ELEPHANT ENERGY SERVICES AGREEMENT
STANDARD TERMS
These Standard Terms apply to the Elephant Energy Services Agreement between Elephant Energy, Inc. and its clients. By agreeing to the Elephant Energy Services Agreement, clients are agreeing to these Standard Terms. Capitalized terms used in these Standard Terms and not otherwise defined have the meanings assigned to them in the Elephant Energy Services Agreement. These Standard Terms and the Elephant Energy Services Agreement are referred to herein collectively as, the “Agreement.”
- Payment Schedule. Payments shall be made according to the payment schedule set forth in the Proposal to the Agreement. Unless otherwise specified in the Proposal to the Agreement, payments shall be made within fifteen (15) days of receipt of an invoice from Elephant Energy. Late payments shall accrue interest at the lesser of twenty percent (20%) per annum or the maximum rate permitted by law. Elephant Energy may cease performance until outstanding payments are made. Upon execution of this Agreement Customer shall pay Elephant Energy the amount specified in the Proposal as an initial payment. This initial payment secures the services of Elephant Energy and is non-refundable on termination or otherwise.
- Final Payment. Upon substantial completion of the Services, Elephant Energy shall submit a final invoice for the balance of the compensation due and owing by Customer. Substantial completion shall be deemed to have occurred when the installed systems are operational even if permitting or other items remain outstanding. Payment of the final invoice shall be due upon receipt.
- Project Schedule. Elephant Energy shall endeavor to perform the Services in accordance with the schedule set forth in the Proposal to the Agreement, subject to adjustments for unforeseen events and conditions. The schedule set forth in the Proposal to the Agreement is provided as an estimate only.
- Change Orders. Customer may request changes to the Services by providing a written change order to Elephant Energy (a “Change Order”). Elephant Energy shall advise Customer in writing of the effect of the Change Order on the project cost and timeline before implementing any changes. No Change Order is effective until set forth in writing and signed by an authorized representative of each party. Elephant Energy may require a Change Order when unknown or concealed conditions require additional or different Services and may suspend performance of the Services until a Change Order is agreed upon.
- Alternative Equipment. Elephant Energy shall use commercially reasonable efforts to procure equipment of the type specified in the Proposal or requested by Customer; provided that where such equipment is unavailable or would be unreasonably difficult or expensive to obtain, Elephant Energy may substitute alternative equipment of a similar quality at its sole discretion.
- Customer Obligations.
- Access and Information. Customer shall provide Elephant Energy or its designees with timely access to the property where the Services are to be performed as required for Elephant Energy or its designees to perform the Services. Customer shall also provide all necessary and requested information related to the property and the Services promptly upon request by Elephant Energy or its designees.
- Cooperation. Customer shall cooperate fully with Elephant Energy and its designees and shall take all actions reasonably necessary to enable Elephant Energy or its designees to perform the Services in accordance with this Agreement. This includes timely decisions and approvals as may be necessary for the progress of the Services.
- Program Enrollment. Elephant Energy may monetize the Environmental Attributes and/or the carbon-reduction value of the systems installed as part of the Services including by enrolling Customer in demand response or similar programs. Customer authorizes Elephant Energy to do so and agrees to provide information related to such programs and enrollment as and when requested by Elephant Energy.
- Payment. Customer shall make all payments due under this Agreement in a timely manner as provided in the Proposal and in accordance with the terms of this Agreement.
- Compliance with Laws. Customer shall comply with all laws, rules, and regulations applicable to Customer’s obligations under this Agreement.
- Notice of Defects. If Customer becomes aware of any defect in the Services or non-compliance with this Agreement, Customer shall promptly give written notice to Elephant Energy.
- Delays. If Customer fails to fulfill any of its obligations under this Agreement, which results in a delay in Elephant Energy or its designees’ performance of the Services, any timelines or schedules set forth in this Agreement or any Exhibit hereto shall be automatically extended for a period to accommodate such delay. If any Customer-caused delay results in an increase in Elephant Energy’s cost of performing the Services, including without limitation, costs due to price increases for labor or materials, storage costs, or other related costs, Customer shall be responsible for such increased costs, which shall be added to the compensation due to Elephant Energy under this Agreement.
- Access and Information. Customer shall provide Elephant Energy or its designees with timely access to the property where the Services are to be performed as required for Elephant Energy or its designees to perform the Services. Customer shall also provide all necessary and requested information related to the property and the Services promptly upon request by Elephant Energy or its designees.
- Insurance. Elephant Energy shall maintain insurance coverage in accordance with industry standards and applicable law. Customer shall also maintain appropriate property and general liability insurance for the duration of the project.
- Indemnification. Subject to the limitations of liability set forth in the Agreement and to the fullest extent permitted by law, each party (the “Indemnifying Party”) agrees to indemnify and hold harmless the other party, its officers, directors, employees, managers, members, advisors, and agents (the “Indemnified Parties”) from and against all claims, losses, damages, liabilities, and expenses (including reasonable attorneys’ fees) that the Indemnified Parties may incur as a result of third party claims arising out of or resulting from the negligence, misconduct, or breach of this Agreement by the Indemnifying Party or its employees or agents. The Indemnifying Party’s obligations under this Section shall not apply to the extent that any claim, loss, damage, liability, or expense is found in a final non-appealable judgment by a court of competent jurisdiction to have been due to the negligence or willful misconduct of any of the Indemnified Parties. The Indemnified Party shall give the Indemnifying Party prompt written notice of any losses subject to indemnification or discovery of facts on which the Indemnified Party intends to base a request for indemnification. Each notice must contain a description of the third-party claim and the nature and amount of the related losses incurred. The Indemnified Party shall furnish copies of all papers and official documents received in respect of any losses. The Indemnifying Party shall promptly reimburse the Indemnified Party for such losses.
