Sale Terms and Important Information

Duke Energy Florida, Inc. / Heritage Global Partners
Detailed Sale-Specific Terms & Conditions

TERMS OF SALE
Set forth below are the terms and conditions (the “Terms”) that shall apply to any purchase of any machinery, equipment, merchandise and other items (“Goods”) by any party (a “Buyer”) from Duke Energy Florida, Inc. (“DUKE ENERGY”), including any transaction in which Heritage Global Partners (“HGP”) serves as broker, agent, liquidator or auctioneer for DUKE ENERGY (a “Transaction”). The Terms apply to all Transactions, including without limitation, public auctions conducted by HGP on behalf of DUKE ENERGY, and any direct purchases by Buyer of any Goods either before, during, after, or independent of any public auction. By using or accessing any and all HGP services and or Websites or participating any auction of the Goods you agree that you have read and understand the terms and conditions stated herein and are bound to these Terms. You may not use or access any HGP services or purchase any Goods if you do not agree to the Terms and Conditions stated herein. If you do not understand any or all the Terms and Conditions herein please contact HGP via email at customerservice@hgpauction.com for further assistance.

TERMS AND CONDITIONS

1. No Warranty. All Goods are sold on an “AS IS/WHERE IS” basis without any warranties or representations, either expressed or implied. For the avoidance of doubt, HGP and DUKE ENERGY make no warranty that the goods (1) are free from defects in design, material, or workmanship (2) are suitable for the use intended by Buyer, (3) are free from radioactive contamination, (4) are free from asbestos containing material or lead paint, (5) are qualified under 10 CFR part 50 and Appendix B for use in any nuclear facility, or (6) will not infringe any trademark, trade secret, patent, copyright, service mark, mask work, or other proprietary or intellectual property right.  Any description of the Goods contained in any document relating to the purchase and sale of the Goods are for reference purposes only and is not to be construed as a warranty.  HGP and DUKE ENERGY specifically disclaim any warranty relating to condition of the Goods.  Neither HGP nor the DUKE ENERGY makes any warranties or representations of any kind or nature with respect to the Goods or their value and in no event shall either be responsible for correctness of description, genuineness, attribution, provenance, authenticity, authorship, completeness, condition of the Goods or estimate of their value. No statement (oral or written) in the catalog, at the auction, or elsewhere shall be deemed such a warranty or representation, or any assumption of responsibility. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY are expressly disclaimed.

2. Registration. Buyers must register prior to bidding at any auction sale and must be of legal capacity to enter AN agreement to purchase the Goods. All bidders must provide their name, company (if applicable), mailing address, phone number and email address prior to the auction. By registering, Buyer represents and warrants any and all Buyer information is accurate and complete. It is solely the Buyer’s responsibility to maintain current Buyer Information for completeness and accuracy. HGP reserves the right to deny and or terminate registrations at any time at its sole discretion without notification. HGP reserves the right to deny usage and access of HGP Services and Websites at any time without notice or liability to any persons or third parties. When applicable, electronic bidders are required to provide a valid Visa or MasterCard number. At its discretion, HGP may charge a registration fee for electronic bidding. This fee will be clearly displayed during the registration process. THE BIDDER AUTHORIZES HGP TO CHARGE LIQUIDATED DAMAGES TO THE CREDIT CARD LEFT ON FILE DURING THE REGISTRATION PROCESS. (See section 9 “Default” below.)

3. Deposits. HGP requires a deposit of not less than twenty five percent (25%) of the Buyer’s total purchase price by the end of sale day, with the balance due by the end of the next business day. This can be in the form of cash, a cashier’s check, or business check with a bank letter of guarantee. For electronic bidders, at its discretion, HGP may contact bidders via email or telephone before or during the sale to obtain a bank letter of guarantee or wire transfer as a deposit. If HGP does not receive a response from its attempts to contact Buyer or if the Buyer does not provide a deposit, HGP reserves the right to refuse or cancel Buyer’s bids.

