EFTA00314480.pdf

ACCEPTANCE The enclosed SourceOne Terms and Conditions are an integral part of this Proposal. A Contract between SourceOne, Inc. (DE) and 9 East 71st Street shall be effective as of the date the proposal is executed and delivered, issuance of a purchase order or other notice to proceed with reference to the Proposal, or permit for SourceOne to commence performance of any services in accordance with the Proposal. whichever first occurs. The enclosed SourceOne Terms and Conditions shall apply to the performance of services by SourceOne notwithstanding any preprinted terms or conditions contained in a purchase order that may be issued by 9 East 71st Street and shall control in the event of any conflict with any other portion of the Contract. Sou rccOne, Inc. (DE) 9 Eas,fjl.t Street Signature Sign Name Name CoAthz016, Title Title 121/0/20/0 Date Date SourceOne, Inc. I 112 Canal Street I Roston, MA 02114 I P NEW YORK EFTA00314480  SOURCEONE TERMS AND CONDITIONS The following Terms and Conditions (*Terms and ('Indemnified Party) against and from any and all actions. Conditions') are an integral part of the accompanying causes of action, claims, demands, costs. liabilities. proposal (*Proposal") to perform the services described expenses (including reasonable attorneys' fees and court therein (*Services') as submitted by SourceOne to the costs) and damages arising out of any and all third party customer named in the Proposal (*Customer"). A contract claims to the extent caused by the Indemnifying Party's between SourceOne and Customer for the performance of negligent or willful acts or omissions or any material breach the Services (*Agreement') shall be effective as of the by the Indemnifying Party of this Agreement. In connection earliest date that Customer executes and delivers the with any claim or action described in this paragraph. the Proposal, issues a purchase order or other notice to proceed Indemnified Party (i) will give the Indemnifying Party prompt to SourceOne with reference to the Proposal, or permits written notice of the claim. (u) will cooperate with the SourceOne to commence performance of any Services in Indemnifying Party (at the Indemnifying Party's expense) in accordance with the Proposal; provided, however, that these connection with the defense and settlement of the claim. (iii) Terms and Conditions shall apply to the performance of will permit the Indemnifying Party to control the defense and Services by SourceOne notwithstanding any preprinted terms settlement of the claim, provided that the Indemnifying Party or conditions contained in Customers purchase order. In the may not settle the claim without the Indemnified Party's prior event of any conflict between these Terms and Conditions written consent (which will not be unreasonably withheld) and any other portion of the Agreement, these Terms and unless the claim involves only the payment of money Conditions shall control. damages, and (iv) the Indemnified Party (at its cost) may participate in the defense and settlement of the claim. Payment Payment for Services shall be for the amount set forth on the invoice as provided by SourceOne, and due no Insurance. Until the first anniversary of the Completion Date later than thirty (30) days from receipt of invoice unless (as hereinafter defined). SourceOne shall maintain insurance otherwise specified. Customer shall reimburse SourceOne against liabilities caused by the Services as follows' Statutory for all expenses incurred in connection with the provision of limits required by applicable Workers' Compensation law; the Services pursuant to this Agreement if mutually agreed to Commercial General Liability -- $1,000,000 combined single in writing. SourceOne shall itemize and submit such limits per occurrence of bodily injury and property damage expenses to Customer from time to time, and Customer shall and $2,000,000 annual aggregate: Comprehensive Auto reimburse SourceOne within seven (7) days of such Liability — $1,000,000 per accident