Delivery of Balance of Facility; Installation of Bloom Systems. (a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Bloom System to achieve Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this Agreement, in accordance with the following (collectively, the “BOF Work”): (i) Seller shall perform and complete all BOF Work in accordance and consistent with the Performance Standards; (ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer, if Seller is an Affiliate of Buyer) that are necessary for interconnection to the PJM Grid and to comply with the PJM Agreements; (iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform the Seller’s work on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. Seller shall not be relieved from its obligation to provide the BOF Work if a subcontractor agrees to provide any or all of such BOF Work. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien against, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work; (iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new or refurbished (to the extent that use of refurbished items complies with the Guidance), and undamaged at the time of such use or installation; (v) Seller shall install, test, and cause the Commencement of Operations with respect to the Facility and each Bloom System as provided in Section 3.4; (vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors; (vii) Seller shall obtain and maintain, or cause to be obtained and maintained, all Permits necessary to design, install, and commission each Bloom System and to construct, occupy, and operate each Facility and each Site; and (viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens. The BOF Work shall not be considered complete until Seller shall have procured (A) the issuance of a certificate from the Independent Engineer addressed to Seller and Buyer, certifying without qualification, that the BOF Work has been completed and is available for commercial operation and (B) PJM’s, DPL’s and Buyer’s written acceptance thereof, as applicable. (b) Title and risk of loss to each component of such BOF Work for that Site shall pass to Buyer as of the Delivery Date of the first Bloom System at such Site. For the avoidance of doubt, the passage of title and risk of loss with respect to the Bloom Systems shall have passed to Buyer prior to any Bloom System being Placed in Service.
Appears in 6 contracts
Samples: Master Energy Server Purchase Agreement, Master Energy Server Purchase Agreement (Bloom Energy Corp), Master Energy Server Purchase Agreement (Bloom Energy Corp)
Delivery of Balance of Facility; Installation of Bloom Systems. (a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Bloom System Facility to achieve Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this AgreementAgreement and payments pursuant to Section 3.1(c), if any, in accordance with the following (collectively, the “BOF Work”):
(i) Seller shall be solely responsible for the means, methods, techniques, sequences, and procedures employed for execution and completion of the BOF Work, and shall perform and complete all BOF Work in accordance and consistent with the Performance Standards;
(ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer, if Seller is an Affiliate of Buyer) that are necessary for interconnection to the PJM Grid distribution and to comply with transmission facilities of the PJM AgreementsTransmitting Utility;
(iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Subject to Section 4.6, Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform the any of Seller’s work under this Agreement on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. Seller shall not be relieved from its obligation to provide the BOF Work any services hereunder if a subcontractor agrees to provide any or all of such BOF Workservices. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien againstagainst any Facility or Bloom System, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. To the extent that any PPA Customer has the right to request removal of any Seller or subcontractor personnel under a PPA or Site License, Seller shall cooperate with Buyer in complying with the terms and conditions of such PPA or Site License including by, upon written notification by Buyer that the performance, conduct or behavior of any Person employed by Seller or one of its subcontractors is unacceptable to the applicable PPA Customer, promptly stopping such Person from performing any obligations hereunder and/or removing such Person from the applicable Site. Additionally, Buyer may bring to Seller’s attention any concerns regarding the performance, conduct or behavior ofany Person employed by Seller or one of its subcontractors, which concerns Seller shall consider in good faith and thereafter take such action as Seller deems appropriate under the circumstances. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work;
(iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new or refurbished (to the extent that use of refurbished items complies with the Guidance)new, and undamaged at the time of such use or installation;
(v) Seller shall install, test, and cause the Commencement of Operations with respect to each Facility within ninety (90) days of the Facility and each Bloom System date of Seller’s Deposit Milestone Certificate as provided in Section 3.4;
(vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors;
(vii) Seller shall obtain and maintain, or cause to be obtained and maintainedmaintained (where required, in the name of Buyer or each PPA Customer, as the case may be), all Permits necessary to design, install, and commission each Bloom System and to commission, construct, occupy, and operate each Facility and at each Site; and;
(viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner manner, free from defective materials, and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens. The BOF Work shall not be considered complete until Seller shall have procured ; and
(Aix) If Seller, at any time during the issuance Warranty Term, becomes aware of a certificate from the Independent Engineer addressed to Seller and Buyerany potential material manufacturing or design defect in any Facility, certifying without qualification, that the BOF Work has been completed and is available for commercial operation and (B) PJM’s, DPL’s and Buyer’s written acceptance including any Component thereof, as applicableit will notify Buyer of the defect within a reasonable time, not to exceed five (5) Business Days after Seller first becomes aware of such defect.
