Purchase Order Terms and Conditions

Flatiron Construction Inc. is a subsidiary of HOCHTIEF Aktiengesellschaft (“Hochtief AG”) and a construction company which operates in the United States and Canada. Supplier rents Equipment of the type that Flatiron and its affiliates, divisions, subsidiaries, and/or joint ventures utilizes to conduct business.

Now therefore, the parties hereto agree as follows:

A. Commercial Terms. Flatiron agrees to rent or purchase, via separate PO, and Supplier agrees to rent or sell such Goods and Services, in accordance with the terms of this Agreement and those rates established on the purchase order and project specific equipment agreement which are incorporated herein by this reference.

1. DEFINITIONS

1.1. “Equipment”. All tangible things that the Supplier rents to Flatiron and detailed in the Project Specific Equipment Agreement and purchase order.

1.2. “Equipment Agreement”. Flatiron document recognizing the order for the Goods and/or Services, description of the Goods and/or Services, including estimated rental term, rates, quantities, and serial numbers (if necessary).

1.3. “Goods”. Tangible things being rented including, but not limited to, the Equipment.

1.4. “Flatiron”. Defined as Flatiron Constructors, Inc., including any and all companies, current or in the future, that become an affiliate, division, subsidiary, and/or JV of Flatiron.

1.5. “Jobsite”. Defined as any location within the United States or Canada in which Flatiron does business, including corporate, affiliates, divisions, subsidiaries, and JV’s, including all of those Project sites.

1.6. “Market Area”. Geographical area in which Supplier will rent Equipment or sell Goods and Services to Flatiron.

1.7. “Owner”. Defined as the entity whom Flatiron contracts with to manage, construct, and/or design all or part of a Project. The term Owner may also include other contractors, construction managers, or subcontractors in those situations in which Flatiron contracts as a subcontractor at any level.

1.8. “Project”. Defined as any work that Flatiron takes on pursuant to a contract with an Owner.

1.9. “Rental Agreement”. Supplier document signed by Flatiron acknowledging delivery of the Goods to the Project.

1.10. “Services”. The provision of work, labor, effort, information, advice, coordination and like services in connection with the rental or sale of Equipment or other goods.

1.11. “Supplier” The entity identified above as the Supplier including all of their subsidiaries and agents.

2. PRICING AND ORDERING

2.1. All Flatiron and its affiliates, divisions, subsidiaries, and/or joint ventures, current or future, may procure Goods and/or Services, including the rental of materials and Equipment, from Supplier pursuant to the terms of this Agreement and have the same rights and remedies as if they are Flatiron under the Agreement. Upon acceptance of an order, Supplier shall provide conforming Equipment and/or materials to the location specified in the order, DDP (Delivery Duty Paid) specified location.

2.2. To the extent that Supplier has the capacity to receive and fulfill orders placed by electronic means or via an Internet ordering system, Supplier shall make such means/systems available to Flatiron and its affiliates, divisions, subsidiaries, and/or joint ventures.

2.3. Supplier agrees to acquire Goods, including Equipment, from other branches located within a reasonable distance from a Flatiron Project in order to meet Flatiron’s requirements. Unless Flatiron is given notice prior to delivery, Flatiron will not incur any additional cost when Goods, including Equipment, are delivered from a different Supplier branch.

2.4. This Agreement plus any Attachments, amendments, and referenced documents constitutes the entire contract between Flatiron and Supplier with respect to the subject matter described herein. There are no oral or written understandings, representations, or commitments of any kind, express or implied, which are not expressly set out herein. This Agreement supersedes any prior agreements between Flatiron and Supplier concerning the subject matter described herein. In that regard, while the parties may subsequently execute form documents of the other party entitled “Rental Agreement”, “purchase order” or such similar titles, those documents shall only serve to confirm the type of Goods ordered and the delivery and receipt of such, as the specific context requires. Any terms set forth therein which conflict with or are in addition to the terms of this Agreement are null and void and of no effect as between the parties. The terms and conditions of this Agreement shall control all rental and purchase of the Goods and Services between the parties and shall supersede and replace any and all other written terms and conditions found in such related documentation, whether or not such terms conflict with or are in addition to the terms set forth herein.