- Dispute Resolution. If a dispute arises out of this Agreement or the Services, the parties shall take the steps below.
- Negotiation. If a dispute arises, the parties shall work towards a resolution through good-faith negotiation. At minimum, good-faith negotiation shall consist of at least one (1) written correspondence from each party outlining the following material information about its position: an outline of the party’s position; an explanation of why the party’s position is reasonable; and what relief—monetary or otherwise—the party will accept to resolve the dispute.
- Litigation. If negotiation as described above is unsuccessful, either party may initiate a legal suit, action, or proceeding. Any legal suit, action, or proceeding arising out of or related to this Agreement shall be instituted exclusively in the state and federal courts of the United States located in the city and county of Denver and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The parties irrevocably and unconditionally waive any objection to venue of any suit, action, or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.
- Attorneys’ Fees. If either party institutes any legal suit, action, or proceeding against the other party arising out of or relating to this Agreement, the substantially prevailing arty in the suit, action, or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including actual attorneys’ fees and expenses and court costs.
- Exceptions. Elephant Energy may circumvent this Section to pursue compensation owed by Customer.
- Dispute Resolution. If a dispute arises out of this Agreement or the Services, the parties shall take the steps below.
- Liens. Customer acknowledges and agrees that Elephant Energy may have lien rights over Customer’s property under applicable state and local laws if Customer fails to make payment as required under this Agreement. In the event of non-payment or late payment by Customer, Elephant Energy may, at its discretion and in accordance with applicable laws, file a lien against Customer’s property. This lien may secure the amount of any unpaid invoices, including additional costs and interest. Customer agrees to provide, upon Elephant Energy’s request, any necessary documentation or information required for Elephant Energy to exercise its lien rights. If Elephant Energy places a lien on Customer’s property, Customer shall be responsible for all costs and expenses, including attorney’s fees, incurred by Elephant Energy in enforcing the lien.
- Term. The term of this Agreement commences as of the Effective Date and continues in effect until completion of the Services set forth in the Proposal unless earlier terminated in accordance with Section 11 or as otherwise provided in this Agreement.
- Termination.
- Termination for Cause. Either party may terminate this Agreement if the other party defaults in performing any of its material duties or obligations under this Agreement, and such default is not cured within thirty (30) days after receiving written notice from the non-defaulting party specifying the non-monetary default or not cured within ten (10) days after receiving written notice from the non-defaulting party specifying the monetary default.
- Termination for Convenience. Customer may terminate this Agreement for any reason upon providing Elephant Energy with a sixty (60) day written notice.
- Effect of Termination. Upon termination of this Agreement for any reason, Customer shall promptly pay Elephant Energy for all Services performed up to the date of termination, plus any direct expenses incurred by Elephant Energy as a result of such termination.
- Termination for Cause. Either party may terminate this Agreement if the other party defaults in performing any of its material duties or obligations under this Agreement, and such default is not cured within thirty (30) days after receiving written notice from the non-defaulting party specifying the non-monetary default or not cured within ten (10) days after receiving written notice from the non-defaulting party specifying the monetary default.
- Force Majeure. Neither party will be liable for any failure or delay in performing its obligations under this Agreement to the extent that this failure or delay is caused by a Force Majeure Event. A “Force Majeure Event” refers to any circumstance beyond the reasonable control of a party, including without limitation: acts of God; natural disasters; wars; civil unrest; terrorism; strikes; labor disputes; epidemics; pandemics; government actions; national or regional emergencies; or any other event which is beyond the reasonable control of the party affected. The party affected by the Force Majeure Event shall promptly notify the other party in writing and shall use commercially reasonable efforts to mitigate the effect of the Force Majeure Event and to fulfill its obligations under the Agreement. If a Force Majeure Event prevents, hinders, or delays Elephant Energy’s performance of its obligations for a continuous period of more than sixty (60) days, Customer may terminate this Agreement by giving thirty (30) days’ written notice to Elephant Energy.
- Relationship of the Parties. Elephant Energy is an independent contractor. Nothing in this Agreement shall be construed to create a partnership, joint venture, or employer-employee relationship between the parties. Neither party is the agent of the other, and neither party is authorized to make any representation, contract, or commitment on behalf of the other party.
- Subcontractors; Assignment. Elephant Energy may, at its discretion, use subcontractors to perform all or any portion of the Services under this Agreement. The Services set forth in this Agreement are personal to Customer and Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Elephant Energy.
- Marketing Use. Customer grants to Elephant Energy a non-exclusive, royalty-free license to use photographs, videos, and descriptions of the project, including before, during, and after photographs and videos, and any other materials resulting from the Services for Elephant Energy’s marketing and promotional purposes.
- Notices. Any notice or communication required or permitted under this Agreement shall be in writing and shall be deemed received when: (a) delivered personally; (b) sent by email, on the date of transmission; (c) three (3) business days after being sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) business day after being sent by a nationally recognized overnight courier service, addressed to the party to be notified at the address set forth on the signature page, or at such other address as such party may designate by written notice to the other party.
- Amendment; Waiver. This Agreement may be amended only by a written document signed by both parties. No waiver of any provision of this Agreement will constitute a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement will not operate as a waiver of such provision or any other provision.
- Severability. If any provision of this Agreement is found to be illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect.
- Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado, without regard to its conflict of laws principles.