(b) Title and risk of loss to each component of such BOF Work for that the Site which is not performed and provided on assets owned by a relevant PPA Customer or relevant Transmitting Utility shall pass to Buyer as upon the later of the Delivery Date of the first Bloom System at the Site and the date such component is installed as part of the Facility at the Site. For the avoidance of doubt, the passage of title and risk of loss with respect to the Bloom Systems each Facility shall have passed to Buyer prior to any Bloom System such Facility being Placed in Service. From and after the Commencement of Operations of the Facility of which particular BOF Work is a part, all risk of loss or damage to such BOF Work which is owned by Buyer shall be borne by Buyer.
(c) Without in any way limiting Seller’s obligations pursuant to this Section 3.3, Seller shall perform all design, permitting and installation work in accordance with the provisions of Schedule 3.3 attached hereto.
Appears in 3 contracts
Samples: Purchase, Use and Maintenance Agreement (Bloom Energy Corp), Purchase, Use and Maintenance Agreement (Bloom Energy Corp), Purchase, Use and Maintenance Agreement (Bloom Energy Corp)
Delivery of Balance of Facility; Installation of Bloom Systems. (a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Bloom System Facility to achieve Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this Agreement, in accordance with the following (collectively, the “BOF Work”):
(i) Seller shall perform and complete all BOF Work in accordance and consistent with the Performance Standards;
(ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer, if Seller is an Affiliate of Buyer) that are necessary for interconnection to the PJM Grid distribution and to comply with transmission facilities of the PJM AgreementsTransmitting Utility;
(iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over [***] Confidential Treatment Requested its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform the Seller’s work on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. Seller shall not be relieved from its obligation to provide the BOF Work if a subcontractor agrees to provide any or all of such BOF Work. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien againstagainst any Facility or Bloom System, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work;
(iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new or refurbished (to the extent that use of refurbished items complies with the Guidance)new, and undamaged at the time of such use or installation;
(v) Seller shall install, test, and cause the Commencement of Operations with respect to the each Facility and each Bloom System as provided in Section 3.4;
(vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors;
(vii) Seller shall obtain and maintain, or cause to be obtained and maintainedmaintained (where required, in the name of the Buyer or each PPA Customer, as the case may be), all Permits necessary to design, install, and commission each Bloom System and to commission, construct, occupy, and operate each Facility and each Site; and
(viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens. The BOF Work shall not be considered complete until Seller shall have procured (A) the issuance of a certificate from the Independent Engineer addressed to Seller and Buyer, certifying without qualification, that Engineer’s certificate in the BOF Work has been completed and is available for commercial operation and (B) PJM’s, DPL’s and Buyer’s written acceptance thereof, as applicableform of Exhibit F hereto.
(b) Title and risk of loss to each component of such BOF Work for that the Site which is not performed and provided on assets owned by a relevant PPA Customer or relevant Transmitting Utility shall pass to Buyer as upon the later of the Physical Delivery Date of the first Bloom System at the Site and the date such component is installed as part of the Facility at the Site. For the avoidance of doubt, the passage of title and risk of loss with respect to the Bloom Systems each Facility shall have passed to Buyer prior to any Bloom System such Facility being Placed in Service. From and after the Commencement of Operations of the Facility of which particular BOF Work is a part, all risk of loss or damage to such BOF Work which is owned by Buyer shall be borne by Buyer.