for Bodily Injury and submission. In the event Customer fails to timely or Property Damage Liability (Combined Single Limit); and completely pay any amount under this Agreement (i) such Professional Liability (Errors & Omissions) — $1.000.000 failure shall be a material breath: (ii) interest at the rate of each claim and per project aggregate. SourceOne shall one percent (1.0%) per month shall accrue on all past due cause Customer to be named as additional insured under the amounts until such amounts. including accrued interest. are Commercial General Liabikty and Comprehensive Auto paid in full; (iii) SourceOne shall have the right to immediately Liability policies required by this paragraph in respect of cease providing Customer with the Services: and. (iv) liability caused by the Services. SourceOne shall have the right to pursue all other legal and equitable remedies available to it. All fees set forth in this LIMITATION OF LIABILITY. IN NO EVENT SHALL Agreement are exclusive of all sales, use, value-added. SOURCEONE BE LIABLE TO CUSTOMER FOR excise, property, withholding, and other taxes and duties. CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL. Customer shall pay or promptly reimburse SourceOne for all RELIANCE, OR PUNITIVE DAMAGES, OR FOR LOST taxes and duties assessed by any authority in connection PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF with this Agreement. SUCH DAMAGES. OR FOR ANY CLAIM FIRST ASSERTED AFTER THE FIRST ANNIVERSARY OF THE COMPLETION LIMITED WARRANTY AND DISCLAIMER. Notwithstanding DATE (AS HEREINAFTER DEFINED). IN ANY EVENT. any other provision of the Agreement, until the first THE AGGREGATE LIABILITY OF SOURCEONE FOR ANY anniversary of the Completion Date (as hereinafter defined), LOSS OR DAMAGES OF ANY TYPE DIRECTLY OR SourceOne warrants that the Services shall have been INDIRECTLY SUFFERED BY CUSTOMER ARISING FROM performed in a professional manner consistent with the level THE SERVICES PERFORMED BY SOURCEONE OR ANY of care and skill ordinarily exercised by other providers of FAILURE, ACT. OMISSION OR BREACH OF THE such services performing under similar circumstances. AGREEMENT BY SOURCEONE SHALL NOT EXCEED THE Customer's sole remedy for any breach of such warranty AGGREGATE FEES PAID BY CUSTOMER TO shall be a refund of the portion of the fees paid to SourceOne SOURCEONE PURSUANT TO THE AGREEMENT. for the deficient Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, SOURCEONE HAS NOT Site Conditions. Customer shall provide a safe working AND SHALL NOT BE DEEMED TO HAVE MADE ANY environment for SourceOne personnel performing Services REPRESENTATION OR WARRANTY, EXPRESS OR at the site(s) referenced in the Proposal, including providing IMPUED, INCLUDING. WITHOUT LIMITATION, ALL reasonable notice of and training with respect to site-specific WARRANTIES OF MERCHANTABILITY OR FITNESS FOR environmental, health and safety policies and procedures. A PARTICULAR PURPOSE. Customer shall fully disclose to SourceOne information pertaining to any existing conditions at such site(s) or that Indemnification. Each party (indemnifying Party') shall may affect SourceOne's ability to perform the Services and indemnify, defend, and hold harmless the other party Page 1 of 2 Remit.," fit Tert3 S CalabOAS 1 1 (042a1DX1) EFTA00314481  SOURCEONE TERMS AND CONDITIONS shall be responsible for any additional costs attendant to each case to the parties at the respective addresses set forth such conditions. for them in the Proposal. Either party may change the address to which notice to it shall be addressed by giving Use of Drawngs, Specifications and Reports. Drawings. notice thereof to the other party in conformity with the specifications and reports prepared by SourceOne are foregoing. instruments of professional services to be used only in connection with the Services and are not suitable for any Governing Law. This Agreement shall be governed and other purpose. Customer shall indemnify, defend and hold interpreted in accordance with the