USA August, 2009

Transcription

1 August, 2009 The supplier/contractor agrees that the goods being purchased by or the services to be performed for Mosaic pursuant to this purchase order shall be exclusively governed by and the supplier/contractor agrees to comply with Mosaic s Terms and Conditions as stated in Form ( which was previously delivered to supplier/contractor. If you do not have a copy of Mosaic s Terms and Conditions on file, please contact your Mosaic representative immediately for another copy before accepting this purchase order. Mosaic purchases are made expressly conditional upon the acceptance of Mosaic s Terms and Conditions and will be modified only by a mutually executed amendment to such Terms and Conditions. Any terms which may exist on the Supplier's/Contractor's standard sales acknowledgements (or similar forms) and which may alter or are inconsistent with Mosaic s Terms and Conditions shall be of no legal force or effect and shall not govern the transaction contemplated by this purchase order. If there are questions on the commercial terms of this purchase order your company must notify Mosaic within 24 hours of receipt, otherwise we will presume our purchase order to be accepted. All suppliers/contractors are required to include this purchase order number on ALL communications (packing slips, etc). Supplier/Contractor: By: Date: Work Order #

2 August, 2009 PURCHASE ORDER TERMS AND CONDITIONS 1. Acceptance of this Purchase/Work Order ( Order ) is made expressly conditioned on Supplier s consent to the terms and conditions contained herein ( Agreement ). None of the terms and conditions in the Order may be modified, added to, or superseded, except with the written consent of [Mosaic Fertilizer, LLC] [Mosaic Crop Nutrition, LLC] ( Purchaser ). 2. Purchaser shall have the right to terminate the Order in whole or in part, upon thirty (30) days prior written notice to Supplier, and Supplier shall thereupon stop all performance under this Order except as otherwise directed by Purchaser. In the event Purchaser cancels this Order, Purchaser shall pay to Supplier: (a) the agreed unit prices for work completed; (b) the costs and expenses incurred by Supplier directly connected with work or services performed in addition to that in (a) above under the Order prior to the date of cancellation; (c) six percent (6%) of the costs and expenses referred to in (b) above in lieu of profit; and (d) such other direct costs and expenses, including cancellation charges under subcontracts, as Supplier may incur in connection with such cancellation; provided, however, that under no circumstances shall the total of such payments exceed the total Order price. If Purchaser decides to suspend the Order, Supplier shall be entitled to be compensated for any reasonable costs caused by the suspension. Supplier shall provide the Purchaser with evidence of such costs. If the suspension lasts for more than two (2) months, the Order shall be deemed to be terminated provided Purchaser and Supplier do not agree otherwise. In the event of default of Supplier, Purchaser shall be entitled to cancel the Order only if Supplier s default is of a material nature, provided Supplier has been given a reasonable time within which to cure the default, and provided such period has expired without the default being cured. In the event part of the delivery can be used by Purchaser, and Purchaser accepts partial delivery, Supplier shall be entitled to be paid for the partial delivery. If the parties cannot agree on the value of the partial delivery, the price shall be fixed by an arbitrator in accordance with Section 14 of the Order. In determining the price of the partial delivery, the arbitrator shall take into consideration Supplier s cost related to the partial delivery and the value of the partial delivery. In the event Purchaser does not accept any part of the delivery, Purchaser shall, at Supplier s cost, return any tangible and intangible goods already delivered to Supplier, and Supplier shall reimburse the purchase price received. 3. Supplier shall use its best efforts to meet delivery deadlines under the Order. Supplier will advise Purchaser immediately upon receipt of the Order if the specified delivery date cannot be met. Purchaser may designate any reasonable alternative delivery points, if necessary, to expedite Supplier s performance under the Order. 4. Supplier warrants that it will comply with all applicable federal and state laws, rules, regulations, codes and ordinances, including but limited to security and safety, in the performance of the Order. Supplier warrants that the goods and/or services supplied shall be of the highest grade and samples or other descriptions contained in the Order or furnished or specified by Supplier or Purchaser, shall be performed in a workmanlike manner; shall be fit and sufficient for the purpose intended; and shall be merchantable, of good material and workmanship and free from defect. Supplier further warrants that the goods furnished hereunder which are subject to the federal Occupational Safety and Health Act of 1970, as amended (the Act ), or a state equivalent of the Act, and the rules and regulations thereunder, will conform to all applicable standards and requirements set forth in the Act and the rules and regulations thereunder. These warranties are in addition to those implied by or available at law to Purchaser and shall exist notwithstanding the acceptance and/or inspection by Purchaser of all or part of the goods or services. 