Appears in 2 contracts
Samples: Purchase, Use and Maintenance Agreement (Bloom Energy Corp), Purchase, Use and Maintenance Agreement (Bloom Energy Corp)
Delivery of Balance of Facility; Installation of Bloom Systems. (a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Bloom System Facility to achieve Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this Agreement, in accordance with the following (collectively, the “BOF Work”):
(i) Seller shall perform and complete all BOF Work in accordance and consistent with the Performance Standards;
(ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer, if Seller is an Affiliate of Buyer) that are necessary for interconnection to the PJM Grid distribution and to comply with transmission facilities of the PJM Agreements;Transmitting Utility; [***] Confidential Treatment Requested
(iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform the Seller’s work on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. Seller shall not be relieved from its obligation to provide the BOF Work if a subcontractor agrees to provide any or all of such BOF Work. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien againstagainst any Facility or Bloom System, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work;
(iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new or refurbished (to the extent that use of refurbished items complies with the Guidance)new, and undamaged at the time of such use or installation;
(v) Seller shall install, test, and cause the Commencement of Operations with respect to the each Facility and each Bloom System as provided in Section 3.4;
(vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors;
(vii) Seller shall obtain and maintain, or cause to be obtained and maintainedmaintained (where required, in the name of the Buyer or each PPA Customer, as the case may be), all Permits necessary to design, install, and commission each Bloom System and to commission, construct, occupy, and operate each Facility and at each Site; and
(viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens. The BOF Work shall not be considered complete until Seller shall have procured (A) the issuance of a certificate from the Independent Engineer addressed to Seller Engineer’s Commencement of Operations Certificate and Buyer, certifying without qualification, that the BOF Work has been completed and is available for commercial operation and (B) PJM’s, DPL’s and Buyer’s written acceptance thereof, as applicable“Commencement of Operations Certificate” required under the Credit Agreement.
(b) Title and risk of loss to each component of such BOF Work for that the Site which is not performed and provided on assets owned by a relevant PPA Customer or relevant Transmitting Utility shall pass to Buyer as upon the later of the Delivery Date of the first Bloom System at the Site and the date such component is installed as part of the Facility at the Site. For the avoidance of doubt, the passage of title and risk of loss with respect to the Bloom Systems each Facility shall have passed to Buyer prior to any Bloom System such Facility being Placed placed in Service. From and after the Commencement of Operations of the Facility of which particular BOF Work is a part, all risk of loss or damage to such BOF Work which is owned by Buyer shall be borne by Buyer.
Appears in 2 contracts
Samples: Purchase, Use and Maintenance Agreement (Bloom Energy Corp), Purchase, Use and Maintenance Agreement (Bloom Energy Corp)
Delivery of Balance of Facility; Installation of Bloom Systems. (a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Bloom System Facility to achieve Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this Agreement, in accordance with the following (collectively, the “BOF Work”):
(i) Seller shall perform and complete all BOF Work in accordance and consistent with the Performance Standards;
(ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer, if Seller is an Affiliate of Buyer) that are necessary for interconnection to the PJM Grid distribution and to comply with transmission facilities of the PJM AgreementsTransmitting Utility;
(iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform the Seller’s work on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. Seller shall not be relieved from its obligation to provide the BOF Work if a subcontractor agrees to provide any or all of such BOF Work. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien againstagainst any Facility or Bloom System, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work;
(iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new or refurbished (to the extent that use of refurbished items complies with the Guidance)new, and undamaged at the time of such use or installation;
(v) Seller shall install, test, and cause the Commencement of Operations with respect to the each Facility and each Bloom System as provided in Section 3.4;
(vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors;
(vii) Seller shall obtain and maintain, or cause to be obtained and maintainedmaintained (where required, in the name of the Buyer or each PPA Customer, as the case may be), all Permits necessary to design, install, and commission each Bloom System and to construct, occupy, and operate each Facility and each Site; and
(viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens. The BOF Work shall not be considered complete until Seller shall have procured (A) the issuance of a certificate from the Independent Engineer addressed to Seller and Buyer, certifying without qualification, that the BOF Work has been completed and is available for commercial operation and (B) PJM’s, DPL’s and Buyer’s written acceptance thereof, as applicableoperation.