laws of the State of harmless SourceOne against and from any and all actions, Delaware, without giving effect to any conflict or choice of law causes of action, claims, demands, costs, liabilities, provision that would result in the Imposition of the laws of expenses (including reasonable attorneys fees and court another jurisdiction. costs) and damages arising out of any reuse of drawings, specifications or reports without SourceOne's prior written DisouteS. In the event of a dispute between the parties authorization. arising out of this Agreement, the parties agree to attempt in 6?jc_ Publicity Source uStome -6Icno That good faith to resolve such dispute through discussions between their respective senior executives for a period not ceeding fifteen days and thereafter to submit to non- binding mediation. If such dispute cannot then be resolved A rne a s an through mediation, either party may file a lawsuit. The parties r eStOM consent to the exclusive jurisdiction of the federal and state courts of the State of Delaware in any action related to or kidevendent Contracto(. Customer acknowledges that arising out of the Agreement. Each of the parties hereby SourceOne is acting solely as an independent contractor and waives any right it may have to assert the doctrine of forum shall not have any authority to bind Customer as agent or in non conveniens or similar doctrine or to object to venue with any other capacity. respect to any proceeding brought in any jurisdiction specified in this paragraph, it being the intention of the Force Majeure. SourceOne shall be excused from delays in parties to preclude the possibility of litigation between them performing or from any failure to perform hereunder to the with respect to this Agreement in any jurisdiction other than extent that such delay or failure results from any one or more as specified in this paragraph. Each of the parties hereby of the following: acts of God, abnormal weather conditions or agrees to waive all its rights to a jury trial of any claim or natural catastrophes: strikes, lock-outs or other industrial cause of action related to or arising out of this Agreement. disturbances; acts of public enemies; war, whether or not The prevailing party in any such action shall be entitled to declared: sabotage: terrorist acts: riots: civil disturbances: recover its reasonable attorney's fees and other costs explosions: acts or omissions of governmental authonlies; incurred in such action, in addition to any other relief to which unavailability of or curtailment of fuel supplies; any such party may be entitled. interruption of electric or other utility service, or any change. interference, disruption or other defect in the sup* or Miscellaneous. If any provision of this Agreement should be character of the electric energy or other utility service utilized held invalid or unenforceable, the remainder of the by Customer, equipment failure arising from a manufacturing Agreement shall be enforced to the fullest extent permitted or design defect or the failure of the manufacturer or others by law. The Terms and Conditions snail survive the to timely implement necessary repairs or replacements; or termination of the Agreement in accordance with their terms any other cause or event not reasonably within the control of This Agreement represents the entire agreement between SourceOne. SourceOne and Customer with respect to the subject maser hereof, and supersedes any and all prior negotiations, Termination. Either party may terminate the Agreement prior proposals, purchase orders, representations or agreements to completion of the Services ("Completion Date') in the between them, whether written or oral. Paragraph heacfings event of a material breach of its terms by the other party, if in the Agreement we for convenience of reference only and such party fails to cure such breach within seven days after shall not be utilized in interpreting the Agreement. This notice from the other party of such breach. Agreement may be executed by the