5. Supplier shall supply Purchaser with a Material Safety Data Sheet ( MSDS ) on any and all materials for which an MSDS is available, or if an MSDS is required by applicable federal, state or local laws, rules, and regulations, codes, ordinances or orders for any material, substance or chemical provided under the Order. 6. Except as may be provided in the Order, Supplier will assume any and all risk of loss and/or damage to any goods furnished hereunder until the goods are physically delivered to Purchaser s facility specified in the Order.. 7. Except as may be provided in the Order, Supplier shall pay all sales, consumer, use and other similar taxes and import duties required by law on the sale of the goods or services to be performed, and shall secure all permits, fees and licenses necessary for the execution of any services unless otherwise instructed by Purchaser in writing. Any cost incurred by Purchaser as a result of an error in shipment by Supplier; such as an over-shipment, or the shipment of the wrong goods, shall be reimbursed by Supplier. Should any fine, excise tax, countervailing, antidumping or other duty or surcharge be assessed against a shipment, Supplier shall be responsible for such fines, duties or charges, whether assessed against Supplier, Purchaser, or Purchaser s customer. All payments to be made 1

3 hereunder may be withheld by Purchaser on account of (1) delivery of defective goods or services not remedied, (2) claims made or filed, (3) unsatisfactory performance of services, (4) failure of Supplier to pay any subcontractors, or (5) any amounts owed by Supplier to Purchaser or its affiliates. The act of depositing or cashing any payment made by Purchaser shall constitute Supplier s release of any lien rights and any and all claims arising prior thereto which Supplier may have against Purchaser or Purchaser s inventory, equipment, or property for the goods supplied or services performed by Supplier for which payment was made. 8. Supplier agrees to defend, indemnify and hold harmless Purchaser, its officers, employees, agents, guests, invitees and customers from and against any and all liability, loss, damage, fine, penalty, cost or expense (including attorneys fees) by reason of any allegation, claim, action or suit, whether for death, bodily injury, property damage arising out of (1) the performance of this Order to the extent that such damage or injury is attributable to the negligence or willful misconduct of the Supplier; (2) failure of the goods or services supplied to meet specifications or warranties or for the goods or services to be otherwise defective; (3) any alleged or actual, direct or contributory infringement or misappropriation of any patent, copyright, trade secret or other proprietary right arising from the purchase, use, manufacture, or sale of such goods or services; (4) any leak or spill of any goods while being transported or delivered to Purchaser; or (5) any breach by omissions, or willful misconduct of Supplier s employees and subcontractors, including their agents and representatives, and all other persons performing any services under the Order with the Supplier, whether or not caused in part by a party indemnified hereunder. In the event that the goods or services, in Purchaser s reasonable opinion, are likely to infringe a patent or copyright, or misappropriate a trade secret (and in any event, if a court of law finds that the goods or services, in fact, do infringe or misappropriate), then Supplier shall further provide Purchaser one of the following forms of relief to be chosen by Supplier: (a) obtain a license on Purchaser s behalf to continue to use or sell the goods or services; (b) redesign the goods or services so that they do not infringe or misappropriate; or (c) refund Purchaser the price paid for the goods or services in question. In any and all claims against Purchaser by any employee of Supplier, any subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, the indemnification obligation under this Paragraph shall not be limited in any way by any indemnity or limitation on the amount or type of damages, compensation or benefits payable by or for Supplier, any subcontractor, or anyone directly or indirectly employed by any of them under worker s compensation acts, disability benefit acts, or other employee benefit acts. 9. Purchaser shall not be liable for any prevention or delay in performance resulting, in whole or in part, directly or indirectly, from fires, floods, or other acts of God, strikes, lockouts, or labor disputes, wars, riots, or embargoes, actions by foreign, federal, state or local governments, shortages of transportation equipment, fuel, or labor, or any other circumstance beyond Purchaser s reasonable control. 10. Supplier shall keep confidential all specifications and proprietary information furnished by Purchaser or prepared by Supplier in connection with the performance of the Order (including the existence and terms of the Order) and shall not divulge or use such specifications or information for the benefit of itself or any other party, except as required for the efficient performance of the Order. Upon completion of the Order, Supplier shall make no further use, either directly or indirectly, of any such specifications or information. 