(b) Title and risk of loss to each component of such BOF Work for that the Site which is not performed and provided on assets owned by a relevant PPA Customer or relevant Transmitting Utility shall pass to Buyer as upon the later of the Delivery Date of the first Bloom System at the Site and the date such component is installed as part of the Facility at the Site. For the avoidance of doubt, the passage of title and risk of loss with respect to the Bloom Systems shall have passed to Buyer prior to any Bloom System being Placed in Service. From and after the Commencement of Operations of the Facility of which particular BOF Work is a part, all risk of loss or damage to such BOF Work which is owned by Buyer shall be borne by Buyer.
Appears in 2 contracts
Samples: Master Energy Server Purchase and Services Agreement (Bloom Energy Corp), Master Energy Server Purchase and Services Agreement (Bloom Energy Corp)
Delivery of Balance of Facility; Installation of Bloom Systems. (a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Bloom System Facility to achieve Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this Agreement, in accordance with the following (collectively, the “BOF Work”):
(i) Seller shall perform and complete all BOF Work in accordance and consistent with the Performance Standards;
(ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer, if Seller is an Affiliate of Buyer) that are necessary for interconnection to the PJM Grid distribution and to comply with transmission facilities of the PJM AgreementsTransmitting Utility;
(iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform the Seller’s work on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. Seller shall not be relieved from its obligation to provide the BOF Work if a subcontractor agrees to provide any or all of such BOF Work. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien againstagainst any Facility or Bloom System, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work;
(iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new or refurbished (to the extent that use of refurbished items complies with the Guidance)new, and undamaged at the time of such use or installation;
(v) Seller shall install, test, and cause the Commencement of Operations with respect to the each Facility and each Bloom System as provided in Section 3.4;
(vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors;
(vii) Seller shall obtain and maintain, or cause to be obtained and maintainedmaintained (where required, in the name of the Buyer or each PPA Customer, as the case may be), all Permits necessary to design, install, and commission each Bloom System and to commission, construct, occupy, and operate each Facility and each Site; and
(viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens. The BOF Work shall not be considered complete until Seller shall have procured (A) the issuance of a certificate from the Independent Engineer addressed to Seller and Buyer, certifying without qualification, that Engineer’s certificate in the BOF Work has been completed and is available for commercial operation and (B) PJM’s, DPL’s and Buyer’s written acceptance thereof, as applicableform of Exhibit F hereto.
(b) Title and risk of loss to each component of such BOF Work for that the Site which is not performed and provided on assets owned by a relevant PPA Customer or relevant Transmitting Utility shall pass to Buyer as upon the later of the Physical Delivery Date of the first Bloom System at the Site and the date such component is installed as part of the Facility at the Site. For the avoidance of doubt, the passage of title and risk of loss with respect to the Bloom Systems each Facility shall have passed to Buyer prior to any Bloom System such Facility being Placed in Service. From and after the Commencement of Operations of the Facility of which particular BOF Work is a part, all risk of loss or damage to such BOF Work which is owned by Buyer shall be borne by Buyer.
