing any part of the Services or providing any Rental Equipment because of any Force Majeure Event, then Client agrees to pay Company for any Services completed and Rental Equipment supplied under the Agreement.

8. Work Product.  "Work Product" means all designs, discoveries, creations, works, inventions, products, special tooling, procedures, improvements, developments, drawings, notes, documents, business processes, information and materials made, conceived or developed by Company alone or with others that result from or relate to the Services or Rental Equipment, including, without limitation, all engineering plans, work plans, and similar plans and documents produced by Company.  As between Client and Company, all Work Product shall be and remain the sole and exclusive property and confidential information of Company. Client hereby agrees to irrevocably assign and transfer to Company and does hereby assign and transfer to Company all of its worldwide right, title, and interest in and to the Work Product including all associated intellectual property rights. Client hereby waives any and all moral and other rights in any Work Product or any other intellectual property created, developed, or acquired in respect of Services or Rental Equipment.  Company will have the sole right to determine the treatment of any Work Product, including the right to keep it as trade secret, execute and file patent applications on it, to use and disclose it without prior patent application, to file registrations for copyright or trademark in its own name or to follow any other procedure that Company deems appropriate.  Client shall not disclose any Work Product to any third party and shall not use any Work Product except to the extent needed to use the Services or Rental Equipment provided by, and as contemplated in, the Quote, or as otherwise agreed by Company in writing.

9. Indemnity.  Client shall provide 24-hour security at the location at which Services will be performed and at which Rental Equipment will be used or stored by Client.  Client shall indemnify, defend and hold harmless Company from and against any and all claims, losses, liabilities, damages, costs and expenses (including attorney's fees) arising from or relating to any personal injury, death, or property damage arising out of Services, Client’s use or possession of the Rental Equipment, or that otherwise occurs while Rental Equipment is in Client’s care, custody, or control; provided, however, Client’s obligations for damage to or loss of any of Company’s equipment shall be limited to paying Company an amount equal to the replacement cost, new, for such damaged or lost equipment. 

10. Insurance. Client shall maintain, at its own expense, the following types of insurance with the following minimum limits: (i) Commercial General Liability (CGL) insurance on an occurrence basis with minimum limits of $2,000,000 per occurrence; (ii) Workers Compensation as required by law and Employers Liability with minimum limits of $1,000,000 each accident; (iii) Business Auto Liability coverage on an occurrence basis with a minimum combined single limit (CSL) of $1,000,000 per occurrence; and (iv) All-risk physical damage insurance coverage with respect to all Rental Equipment and all equipment used in performance of Services insuring against, among other things, casualty, including loss or damage due to fire and the risks normally included in extended coverage, malicious mischief and vandalism, for not less than the full replacement value of the equipment. Client shall deliver certificates of insurance in a form acceptable to Company which evidences that Client has the insurance required by this section and can comply with the required terms and conditions.  All Client insurance policies shall be primary in relation to any policies maintained by Company.  With respect to requirements (i) and (iii) above, Company shall be named as an additional insured to the extent of Client’s indemnification obligations under the Agreement.  With respect to requirement (iv), Company shall be named as sole loss payee with respect to all of Company’s equipment. With respect to all of the above insurance requirements, Client waives its insurers rights of recovery and of subrogation against Company.  Furthermore, the insurance requirements in this section do not limit Client’s liability (indemnity or otherwise) under the Agreement.  If Client breaches its obligations under this provision, in addition to any other remedies Company has, Company may procure all or some of the insurance required, and Client shall pay all amounts incurred by Company in connection therewith.  

11. Compliance with Laws.  Client understands that Company will use materials that contain benzene in performance of Services.  Client shall be responsible for compliance with all laws applicable to the Agreement, performance of the Services, and provision of the Rental Equipment.  Without limiting the foregoing, Client shall (a) provide, at its cost, all rights, licenses, permits, and other authorizations from governmental authorities that are required for Company to provide Services and Rental Equipment to Client as contemplated by the Agreement, (b) comply with the Americans with Disabilities Act and other similar laws applicable in the location at which Services are performed, (c) comply with all applicable important and export laws, and (d) comply with all requirements of laws that require warnings or disclosure related to the use of any materials or hazardous substances, such as Proposition 65 in California. Client shall provide all information requested by Company relating to compliance with any law.

12. Waiver.  No waiver of any provision of the Agreement (or any right or default hereunder) shall be effective unless in writing and signed by an authorized representative Company.  Any such waiver shall be effective only for the instance given and shall not operate as a waiver with respect to any other rights or obligations under the Agreement or applicable law in connection with any other instances or circumstances.

13. Language.  The parties have expressly required that these terms and conditions be prepared in the English language.  Les parties aux présentes ont expressément exigé que les présents termes et les bons de commandes émis aux termes des présentes soient rédigés en langue Anglaise.

14. Choice of Law and Dispute Resolution.  These Terms and the Agreement, and all disputes arising out of or relating to these Terms or the Agreement, including, without limitation, the breach, termination or validity thereof (collectively, “Disputes”), are governed by the laws of the State of Delaware without regard to its rules on conflicts of laws.  If Client is located in the United States, all Disputes shall be finally resolved by binding arbitration in accordance with the International Institute for Conflict Prevention and Resolution Rules for Non-Administered Arbitration by a sole arbitrator.  The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. If the Client is located outside of the United States, all Disputes shall be finally resolved by binding arbitration in accordance with the International Institute for Conflict Prevention and Resolution Rules for Administered Arbitration of International Disputes by a sole arbitrator. In any arbitration, whether Client is located in the United States or outside of the United States, the following provisions shall apply.  The seat of the arbitration shall be Houston, Texas.  The language of the arbitration shall be English. The prevailing party in any suit will be entitled to recover its reasonable and necessary attorney fees and other litigation costs. Without limiting the foregoing, any Party who fails or refuses to submit any dispute to binding arbitration following a lawful demand by the opposing Party shall bear all costs and expenses incurred by the opposing Party in compelling arbitration of such dispute.  All statutes of limitations that would otherwise be applicable shall apply to any arbitration proceeding.  Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods.
    
    

15. Assignment.  Company may assign or transfer the Agreement or any of its rights or obligation under the Agreement and may subcontract the performance of all or any part of the Services or the provision of all or any part of the Rental Agreement.  Client shall not assign or transfer the Agreement, or any of its rights or obligations under the Agreement, without Company’s written consent.  

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16. Entire Agreement.  The Agreement contains the entire agreement between Client and Company with respect to Services and Rental Equipment and supersedes all other written or oral agreements relating to Services or Rental Equipment.  The Agreement cannot be modified, and no modification will be effective, unless done so in a writing signed by Company and Client.  A waiver by a Party of any breach or default by the other Party is not a waiver of any other breach or default, and no course of dealings between the Parties will modify the Agreement.  In addition to the provisions that provide obligations that exceed the term of the Agreement, the provisions regarding warranty disclaimers, indemnification, insurance, limitations of liability, and dispute resolution survive the termination of the Agreement. ‍
    
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17. ‍Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, for any reason, the invalidity, illegality, or unenforceability of that provision will not affect any other provision of these Terms, but the invalid, illegal, or unenforceable provision will be substituted with a valid provision that most closely approximates the intent and the economic effect of the invalid, illegal, or unenforceable provision and that would be enforceable to the maximum extent permitted in the jurisdiction.