11. Purchaser shall have a reasonable time after delivery or performance within which to inspect the goods or services. Purchaser shall give written notice to Supplier of any rejection of such goods or services, and in the case of a rejected good, the same shall be returned to Supplier at Supplier s expense or otherwise disposed of as Supplier shall reasonably request. The cost of inspection of goods or services rightfully rejected shall be charged to Supplier. If reasonable inspection discloses that part of the goods or services received is defective or nonconforming, Purchaser shall have the right to cancel any unshipped goods or unperformed services under the Order. Payment for goods on the Order prior to inspection shall not constitute acceptance thereof and is without prejudice to any and all claims that Purchaser may have against Supplier. The making or failure to make any inspection of, or payment for, or acceptance of the goods or services, shall in no way impair Purchaser s right to reject nonconforming goods or services, recover damages, require Supplier to rework or repair of the goods in accordance with Section 4 hereof, or to exercise any other remedies to which Purchaser may be entitled. Acceptance of any goods or services by Purchaser after breach of the terms and conditions of the Order by Supplier shall not waive any rights or remedies accruing to Purchaser as a result of such prior breach. 12. In the event of Supplier s failure to perform any of its obligations hereunder, Purchaser may, at its option, recover from Supplier its expenses, cancellation fees, foreign exchange losses, the Order price less market value differential at the point of delivery, reasonable attorneys fees, and may exercise any and all right and remedies as may be available to Purchaser under the Uniform Commercial Code, common law or equity. Notwithstanding anything herein to the contrary, nothing in the Order shall be deemed to limit any rights Purchaser may have against Supplier either in law or equity. Provided however, that in no event shall either party be liable to the other for any indirect, punitive, special, incidental or consequential damages in connection with this Order, including but not limited to, loss of profits or interruption of production, loss of opportunity or business, or claims by customers of the Purchaser or Supplier for such damages, whether such liability is based in contract, tort (including negligence), statute or any other basis of legal liability 2

4 13. Where applicable, Supplier shall comply with the requirements of the Fair Labor Standards Acts of 1938, as amended, in producing the goods or performing the services hereunder. 14. Any controversy or claim arising out of, or relating to the Order or the breach thereof, shall be settled by arbitration in accordance with the commercial rules (or in case of construction services, the construction rules) then in effect of the American Arbitration Association, and judgment upon the award rendered may be entered in any court having jurisdiction thereof. Such award shall be final and binding and the arbitrator shall not be empowered to award punitive damages. 15. Supplier, provided it is not in default hereunder, may assign or transfer this Order in whole or in part with the written consent of Purchaser, which consent, may be withheld by Purchaser with or without cause or reasons. Notwithstanding any such assignment or transfer that is permitted or consented to by Purchaser, Supplier shall be jointly and severally liable with any such transferee or assignee under this Order and shall not be released from the performance of any of the terms, conditions, covenants or conditions of this Order except with the express written release of Purchaser. 16. The terms and conditions of this Order shall be governed by and construed in accordance with the laws of the State of Minnesota, where Purchaser s executive offices are located. 17. In the event Supplier/Contractor will perform services hereunder for the benefit of Purchaser ( Owner ), additional conditions Sections 18 through 53 set forth below shall also be applicable. In the event of a conflict or inconsistency between the terms above and those in Sections 18 through 53 below, those set forth in Sections 18 through 53 shall govern. 18. Contractor shall be solely responsible for all means, methods, techniques, sequences, and procedures and for coordinating all portions of the agreed upon scope of work or deliverables ( Work ). 19. Contractor warrants that the Work shall be performed in a professional and workmanlike manner to achieve its intended purpose, in accordance with highest industry standards and the standards and specifications specifically set out by Owner in an Order, if any. Any goods supplied in the performance of the Work shall conform to all specifications, drawings, samples or other descriptions in the Order, if any, shall be fit and sufficient for the intended purpose and shall be merchantable, of good material and workmanship and free from defect. These warranties are in addition to those implied by or available at law and shall continue notwithstanding any acceptance or inspection of the Work by Owner. Owner shall have the right, but not the obligation, at any time, to review the Work and to reject any Work not being performed or supplied according to the foregoing standards. Contractor shall report to Owner, on a regular basis, as requested by Owner, on the performance of the Work, including, but not limited to, prompt notice regarding any variance from the foregoing standards. 