4. Invoices & Payment Instructions. For Onsite and Webcast auctions, winning bidders may request a printed paper invoice from the Accounting Manager at the sale location during or after the sale. Electronic bidders will be sent an electronic invoice to the email address provided during registration. Detailed payment instructions for each sale are available in the printed lot catalog at the sale location on the day of the sale. Electronic bidders will be sent detailed payment instructions via email along with their invoice.

5. Payments. HGP must receive the balance of the total purchase price no later than the close of business on the day following the auction (the “Final Payment Date”). All payments must be in cash, cashier’s or certified check, federal wire transfer of immediately available funds or a corporate check accompanied with a bank letter of guarantee, and all of the foregoing must be in form, scope and substance acceptable to HGP. Credit cards are accepted for electronic bidding registration and for Liquidated Damages in the event of a Default. Without limiting HGP’s discretion, no corporate checks without a bank guarantee and no personal checks will be accepted. No title shall pass to Buyer until the total purchase price and all Taxes have been paid to HGP in collected funds.

6. Taxes. Buyer must also pay to HGP on or before the Final Payment Date, all sales, use and other taxes due to any federal, state or local taxing authority (the “Taxes”) as a result of Buyer’s purchase, including without limitation, any taxes arising from any Buyer’s Premium. To receive the benefit of any tax exemption, Buyer must supply HGP with a sales tax exemption certificate acceptable in form, scope and substance acceptable to HGP in HGP’S sole discretion.

7. Buyer’s Premium.  HGP shall charge a 16% Buyer’s Premium on all purchases.  Acceptable forms of payment are wire transfer, cashier’s check and company check with a bank letter of guarantee. 

8. Removal of Goods. (1) Buyers or their Agents must remove all Goods purchased before the final removal date and time announced by HGP at the auction (the “Removal Date”). (2) No Goods shall be removed until the full purchase price and all applicable taxes thereon have been received by HGP in the form required herein. ANY ITEMS NOT REMOVED ON OR BEFORE THE REMOVAL DATE SHALL BE DEEMED ABANDONED AND HGP and DUKE ENERGY SHALL HAVE NO FURTHER OBLIGATION TO BUYER WITH RESPECT TO SUCH ITEMS.

Whenever any personnel of Buyer or its Agents are given access to DUKE ENERGY property for any purpose, Buyer shall require such personnel to comply with any applicable rules, processes and procedures that apply.  Any such personnel may be removed from any DUKE ENERGY property at any time at HGP’s or DUKE ENERGY’s sole discretion.

Buyer shall be responsible for the safe and proper removal of any Goods purchased by Buyer. HGP and DUKE ENERGY are not responsible to pack, ship, store, crate or rig Goods for removal. Buyers may either pick up Goods at the designated auction site themselves or can contract with a third party agent to manage the removal process for them. Before Goods can be removed by an Agent, Agent must provide HGP with (1) proof of payment in full (Paid In Full Invoice) and (2) an “Agent Release Authorization” form which allows HGP to release items to a third party contractor for shipping, crating or packing purposes and (3) a copy of a conforming insurance certificate when required by  these Terms.  HGP and DUKE ENERGY may reject any Agent that it considers not to be properly qualified or if the Agent does not satisfy any security or insurance requirements of DUKE ENERGY. Buyer shall be responsible for the safe and complete dismantling and removal of the Goods from their physical location at the premises. All plans and schedules for any removal work must be approved in advance and in writing by DUKE ENERGY.

Goods weighing more than 100 pounds must be removed by a qualified, insured rigger. Before any removal, Buyer must provide HGP with a certificate of insurance from the rigger, which certificate must be in form, scope and content acceptable to HGP and DUKE ENERGY in their sole discretion. Without limiting HGP’S discretion, such certificate must show that the rigger satisfies all insurance requirements set forth in Exhibit A to these Terms. Without limiting the generality of the foregoing, Buyer shall restore and repair all real and personal property that is altered or damaged as a result of Buyer’s removal of the Goods. HGP and DUKE ENERGY shall have no responsibility to disconnect utilities to the Goods, including electric, gas, waste and water lines. Buyer is solely responsible to properly remove and store in appropriate containers all fluids, oils, hazardous chemicals, etc., from Goods purchased. To the maximum extent permitted by applicable law, Buyer does hereby indemnify HGP, DUKE ENERGY, and any other owner of the premises in which the Goods are located, from any and all claims, damages, and losses arising from Buyer’s actions or actions with respect to the Goods and Buyer’s presence on the premises in which the Goods are located, including without limitation, injuries to persons or property and environmental violations or contamination. Title and risk of loss to any Goods shall pass to the Buyer upon payment in full to HGP of all sums due from Buyer in respect to the Goods. Buyer shall be responsible to verify that it has received the correct Goods, both in kind and quality, before it leaves the premises.