2.5. The currency of this MRA is US dollars. During Rental Term, Flatiron agrees to pay Supplier, rent payments as set forth in the Equipment Agreement.

2.6. Supplier is responsible for all sales and use taxes applicable to all payments, and shall only be responsible for personal property tax where it is applicable, and only for a prorated portion NOT longer than the Rental Term. Supplier is responsible for licensing, registration, and certification for the Equipment.

3. DELIVERY

3.1. For each standard order of Goods accepted by Supplier and acknowledged on the Equipment Agreement, Supplier shall use commercially reasonable efforts to deliver conforming Goods per the requirements on the Equipment Agreement or Purchase Order. Should Supplier receive an order for Goods that requires special shipping or handling, or performance pursuant to a specific schedule, Supplier shall coordinate such shipping, handling, and performance with Flatiron at the Project that placed the order. For all orders, Supplier shall confirm shipment/ performance in writing (or via electronic communication) to Flatiron.

3.2. All Goods that Flatiron rents pursuant to this Agreement shall be in good working condition upon delivery and shall conform to the manufacturer’s description and specification of such Goods. Goods that do not conform to the manufacturer’s description or specification shall be considered non-conforming. Supplier agrees to provide the Goods in best working condition from the local branch inventory.

3.3. Flatiron will have no obligation to pay rental charges for non-conforming Goods or for Goods that are not delivered to the Project in good working condition. Flatiron may elect to use the non-conforming Goods or require Supplier to pick up such non-conforming Goods. Flatiron shall be under no obligation to accept or pay for non-conforming Goods if not used.

3.4. Flatiron will inspect all Goods upon delivery. If Flatiron does not promptly advise Supplier that the Goods are non-conforming or not in good working condition, it shall be deemed that the Goods are in good working order and repair, and suitable for Flatiron. Supplier will provide training, if necessary, on all rented Goods prior to utilization.

3.5. Rented Goods will be returned to the branch from which it was rented by the agreed-upon return date, unless an alternate location is mutually agreed upon via written acknowledgement. Flatiron agrees that if the Goods are not returned, or made available for pick-up, by the end of the rental period, Flatiron shall continue to pay the rental rate applicable to the Goods outlined in the Equipment Agreement.

3.6. When delivering Goods to the Jobsite, Supplier agrees to comply with all jobsite safety requirements.

4. TERMINATION

4.1. Termination for Default

4.1.1. Should either party Default as defined in this Agreement, the non-Defaulting party may exercise any and all rights it has, including termination if allowed elsewhere in the Agreement.

4.1.2. Default

4.1.2.1. For purposes of this Agreement, a Default is defined as (1) becoming bankrupt or insolvent or taking any corporate action or other steps towards liquidation, winding up, dissolution; (2) making any bankruptcy administration order, or appointing a receiver, administrator, trustee or similar officer over all or any material part of the Defaulting entity’s revenues, assets or business; (3) if an order is made for the winding up, dissolution or liquidation, or any analogous or equivalent proceedings by whatever name are undertaken in whatever jurisdiction; (4) the Defaulting entity is generally unable to pay its debts as they become due or stops, suspends or threatens to stop or suspend payment of all or a material part of its debts or makes a general assignment of its assets for the benefit of its creditors; or (5) the Defaulting entity is in breach of any material obligation that it has under this Agreement and such breach demonstrates that the entity cannot fully perform the remainder of its obligations.

4.1.2.2. Should either Flatiron or Supplier Default as defined in Section 6.1.2.1, the non-Defaulting party may, by written notice, require the Defaulting party to either cure the Default or provide adequate assurance of the Defaulting party’s ability to fulfill its remaining contract obligations. Should the Defaulting party not cure the Default or provide the requested assurances within thirty (30) calendar days after such notice, the non-Defaulting party may terminate this Agreement.

4.2. Termination for Cause

4.2.1. If any party is in material breach of a term of the Agreement, upon notice from the other party describing the breach in reasonable detail, the breaching party will have thirty (30) calendar days to cure the breach. During said thirty (30) calendar day period, Supplier shall continue to fulfill all commercially reasonable requests from Customer at the unit rates established by this Agreement or subsequent purchase orders under this Agreement. If the breach remains uncured after the cure period, the parties agree to engage in the dispute escalation process described in the Remedies Section of this Agreement. If the breach remains uncured after the escalation process, the non-breaching party may, upon thirty (30) days’ written notice to the breaching party, terminate the applicable purchase order under which the breach occurred. Notwithstanding the foregoing, upon written notice, either party may terminate this Agreement immediately in the event the other party has materially breached its obligations under the Confidentiality Section of this Agreement.