20. Unless otherwise specified in writing, Contractor shall provide and pay for all labor, materials, tools, equipment, machinery, transportation, and other facilities and services necessary for the proper execution and completion of the Work. 21. Unless otherwise specified in writing, Contractor shall pay all sales, consumer, use, other taxes, charges, duties and other levies imposed by law on the performance of the Work or the provisions of goods with respect thereto; and shall secure all permits, fees, licenses and other approvals necessary for the execution of the Work. 22. Contractor shall comply with all applicable foreign, federal, state and local laws, rules, regulations, codes, ordinances and orders bearing on the performance of the Work including without limitation those relating to the environment and employee health and safety. In addition, Contractor and any subcontractors and their respective employees, agents, representatives, guests and visitors shall comply with Owner s Contractor Safety Management Policy and Procedure and all of Owner's Facility safety rules and regulations which Owner may modify, change or alter from time to time. Contractor warrants that any and all materials furnished or used in the performance of the Work shall conform to all applicable standards and requirements set forth in such laws, rules, regulations, codes, ordinances and orders and that the use of any materials will not cause Contractor to be in violation of any federal or state or local laws, rules, regulations, codes, ordinances and orders and that the use by Owner of such materials will not cause Owner to be in violation of any of such laws, rules, regulations, codes, ordinances or orders. 23. It is agreed that Contractor is an independent contractor and not an employee, servant, or agent of, or joint venturer with, Owner, and has no authority to and will not purport to bind Owner to any contract, debt or obligation. All persons used or employed, directly or indirectly, by Contractor or any subcontractor in the performance of the Work (collectively, "Contractor Employees") shall be deemed to be employees or agents of Contractor and not employees or agents of Owner. Contractor shall have and exercise exclusive control and direction of Contractor Employees and Contractor shall and does warrant that all such persons shall be competent and experienced. Contractor assumes full responsibility for the compliance with and payment of all taxes, contributions, pensions, workers' compensation, social security, and all other obligations and benefits owed to or with respect to Contractor Employees. Except as 3

5 otherwise agreed by Owner in writing, Contractor shall be solely liable for all expenses incurred in the performance of the Work, and any expenses which Owner so agrees to reimburse must be evidenced by proper documentation. Contractor will not employ any subcontractor in the performance of the Work without the prior written permission of Owner. 24. Contractor shall obtain the following specified insurance which shall be maintained at all times throughout the term of this Order and shall be evidenced by certificates of insurance to be filed with Owner prior to the commencement of any Work and prior to any policy renewal during the term of this Order: Types of Insurance Workers' Compensation Employer's Liability Commercial General Liability, including Contractual Liability Automobile Liability Limits Statutory $2,000,000 each occurrence $2,000,000 combined single limits $2,000,000 combined single limits 25. Owner does not represent that the insurance or the limits of insurance set forth above are sufficient or adequate to protect Contractor's interests or liabilities and the required limits of coverage shall not be deemed to limit Contractor's liability. 26. Contractor agrees and its insurer shall agree that Contractor's policies will be primary without right of contribution from Owner or its insurance policies. Contractor further agrees and its insurer shall agree (i) to waive their rights of subrogation against Owner, and (ii) that the above insurance coverage s will not be invalidated for any Owner Indemnitee (as defined herein in Section 29) by any action, inaction or negligence of Contractor. All amounts of claims, losses, or damages resulting from deductible clauses or self-insured retention shall be the account of Contractor. 27. The certificates of Commercial General Liability and Automobile Liability insurance shall (i) name Owner Indemnitees as additional insureds, (ii) reflect the insurers consent to the requirements set forth in the Section 26 hereof, and (iii) shall provide that Owner shall be given not less than thirty (30) days' written notice before cancellation or any material change in the insurance. The insurance coverage shall be written by carriers satisfactory to Owner and shall remain in effect during the term of this Order. 