HGP and DUKE ENERGY shall have no responsibility whatsoever for any missing or lost items that can be removed by hand if such items have not been removed within forty-eight (48) hours of the conclusion of the sale.
There will be NO removal of any lots until the auction is complete.

9. Defaults. Bidders must bid only on those items they are prepared to pay for and remove in accordance with these Terms. All items awarded to high bidders are contractually theirs and must be paid for by the Final Payment Date and removed by the Final Removal Date. IN THE EVENT PURCHASER FAILS TO PERFORM CONTRACTUAL OBLIGATIONS (PAYMENT AND REMOVAL) AS SPECIFIED IN THESE TERMS AND CONDITIONS, THE FOLLOWING ACTION APPLIES: PURCHASER WILL AUTOMATICALLY BE PLACED IN DEFAULT. THIS IS YOUR OFFICIAL NOTICE OF DUKE ENERGYAULT. Upon Default, the purchaser shall lose all right, title, and interest which he/she might otherwise have acquired in and to such property as to which Default has occurred. HGP will re-market and re-sell this property.

Failure to pay invoices in full by the Final Payment Date in accordance with payment terms will subject Bidder to pay as Liquidated Damages a sum equal to the lesser of (1) 20 percent of the invoice price of the item(s) as to which the Default has occurred, or (2) the full amount of the difference between the original invoice price and the re-sold price plus any expenses incurred to re-market or re-sell these items. IF HGP HAS NOT RECEIVED PAYMENT FOR WINNING BIDS WITHIN 24 HOURS OF THE FINAL PAYMENT DATE, THE BIDDER AUTHORIZES HGP TO CHARGE LIQUIDATED DAMAGES TO THE CREDIT CARD LEFT ON FILE DURING THE REGISTRATION PROCESS.

Failure to remove items by the Final Removal Date in accordance with removal terms will subject Buyer to pay as Liquidated Damages the full amount of the expenses incurred to store or transport items until they are re-sold. IF BUYER HAS NOT REMOVED ITEMS WITHIN 24 HOURS OF THE FINAL REMOVAL DATE, THE BIDDER AUTHORIZES HGP TO CHARGE LIQUIDATED DAMAGES TO THE CREDIT CARD LEFT ON FILE DURING THE REGISTRATION PROCESS.

10. Adjustments. After Buyer has removed any Goods from the premises, HGP and DUKE ENERGY shall have no obligation to make any adjustment or accommodation to Buyer because of any mistake in quantity or other defect or problem with respect to such Goods. Buyer must make all requests for adjustments in writing to HGP before any Goods are removed from the premises.

11. Damages. HGP and DUKE ENERGY shall not be responsible for any damages, loss or theft of Goods except in the case of HGP’s or DUKE ENERGY’s willful misconduct.

12. Changes. HGP reserves the right to withdraw or sell any Goods contained in an auction prior to or proceeding the stated auction period without notification. HGP reserves the right to temporarily or permanently end an auction prior to or during the stated auction period at is sole discretion without notification. HGP, in its sole discretion, reserves the right to extend the stated auction period without notification. If for any reason HGP is unable to deliver any Goods purchased by Buyer, HGP’s and DUKE ENERGY’s sole liability shall be to return all sums paid by Buyer for such Goods.