Appears in 1 contract
Samples: Purchase, Use and Maintenance Agreement (Bloom Energy Corp)
Delivery of Balance of Facility; Installation of Bloom Systems. (a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Bloom System Facility to achieve Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this AgreementAgreement and payments pursuant to Section 3.1(c), if any, in accordance with the following (collectively, the “BOF Work”):
(i) Seller shall be solely responsible for the means, methods, techniques, sequences, and procedures employed for execution and completion of the BOF Work, and shall perform and complete all BOF Work in accordance and consistent with the Performance Standards;
(ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer, if Seller is an Affiliate of Buyer) that are necessary for interconnection to the PJM Grid distribution and to comply with transmission facilities of the PJM AgreementsTransmitting Utility;
(iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent Table of Contents contractor status. Subject to Section 4.6, Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform the any of Seller’s work under this Agreement on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. Seller shall not be relieved from its obligation to provide the BOF Work any services hereunder if a subcontractor agrees to provide any or all of such BOF Workservices. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien againstagainst any Facility or Bloom System, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. To the extent that any PPA Customer has the right to request removal of any Seller or subcontractor personnel under a PPA or Site License, Seller shall cooperate with Buyer in complying with the terms and conditions of such PPA or Site License including by, upon written notification by Buyer that the performance, conduct or behavior of any Person employed by Seller or one of its subcontractors is unacceptable to the applicable PPA Customer, promptly stopping such Person from performing any obligations hereunder and/or removing such Person from the applicable Site. Additionally, Buyer may bring to Seller’s attention any concerns regarding the performance, conduct or behavior of any Person employed by Seller or one of its subcontractors, which concerns Seller shall consider in good faith and thereafter take such action as Seller deems appropriate under the circumstances. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work;
(iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new or refurbished (to the extent that use of refurbished items complies with the Guidance)new, and undamaged at the time of such use or installation;
(v) Seller shall install, test, and cause the Commencement of Operations with respect to each Facility within ninety (90) days of the Facility and each Bloom System date of Seller’s Deposit Milestone Certificate as provided in Section 3.4;
(vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors;
(vii) Seller shall obtain and maintain, or cause to be obtained and maintainedmaintained (where required, in the name of Buyer or each PPA Customer, as the case may be), all Permits necessary to design, install, and commission each Bloom System and to commission, construct, occupy, and operate each Facility and at each Site; andTable of Contents
(viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner manner, free from defective materials, and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens. The BOF Work shall not be considered complete until Seller shall have procured ; and
(Aix) If Seller, at any time during the issuance Warranty Term, becomes aware of a certificate from the Independent Engineer addressed to Seller and Buyerany potential material manufacturing or design defect in any Facility, certifying without qualification, that the BOF Work has been completed and is available for commercial operation and (B) PJM’s, DPL’s and Buyer’s written acceptance including any Component thereof, as applicableit will notify Buyer of the defect within a reasonable time, not to exceed five (5) Business Days after Seller first becomes aware of such defect.
(b) Title and risk of loss to each component of such BOF Work for that the Site which is not performed and provided on assets owned by a relevant PPA Customer or relevant Transmitting Utility shall pass to Buyer as upon the later of the Delivery Date of the first Bloom System at the Site and the date such component is installed as part of the Facility at the Site. For the avoidance of doubt, the passage of title and risk of loss with respect to the Bloom Systems each Facility shall have passed to Buyer prior to any Bloom System such Facility being Placed in Service. From and after the Commencement of Operations of the Facility of which particular BOF Work is a part, all risk of loss or damage to such BOF Work which is owned by Buyer shall be borne by Buyer.
(c) Without in any way limiting Seller’s obligations pursuant to this Section 3.3, Seller shall perform all design, permitting and installation work in accordance with the provisions of Schedule 3.3 attached hereto.
Appears in 1 contract
Samples: Purchase, Use and Maintenance Agreement (Bloom Energy Corp)
Delivery of Balance of Facility; Installation of Bloom Systems. (a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Bloom System Facility to achieve Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this Agreement, in accordance with the following (collectively, the “BOF Work”):
(i) Seller shall perform and complete all BOF Work in accordance and consistent with the Performance Standards;
(ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer, if Seller is an Affiliate of Buyer) that are necessary for interconnection to the PJM Grid distribution and to comply with transmission facilities of the PJM AgreementsTransmitting Utility;
(iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform the Seller’s work on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. Seller shall not be relieved from its obligation to provide the BOF Work if a subcontractor agrees to provide any or all of such BOF Work. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien against, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work;
(iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new or refurbished (to the extent that use of refurbished items complies with the Guidance), and undamaged at the time of such use or installation;
(v) Seller shall install, test, and cause the Commencement of Operations with respect to the each Facility and each Bloom System as provided in Section 3.4;
(vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors;
(vii) Seller shall obtain and maintain, or cause to be obtained and maintainedmaintained (where required, in the name of the Buyer or each PPA Customer, as the case may be), all Permits necessary to design, install, and commission each Bloom System and to construct, occupy, and operate each Facility and each Site; and
(viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens. The BOF Work shall not be considered complete until Seller shall have procured (A) the issuance of a certificate from the Independent Engineer addressed to Seller and Buyer, certifying without qualification, that the BOF Work has been completed and is available for commercial operation and (B) PJM’s, DPL’s and Buyer’s written acceptance thereof, as applicableoperation.