28. Contractor shall, to the extent reasonably possible, obtain the liability insurance required hereunder on an occurrence basis rather than a claims-made basis. To the extent that Contractor must obtain some or all of this coverage on a claims-made basis, Contractor shall, prior to the commencement of the Work, provide Owner with satisfactory evidence that the retroactive date of the claims-made policy is prior to the date of commencement of any of the Work, and that the policy will either remain in force, be renewed, or a satisfactory discovery period will be purchased, to cover any claims which might arise hereunder in the future. 29. Contractor shall indemnify and hold harmless Owner, its affiliates and their respective officers, directors, employees, agents, representatives, guests and invitees ("Owner Indemnitees") from and against all claims, damages, losses, liabilities, fines, penalties, costs and expenses (including attorney's fees, consultant costs, environmental investigation, remedial or removal costs and natural resource damages) arising out of, relating to or resulting from (i) the performance of the Work; (ii) any breach of this Order by Contractor or any subcontractor; (iii) any alleged or actual, direct or contributory infringement or misappropriation of any patent, copyright, trade secret or other proprietary right arising from the Work including the purchase, use or sale of materials used therefor; (iv) any leak or spill of any goods while being transported or delivered to Owner or any other materials, substances or chemicals Contractor or any of its subcontractors bring onto Owner's premises; and/or (v) the acts, omissions, or willful misconduct of Contractor Employees. The Contractor s indemnification obligations under this Paragraph shall (a) apply regardless of any negligence or willful misconduct on the part of any Owner Indemnitee; and (b) not be limited in any way by the limits of any insurance coverage or limitation on the amount or type of damages, compensation or benefits payable by, for or to Contractor, any subcontractor, or any Contractor Employee under any insurance policy, workers' compensation acts, disability benefit acts, or other employee benefit acts. 30. Contractor and subcontractor shall perform the Work in a safe and secure manner. Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of this Order. In furtherance thereof, Contractor shall take every reasonable precaution for the safety of, and shall provide reasonable protection to prevent damage, injury or loss to (i) persons working on or about the Work (including Owner's employees) and other persons who may be affected thereby; (ii) the Work and the materials and equipment to be incorporated therein, whether in storage, on or off the site, and whether under the care, custody or control of the Contractor or the Contractor's subcontractors; and (iii) other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of the Work. 4

6 31. The Contractor shall erect and maintain, as required by existing conditions and performance of this Order, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. To the extent possible, Contractor shall physically separate the Work site from the remainder of the Owner's premises. Contractor agrees to periodically inspect the Work site (not less than once a day) for patent and latent defects. Contractor further agrees to explicitly warn and notify its employees, and other persons at, in or around the site (including Owner's employees and all guests, visitors, and invitees) of any risks, hazards or peculiar dangers associated with the Work site of which Owner has made Contractor aware, or of which Contractor is or should be reasonably aware. These responsibilities of Contractor shall continue throughout the term hereof and until this Order is fully performed by Contractor. 32. Contractor shall communicate to Contractor Employees, regularly enforce, and comply with (i) applicable laws, rules, regulations, codes, ordinances and orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss; and (ii) Owner's safety rules and regulations. 33. When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. 34. Contractor shall designate a responsible member of the Contractor's organization at the Work site whose duty shall be the prevention of accidents. This person shall be the "Contractor's Superintendent" unless otherwise designated by the Contractor in writing to the Owner. 35. Without prejudice to any other remedy Owner may have, violation of or failure to enforce applicable laws, rules, regulations, codes, ordinances and orders and all Facility safety rules and regulations is cause for (1) immediate removal of Contractor from the Facility and restrictions on future entry, and (2) immediate termination of this Order and any other Purchase Work Order involving Contractor with no further obligation or liability of Owner to Contractor. 36. Except as provided herein, the use of Owner's equipment, tools, scaffolding or other materials ("Owner Equipment") by Contractor is strictly prohibited. In the event the use of Owner Equipment by Contractor is necessary, Contractor agrees to inspect the Owner Equipment and agrees that it will not use same unless it is suitable for the intended use and conforms with any and all applicable laws, rules, regulations, codes, ordinances and orders. The determination of the suitability of use and conformity with applicable laws of Owner Equipment is to be made solely by Contractor, and Owner makes no representation as to the suitability of any Owner Equipment used by Contractor for any particular use. Contractor assumes full responsibility for the proper use of the Owner Equipment and shall return all Owner Equipment to the Owner in at least as good condition in which it was borrowed. The Contractor agrees to release, indemnify, and hold harmless Owner Indemnitees from and against any and all claims, damages, demands, liabilities, losses, fines, penalties, costs and expenses (including attorney fees) of whatsoever kind or character arising out of or in any way connected with Contractor s use of any Owner Equipment. 