5. INDEMNITY

5.1. Supplier agrees to indemnify, defend and hold Flatiron, including any and all companies, current or in the future, that become an affiliate, division, subsidiary, JV of Flatiron, and any Owner and their officers, directors, employees, and agents as defined herein (the “Indemnified Parties”) harmless from and against any and all claims including any and all liabilities, losses, damages, claims, penalties, fines and expenses, including attorneys’ fees for any damages to property and/or persons including death (“Claims”) arising from the Supplier’s provision of Goods and Services regardless of fault. Supplier’s obligation extends to any Claim, whether or not caused in part by the passive negligence or other fault (except active negligence) of an Indemnified Party hereunder. Supplier’s obligation extends to the acts or omissions of its subcontractors, suppliers, officers, agents, employees, or servants, and shall not be limited by the provisions of any Workers’ Compensation act or similar statute. As between Supplier and the Indemnified Parties only, Supplier expressly waives the protection of such acts or statutes. By signing this Agreement, Supplier acknowledges that the provisions of this Section have been expressly negotiated.

5.2. Notwithstanding Section 9.1 above, the Indemnified Parties shall have the right to be represented in such defense by counsel of its own choice at its own expense, and such election shall not in any way limit Supplier’s obligations under this Agreement. If Supplier fails to perform any of its obligations set forth in Section 9.1, including the diligent defense of any suit or proceeding arising hereunder, the Indemnified Party may, in its reasonable discretion, assume the defense of such suit or proceeding, or settle the claim which is the basis thereof, without the Supplier’s consent, but with prior notice to the Supplier, without relieving the Supplier of its obligation under Section 3.1. In such case, the Supplier shall reimburse the Indemnified Party for its costs and expenses related to such suit, proceeding or settlement, including court costs and reasonable attorneys’ fees.

6. WARRANTY

6.1. Supplier warrants that all Goods will be delivered in good operating condition. If Goods are not in good condition as a result of conditions that are not the responsibility of Flatiron or its agents, Supplier will replace the Goods immediately unless a longer time is agreed to by Flatiron.

6.2. Flatiron shall have no obligation to pay for non-conforming Goods and Services or for Goods that are not delivered to the Jobsite without damage.

6.3. Supplier warrants that it has good title to all Goods and Services rented and sold pursuant to this Agreement.

6.4. Supplier warrants all Goods sold under these terms for the length of time stipulated in the manufacturer’s standard warranty unless an alternative warranty was purchased via the Purchase Order.

6.5. Supplier warrants it will cause to be performed the Services in accordance with the current standards of care and diligence normally practiced by Suppliers performing services of a similar nature in the United States of America. If it is shown that there is an error or deficiency in the Services as a result of a failure of Supplier to meet those standards and Flatiron notifies Supplier of any such error or deficiency, Supplier shall promptly investigate and determine the cause of the error or deficiency, correct or cause to be corrected any such error or deficiency that resulted therefrom, and promptly replace or cause to be replaced all items associated with the error or deficiency.

6.6. Rentals: Supplier is responsible for repair costs to major components of the Goods not caused by the abuse, misuse, or neglect on the part of Flatiron. Major components of the Goods include, but are not limited to, engine, transmission, hoisting equipment, ring gear, main bearings, main drives, tires, tracks, structure, starters, alternators, and all items that normally last longer than the Anticipated Rental Period or Rental Term, whichever is longer.

6.7. Rentals: Should the Goods be down for repairs beyond a three (3) day period, rental charges shall cease until such time as repairs are complete, except those repairs brought about by Flatiron’s abuse, misuse, neglect or failure to comply with the operator’s manual provided by the manufacturer. Where repairs are brought about by Flatiron’s abuse, misuse or neglect, Supplier shall make said repairs in a reasonable period of time. Flatiron must obtain prior authorization before performing any repair on behalf of Supplier and shall be reimbursed by Supplier for such repairs, but only to the extent that repairs are performed to the reasonable satisfaction of Supplier.