(b) Title and risk of loss to each component of such BOF Work for that the Site which is not performed and provided on assets owned by a relevant PPA Customer or relevant Transmitting Utility shall pass to Buyer as upon the later of the Delivery Date of the first Bloom System at the Site and the date such component is installed as part of the Facility at the Site. For the avoidance of doubt, the passage of title and risk of loss with respect to the Bloom Systems shall have passed to Buyer prior to any Bloom System being Placed in Service. From and after the Commencement of Operations of the Facility of which particular BOF Work is a part, all risk of loss or damage to such BOF Work which is owned by Buyer shall be borne by Buyer.
Appears in 1 contract
Samples: Master Energy Server Purchase Agreement (Bloom Energy Corp)
Delivery of Balance of Facility; Installation of Bloom Systems. (a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Bloom System Facility to achieve Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this Agreement, in accordance with the following (collectively, the “BOF Work”):
(i) Seller shall perform and complete all BOF Work in accordance and consistent with the Performance Standards;
(ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer, if Seller is an Affiliate of Buyer) that are necessary for interconnection to the PJM Grid distribution and to comply with transmission facilities of the PJM AgreementsTransmitting Utility;
(iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform the Seller’s work on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. Seller shall not be relieved from its obligation to provide the BOF Work if a subcontractor agrees to provide any or all of such BOF Work. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien against, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work;
(iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new or refurbished (to the extent that use of refurbished items complies with the Guidance), and undamaged at the time of such use or installation;
(v) Seller shall install, test, and cause the Commencement of Operations with respect to the Facility and each Bloom System as provided in Section 3.4;
(vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors;
(vii) Seller shall obtain and maintain, or cause to be obtained and maintained, all Permits necessary to design, install, and commission each Bloom System and to construct, occupy, and operate each Facility and each Site; and
(viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens. The BOF Work shall not be considered complete until Seller shall have procured (A) the issuance of a certificate from the Independent Engineer addressed to Seller and Buyer, certifying without qualification, that the BOF Work has been completed and is available for commercial operation and (B) PJM’s, DPL’s and Buyer’s written acceptance thereof, as applicable.
(b) Title and risk of loss to each component of such BOF Work for that Site shall pass to Buyer as of the Delivery Date of the first Bloom System at such Site. For the avoidance of doubt, the passage of title and risk of loss with respect to the Bloom Systems shall have passed to Buyer prior to any Bloom System being Placed in Service.Permitted
Appears in 1 contract
Samples: Master Energy Server Purchase Agreement (Bloom Energy Corp)
Delivery of Balance of Facility; Installation of Bloom Systems. (a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Bloom System Facility to achieve Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this Agreement, in accordance with the following (collectively, the “BOF Work”):
(i) Seller shall perform and complete all BOF Work in accordance and consistent with the Performance Standards;
(ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer, if Seller is an Affiliate of Buyer) that are necessary for interconnection to the PJM Grid distribution and to comply with transmission facilities of the PJM AgreementsTransmitting Utility;
(iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform the Seller’s work on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. Seller shall not be relieved from its obligation to provide the BOF Work if a subcontractor agrees to provide any or all of such BOF Work. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien againstagainst any Facility or Bloom System, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work;
(iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new or refurbished (to the extent that use of refurbished items complies with the Guidance)new, and undamaged at the time of such use or installation;
(v) Seller shall install, test, and cause the Commencement of Operations with respect to the each Facility and each Bloom System as provided in Section 3.4;
(vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors;
(vii) Seller shall obtain and maintain, or cause to be obtained and maintainedmaintained (where required, in the name of the Buyer or each PPA Customer, as the case may be), all Permits necessary to design, install, and commission each Bloom System and to commission, construct, occupy, and operate each Facility and at each Site; and
(viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens. The BOF Work shall not be considered complete until Seller shall have procured (A) the issuance of a certificate from the Independent Engineer addressed to Seller Engineer’s Commencement of Operations Certificate and Buyer, certifying without qualification, that the BOF Work has been completed and is available for commercial operation and (B) PJM’s, DPL’s and Buyer’s written acceptance thereof, as applicable“Commencement of Operations Certificate” required under the Credit Agreement.