37. Contractor shall at all times retain title and ownership to any and all materials, substances or chemicals not incorporated into the Work that Contractor or any subcontractor brings onto the Facility. Contractor shall be solely responsible for the handling, transportation and disposal of any and all materials, substances and chemicals which Contractor or any subcontractor brings onto Facility, and any waste generated or resulting from the use thereof. Contractor shall not dispose or permit the release of any material, substance or chemical, or any waste generated or resulting from the use thereof on or at the Facility. Contractor shall handle, transport and dispose of any and all substances and chemicals, including, but not limited to, hazardous wastes and substances as defined by applicable federal, state and local laws, rules, regulations, codes and ordinances. 38. Contractor shall, at all times, supply a sufficient number of skilled workers to perform the Work covered by this Order with promptness and diligence. Should any Contractor Employees or other persons performing Work covered by this Order engage in a strike or other work stoppage or cease to work due to picketing or a labor dispute of any kind, Owner may, at its option and without prejudice to any other remedies it may have, after forty-eight (48) hours written notice to Contractor, provide any such labor and deduct the cost, thereof, from any monys then due or thereafter to become due to the Contractor. 39. Time is of the essence under this Order. No completion date or delivery date shall be amended except by written instrument signed by Owner. Final payment shall not be due until Contractor has delivered to Owner a complete release of all liens arising out of the Work or receipts in full covering all labor, materials, and equipment for which a lien could be filed. The amount to be paid for and the time period within which the Work is to be performed or any other change in the Work to be performed hereunder may be changed only by written Purchase Work Order, change directive, or change order signed by Owner's duly authorized representative. 40. Owner may, without restriction, hire other contractors to perform the same or different services at the Facility or any other Owner's facility concurrently with the term of this Order. 5

7 41. Owner shall have a reasonable time after performance of the Work to inspect the Work. The cost of inspection of any Work rightfully rejected shall be charged to Contractor. If reasonable inspection discloses that part of the Work is defective or nonconforming, Owner shall have the right to cancel any unperformed Work. Payment for any Work prior to inspection shall not constitute acceptance thereof and is without prejudice to any and all claims that Owner may have against Contractor. 42. Contractor agrees that any payments to be made to Contractor by Owner may be withheld by Owner on account of (i) defective Work not remedied, (ii) claims of Owner against Contractor or claims made or filed against Owner for which Contractor is liable, (iii) unsatisfactory performance, (iv) failure of Contractor to pay any subcontractors or Contractor Employees, or (v) any amounts owed by Contractor to Owner or its affiliates. The act by Contractor of depositing or cashing any payment made by Owner to Contractor shall constitute Contractor's release of any lien rights and any and all claims arising prior thereto which Contractor may have against Owner or Owner's inventory, equipment or property for the Work performed by Contractor for which payment was made. Contractor and Contractor Employees shall comply with the following policies: a. The solicitation of Owner employees or Contractor Employees during working time is prohibited. "Working time" excludes break periods, meal times, or other periods during the work day when Owner employees or Contractor Employees are not required to perform their work. b. Distribution of literature or other printed materials is always prohibited in working areas at the Facility. 43. Contractor shall comply with Owner's Drug and Alcohol policy. 44. Contractor shall comply with the requirements of the Fair Labor Standards Act of 1938, as amended, in performing the Work hereunder. 45. Without limiting the foregoing, Contractor shall maintain a work environment free of unlawful discrimination at the Facility. Harassment of any person by Contractor Employees at the Facility is a form of unlawful discrimination that violates this policy. "Harassment" includes, but is not limited to, harassment on the basis of race, color, religion, sex, national origin, age, disability, or sexual/affectional orientation. 