7. INSURANCE

7.1. Supplier shall procure and maintain the following minimum insurance:

7.2. Commercial General Liability (“CGL”) including the following coverage extensions: (1) Contractual Liability, (2) Premises Operations, (3) Broad Form Property Damage, (4) Products Liability and (5) independent contractors (as applicable). The limits of liability for such insurance shall be not less than $1,000,000 each occurrence and $2,000,000 general aggregate. Terms and Conditions – Purchase Order

7.3. Automobile Liability (“AL”) of not less than $1,000,000 each accident, covering “any auto,” or covering all owned, non-owned and hired vehicles used in its operations. The policy must include the following coverage: (1) Broadened Pollution Liability Endorsement – CA9948

7.4. Workers Compensation (“WC”) at statutory limits as prescribed by applicable law where the work is being performed and Employers’ Liability in the minimum amount of $1,000,000 each accident, $1,000,000 disease-policy limit, and $1,000,000 disease-each employee. Seller will have attached to its policy an Alternate Employer endorsement naming Flatiron herein if Seller is leasing employees or is a PEO. W h e r e applicable, coverage must include Jones Act, and Outer Continental Shelf Lands coverage of not less than $2,000,000 each incident.

7.5. Certificates of insurance evidencing such coverage shall be delivered to Flatiron upon execution of the Agreement, and such other times as requested by Flatiron. Supplier shall cause its Commercial General Liability, Automobile Liability, and all excess/umbrella liability insurers to include as additional insureds Flatiron, the Owner, and any other party as may be specifically required, to the maximum limits of liability coverage carried by Supplier. Supplier shall cause its CGL, AL, and WC policy to contain a waiver of subrogation in favor of Flatiron, the Owner, and any other party as may be specifically required in the Purchase Order.

7.6. Supplier shall provide Flatiron thirty (30) days advance written notice in the event of policy cancellation. Supplier shall cause its subcontractors (when subcontracting is permitted by Flatiron) to procure and maintain the same insurance as outlined above. As applicable, Supplier shall obtain certificates of insurance from its subcontractors and deliver them to Flatiron. These insurance requirements shall support, but shall not limit, Suppliers’ duties, obligations, and liabilities under any other provision of this Agreement. Supplier’s insurance shall be regarded as primary insurance and non-contributory to insurance maintained by Flatiron and/or Owner.

8. LIMITATIONS OF LIABILITY

8.1. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, DAMAGES RESULTING FROM LOST PROFITS, REVENUE, OR USE WHETHER IN AN ACTION BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. Flatiron acknowledges and assumes all risks inherent in the operation, use, and possession of the Goods from the time the Goods are delivered to Flatiron until the Goods are returned to Supplier and will take necessary precautions to protect all persons and property from injury or damage from the Goods except to the extent the same is due to Supplier’s negligent acts and omissions.

9. OTHER PROVISIONS

9.1. ASSIGNMENT.

9.1.1. Neither party shall assign this Agreement, in whole or in part, or its performance under this Agreement without the express written consent of the other party.

9.2. COMPLIANCE.

9.2.1. All parties shall fully comply with all applicable local, state, and federal legal and regulatory requirements, ordinances, and public contracting requirements applicable to and affecting the manufacture, sale, shipment, and delivery of the goods identified in this Agreement, in addition to any subsequent purchase order or service agreement. Supplier shall obtain, at its own expense, all permits, licenses, tests and inspections necessary for Supplier’s performance of its obligations under this Agreement.

9.3. SUBLEASE.

9.3.1. For Rentals, Flatiron shall not sublease, sub rent, assign or loan the Goods without first obtaining the written consent of Supplier, and any such action by Flatiron, without Supplier’s written consent, shall be void.

9.4. THIRD-PARTY BENEFICIARIES.

9.4.1. This Agreement is for the sole and exclusive benefit of Flatiron and Supplier. Except for the Indemnified Parties under Section 7.1, this Agreement does not create any benefit in favor or any third parties.

9.5. APPLICABLE LAW.

9.5.1. This Agreement shall be governed by and construed in accordance with the laws of the state of Colorado, excluding its conflicts of law provisions.