(b) Title and risk of loss to each component of such BOF Work for that the Site which is not performed and provided on assets owned by a relevant PPA Customer or relevant Transmitting Utility shall pass to Buyer as upon the later of the Delivery Date of the first Bloom System at the Site and the date such component is installed as part of the Facility at the Site. For the avoidance of doubt, the passage of title and risk of loss with respect to the Bloom Systems each Facility shall have passed to Buyer prior to any Bloom System such Facility being Placed placed in Service. From and after the Commencement of Operations of the Facility of which particular BOF Work is a part, all risk of loss or damage to such BOF Work which is owned by Buyer shall be borne by Buyer.
Appears in 1 contract
Delivery of Balance of Facility; Installation of Bloom Systems. (a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Bloom System Facility to achieve Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this AgreementAgreement and payments pursuant to Section 3.1(c), if any, in accordance with the following (collectively, the “BOF Work”):): 27
(i) Seller shall be solely responsible for the means, methods, techniques, sequences, and procedures employed for execution and completion of the BOF Work, and shall perform and complete all BOF Work in accordance and consistent with the Performance Standards;
; (ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer, if Seller is an Affiliate of Buyer) that are necessary for interconnection to the PJM Grid distribution and to comply with transmission facilities of the PJM Agreements;
Transmitting Utility; (iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Subject to Section 4.6, Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform the any of Seller’s work under this Agreement on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. B to the extent applicable to the work to be performed by such subcontractor. Seller shall not be relieved from its obligation to provide the BOF Work any services hereunder if a subcontractor agrees to provide any or all of such BOF Workservices. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien againstagainst any Facility or Bloom System, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. To the extent that any PPA Customer has the right to request removal of any Seller or subcontractor personnel under a PPA or Site License, Seller shall cooperate with Buyer in complying with the terms and conditions of such PPA or Site License including by, upon written notification by Buyer that the performance, conduct or behavior of any Person employed by Seller or one of its subcontractors is unacceptable to the applicable PPA Customer, promptly stopping such Person from performing any obligations hereunder and/or removing such Person from the applicable Site. Additionally, Buyer may bring to Seller’s attention any concerns regarding the performance, conduct or behavior of any Person employed by Seller or one of its subcontractors, which concerns Seller shall consider in good faith and thereafter take such action as Seller deems appropriate under the circumstances. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work;
(iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new or refurbished (to the extent that use of refurbished items complies with the Guidance), and undamaged at the time of such use or installation;
(v) Seller shall install, test, and cause the Commencement of Operations with respect to the Facility and each Bloom System as provided in Section 3.4;
(vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors;
(vii) Seller shall obtain and maintain, or cause to be obtained and maintained, all Permits necessary to design, install, and commission each Bloom System and to construct, occupy, and operate each Facility and each Site; and
(viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens. The BOF Work shall not be considered complete until Seller shall have procured (A) the issuance of a certificate from the Independent Engineer addressed to Seller and Buyer, certifying without qualification, that the BOF Work has been completed and is available for commercial operation and (B) PJM’s, DPL’s and Buyer’s written acceptance thereof, as applicable.
(b) Title and risk of loss to each component of such BOF Work for that Site shall pass to Buyer as of the Delivery Date of the first Bloom System at such Site. For the avoidance of doubt, the passage of title and risk of loss with respect to the Bloom Systems shall have passed to Buyer prior to any Bloom System being Placed in Service.28
Appears in 1 contract