46. This Order may be terminated: a. by Owner, at any time, with or without cause, upon thirty (30) days prior written notice to the Contractor. In the event of a termination pursuant to this Section 46(a), Owner shall not be liable for any damages or liabilities, including without limitation, field and home office overhead fees, lost profits on the unperformed work, or lost profits from subcontractors, suppliers, vendors, materialmen, or others. Owner's sole liability to Contractor shall be for the actual costs directly attributable to all Work performed up to the date of the termination. b. by Owner, immediately upon written notice, in the event Contractor: i. refuses or fails to supply enough properly skilled workers or proper materials, ii. fails to make payment to subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the subcontractors; iii. fails to comply, in all material respects, with laws, rules, regulations, codes, ordinances or orders or Owner's safety rules and regulations; iv. performs defective Work and fails to promptly and properly correct such defective Work; or v. otherwise fails to perform or comply with or is otherwise is guilty of a material breach of this Order. c. by either party, immediately, if the other party becomes insolvent, has a trustee or receiver appointed for any of its assets, makes an assignment for the benefit of creditors, or has a bankruptcy petition filed by or against it. d. by Owner upon forty-eight (48) hours written notice, should any workers performing Work covered by the Order engage in a strike or other work stoppage or cease to work due to picketing or a labor dispute of any kind. Owner also shall have the right to enter upon the premises and take possession for the purpose of completing the Work hereunder of all Contractor's materials, tools and equipment, thereon, and to finish the Work either with its own employees or other contractors. In such case, an appropriate change order shall be issued deducting from payments then and thereafter due to Contractor, the reasonable cost of completing the Work, including Owner's expenses. If payments then and thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the Owner. Owner shall have a lien upon all materials, tools and equipment taken possession of to secure the payment thereof. 6

8 47. Any provision of this Order which shall prove to be invalid, void, or illegal will in no way affect, impair, or invalidate any other provision hereof and such remaining provisions shall remain in full force and effect. The failure of either of the parties hereto to exercise any of its rights or remedies under this Order shall not operate as a waiver of any such right or remedy on later occasions. 48. This Order, and all disputes arising there under, shall be governed by the laws of the state where the Facility is located. 49. The execution of this Order shall supersede the terms and conditions of any existing General Conditions for Outside Contractors or Contractor General Conditions Order which Contractor may have executed for the Facility. 50. Any controversy or claim arising out of or relating to this Order, or the breach thereof, shall be settled by arbitration in accordance with the Construction Arbitration Rules of the American Arbitration Association now in effect. The demand for arbitration shall be filed, in writing, with the other party to this Order and with the American Arbitration Association within a reasonable time after the controversy or claim in question has arisen (and in no event shall it be made after the date when institution of legal or equitable proceedings based on such controversy or claims would be barred by the applicable statute of limitations), and any arbitration proceeding shall take place in the state where the Facility is located. The award rendered by the arbitrator(s) shall be final and binding, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. The arbitrators shall have no authority to award punitive or exemplary damages. Unless otherwise stated in the arbitral award, the losing party shall reimburse the prevailing party for the prevailing party's reasonable costs and expenses of mediation and arbitration. 51. Unless otherwise agreed in writing, the Contractor shall carry on the Work and maintain its progress during any mediation or arbitration proceedings between the parties. 52. Contractor shall keep confidential all specifications, technical information, business information, trade secrets and other proprietary information furnished by Owner or prepared or obtained by Contractor in connection with the performance of the Work (the "Confidential Information"). Contractor shall not divulge the Confidential Information in any manner and shall limit dissemination of the Confidential Information to only those Contractor Employees or subcontractors who need to receive it in order to efficiently perform the Work. Confidential Information shall be used only in connection with performance of Work under this Order. No other use of it will be made by Contractor, Contractor Employees, it being recognized that Owner has reserved all rights to the Confidential Information. Contractor shall require each of its Contractor Employees to abide by these confidentiality provisions even after the Contractor employee is no longer employed by Contractor. Upon completion of the Work, Contractor shall make no further use, either directly or indirectly, of any Confidential Information and shall return all written Confidential Information to Owner, including all items such as blueprints, drawings or other documents prepared in connection with the Work. Supplier/Contractor Name: By: Date: 7