9.6. INDEPENDENT CONTRACTOR

9.6.1. Supplier acknowledges that it is, and at all times shall remain, an independent contractor to Flatiron. Nothing in this Agreement shall create an association, joint venture, or partnership between Flatiron and Supplier or impose any partnership obligation or partnership liability on either party. Neither party shall have any right, power, or authority to enter into any agreement or commitment or act on behalf of or otherwise bind the other party without such party’s prior written consent.

9.7. CONFIDENTIALITY.

9.7.1. Unless either party has obtained the specific prior written consent of an authorized representative of the other party, neither party shall utilize the other’s name in any marketing, sales or advertising activities. Unless Supplier has obtained the specific prior written consent of an authorized representative of Flatiron, Supplier shall not release or disclose to anyone any information related to any project that may be known to Supplier, whether in written, oral, electronic, website-based or other form or obtained by Supplier during visits to any of Flatiron’s location or Jobsite, except when and to the extent those communications and disclosures are required for Supplier’s performance of its obligations under this Agreement, or when those communications or disclosures are strictly internal or are required on a confidential basis for legal, accounting or regulatory purposes.

9.7.2. Unless Supplier has obtained specific prior written consent from Flatiron, Supplier shall not release or disclose any information regarding this Agreement to any third party except to the extent necessary to perform their duties hereunder or as required by law.

9.7.3. The terms contained in this section shall survive any termination or expiration of this Agreement. Unless otherwise agreed to in writing, the parties’ duties to protect the confidential information shall expire three (3) years from the date of termination or expiration of this Agreement.

9.8. RESOLUTION.

9.8.1. The parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement promptly by negotiations between the representatives of the parties as defined further herein.

9.8.2. or any claims or disputes not resolved by the negotiation process as described above, the parties agree that any such disputes involving the parties’ rights and obligations under this Agreement shall be settled by binding arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. Any judgment upon the award rendered by the arbitrator(s) shall be final and may be entered in any court having jurisdiction.

9.9. SEVERABILITY.

9.9.1. If any provision of this MRA shall for any reason be held to be invalid, illegal or unenforceable in any respect, any such invalidity, illegality or unenforceability shall not affect any other provision of this MRA, and this MRA shall be construed as if such invalid, illegal or unenforceable provision had never been incorporated herein and the rights of the parties hereto shall be construed and enforced accordingly. Terms and Conditions – Purchase Order

10. SUCCESSORS AND ASSIGNS. These terms are binding upon the parties hereto, their heirs, executors, administrators and successors.

11. BUYER’S CODE OF CONDUCT. Buyer has a longstanding reputation for honesty and integrity in its business dealings and for its corporate policies promoting lawful and ethical behavior. Flatiron is committed to upholding that reputation and has adopted policies which govern the actions of all of its employees. Pursuant to those policies, Flatiron employees are prohibited from accepting bribes or kickbacks in any form and are further prohibited from accepting goods or services provided by a subcontractor, supplier, or vendor for the personal benefit of the employee, his or her relatives, or any entity in which the employee or his or her relatives has a personal interest. This prohibition includes, without limitation, work performed on an employee’s residence, and applies regardless of whether the beneficiary of the goods or services pays for them. Therefore, if Seller offers or provides a bribe or kickback to any employee of Flatiron, or offers or provides goods or services to any such employee, his or her relatives, or any entity in which the employee or his or her relatives has a financial interest, Seller will be considered to be in material breach of this Agreement. Seller undertakes the commitment to advise Flatiron of any action by any entity or person associated with the Project that Seller believes violates any applicable Laws. Seller’s violation of any of the foregoing shall be considered as Seller’s failure to perform its obligations under the terms and conditions of this Agreement. Such failure shall be considered adequate and justifiable grounds for Flatiron to enforce its rights and remedies under the termination provisions of this Agreement. The provisions of this section must be incorporated into any sub-agreement entered into by Seller in connection with the performance of the Work. Additionally, Flatiron, as a subsidiary of HOCHTIEF has adopted corporate practice policies applicable to this Agreement. Seller agrees to comply, and to cause its sub-vendors and subcontractors and employees to comply, with the HOCHTIEF Code of Conduct for Business Partners available at: https://www.hochtief.de/mmdbdownload?id=101013