parties hereto In counterparts (including by facsimile transmission), each of Assionment. Neither party may assign any rights or which shall be deemed an original but all of which together obligations under this Agreement without the prior written shall be deemed one and the same instrument. This consent of the other, except to a third party pursuant to a Agreement may not be modified or amended except by a merger, sale of all or substantially all assets, or other writing signed by an officer of SourceOne and an officer of corporate reorganization. Customer. Notice. All notices and other communications given or made pursuant to the Agreement shall be deemed to have been duly given or made (a) upon delivery, if sent by hand or by prepaid ovemight courier service, with a record of receipt, or (b) the second business day after the date of mailing. if delivered by registered or certified mail, postage prepaid, in Page 2 of 2 Revel Si Terms /Corm:loons I i (0429i0x1) EFTA00314482 December 10, 2010 Attention: ConEdison - Customer Service Department Subject: 9 East 71" Street, NY NY 10021 Dear Customer Service Department: to, work NES LLC authorizes SOURCEONE to conduct business on their behalf, including, but not limited related to our accounts at ADDRESS including electrical, Steam and gas consumption and interconnections. If ou have an uestions, feel free to contact Richard Kahn at or . If you need to eak to a SOURCEONE representativ e, please contact Michael Byrnes at or e-mail him a Sincerely. Richard Kahn Cc: SOURCEONE, Michael Byrnes EFTA00314483 Ccpp!..1:Ern STATEMENT FOR ACCOUNT 7432000000, 09/01/2008 - 11/01/2010 End Roan rg At:huge:ens Usage (MAO Consumpbon Dabs) On Pk Davi An Tina PIE OW BillAstounl P8Pura Ba To Date Meter Number 52350 0.00 123.50 269.50 116.1312.63 87.323 10 10/27/2008 14888 11521 28974 0.00 146.00 14686 55504 0.00 137.63 302.65 $10,277.13 18,88283 11/25/2008 11521 30774 0.00 165 09 58834 0.00 14213 31923 $11,447.82 $10.277 13 12130/2008 14686 11521 32675 0.00 174.20 62100 0.00 142.15 311.81 512.112.07 $11,447.82 012072009 14686 11521 34529 0.00 16036 0.00 145.67 263.56 5399706 $1211207 0326/2009 11521 38117 14586 64802 0.00 11789 155.05 NO 40 59.938 08 10.997 06 03, 30/2009 11521 37812 0.00 14686 87874 0.00 134.44 0.00 116.64 258.30 59.293 57 59.938 08 04/29/2009 14656 70526 11521 39339 0.00 141.46 112.79 247.64 $8.428 57 59.293 57 05/2672009 14886 73104 0.00 11521 40805 0.00 134.85 262.77 57 709 52 5842857 06/29/2009 14688 75850 0.00 120.20 11521 42354 0.00 14257 107.02 231 60 58765.16 57.709 52 07/30)2009 14686 78303 0.00 11521 43712 0.00 124.57 101.26 216,80 $6,02548 56.765 16 08, 28/2009 14688 80612 0.00 11521 44965 0.00 115.54 000 100 98 216.96 36.351.95 $6.025.48 09/21112009 14686 82924 11521 46228 0.00 115.98 123.31 270.88 $7,304.81 56,351.95 10/28/2009 14688 85735 000 11521 47828 0.00 147.57 0.00 20.95 258.53 5-1.752.23 510084.29 11/25/2009 11521 48054 14688 91123 0.00 237.58 25.25 323 42 $164.09 $003 12/30/2009 11521 48337 0.00 EFTA00314484  Consumpocn (Keg) On Pk Dm0 NI Tame Pk DM BB Amen' NeseantS Be To Date Melee Nun10M 240 Rea0ng AO)usl/lents Usage (MOs) 323.42 3164 99 saw 14688 97859 000 297.17 1230/2009 273.78 510,345.10 30 00 01/2812010 74686 3632 0.00 251.60 71527 48579 0.00 22.18 262.79 119.962.25 18.75716 02/25/2010 11521 48579 0.00 0.00 14886 9665 0.00 262.79 000 214 19 St1.736 05 19.962 25 03/30/2010 71521 48579 0.00 14608 14267 0.00 274 10 100.62 220.65 58.508.16 58.736.05 04729/2010 14888 18230 0.00 11521 49228 0.00 5983 204.06 36.633.56 38.508.16 05/27/2010 11521 49264 0.00 3.33 14686 22797 0.00 200.73 1.20 197.96 36709.73 36.833 56 0609/2070 11521 49277 0.00 74686 27292 0.00 196.76 172.17 17217 $6.354.52 66/09.73 07/29/2010 14686 31221 0.00 71521 49277 0.00 0.00 172 00 38,401.62 16.3.54 52 06/27/2010 14668 36157 0.00 172.00 71527 49277 0.00 0.00 183.43 26.772.59 58.401 62 09/28/2010 71521 40281 0.00 0.37 14686 39339 0.00 183.06 205.05 57009.44 56.712.59 10(2712010 11521 49294 0.00 1.19 74686 44004 0.00 20305 EFTA00314485