13. Minimum or Reserve Prices. HGP, in its sole discretion, reserves the right to establish a reserve or minimum price on any Goods without having to announce, post or publish notice to attendees and buyers at any auction. HGP reserves the right to confirm or reject the final bid. Further, HGP, and/or its affiliates or subsidiaries, may bid at the auction for its own account, on behalf of a third party or the seller.

14. Absentee/Proxy Bids. By completing an “Absentee (Proxy) Bidder Form,” Bidders may appoint HGP to be an agent and proxy for the sole purpose of purchasing the items listed when the Bidder CANNOT bid on the day of the sale. ALL BIDS ARE FINAL AND BINDING and DO NOT include any applicable buyer’s premiums and sales taxes. HGP will bid up to the specified maximum bid amount to win the item, using only the amount needed to win the item. HGP has complete discretion whether and when to accept Proxy bids. The auctioneer’s announcements at the time the lot is sold take precedence on any and all published materials. Proxy bidders will be notified only if they have been declared the high bid. Notification will take place in the form of an electronic invoice which will be sent to the email address provided during registration.

15. Right to Refuse Bids of Deny Access. HGP, in its sole discretion, reserves the right to refuse the bid of any person without providing any notice or reason therefore. HGP reserves the right to deny the usage and access by any person or third party of any and all HGP Services and Websites without notification.

16. Bid Increments. HGP, in its sole discretion, shall control all bidding increments and advances at any auction. HGP reserves the right to reject any bid that is only a minimal increase over the preceding bid, that is not commensurate with the value of the item being offered or that HGP believes was made illegally or in bad faith. In the event of a dispute among bidders, HGP may, in its sole discretion, either accept what it deems to be the final bid or solicit further bids on the item in dispute. No returns or refunds will be permitted, unless authorized by the Consignor in writing.

17. Aggregate Bids. HGP reserves the right, in its sole discretion, to sell items advertised as a public auction sale, on a piece by piece basis or as a complete lot. Without limiting the generality of the foregoing, HGP may accept a complete lot bid and then conduct an item by item auction which auction shall be effective only if the total proceeds there from exceed the amount of the complete bid.

18. Information Subject to Error. All information provided by HGP or DUKE ENERGY to Buyers, including without limitation, any advertising, lot sales catalogs or otherwise, is subject to deletions, errors, additions, and changes without notice. Although information is gathered from sources thought to be reliable, HGP and DUKE ENERGY shall have no responsibility whatsoever for any information provided to any attendee or Buyers. All Buyers shall rely solely on their own investigation and inspection of any Goods.

19. Right to Amend Terms and Conditions. HGP reserves the right to amend any and all of the terms and conditions stated herein at any time without notification at HGP’s sole discretion. It is the Buyers responsibility to read and review these Terms for each sale. HGP provides these Terms through its Websites and in printed form at on-site auctions.

20. Agency Relationship. When HGP is selling or auctioning any Goods on behalf of DUKE ENERGY, HGP shall act as an agent only and shall have no liability whatsoever for the acts of DUKE ENERGY.

21. Export Law Compliance. Buyers agree to comply with all United States export control and related laws, as well as acknowledge that HGP and DUKE ENERGY are not the exporter of any purchased item. Certain Goods offered for sale may constitute “Restricted Technology.”  Under Federal Law, such items may not be shipped outside the United States. Buyer also agrees not to export any item to countries which are subject to comprehensive embargoes or support terrorism.  These countries include, but are not limited to:  Cuba, Iran, North Korea, Sudan, and Syria.  The list will change from time to time. HGP and DUKE ENERGY make no representation or warranty concerning Restricted Technology or conducted that an investigation to ascertain which items, if any, constitute Restricted Technology.

Buyer shall not transfer, export, re-export or retransfer the Goods, or disclose any technology associated with the Goods, to any country or any foreign person or entity, wherever located, and Buyer shall not transfer the Goods to any third party for such use, except in each case with the prior written consent of DUKE ENERGY and in accordance with U.S. export control laws and regulations.  Buyer shall be solely responsible for its and any third parties’ compliance with U.S. export control laws and regulations, and Buyer will indemnify and hold harmless HGP and DUKE ENERGY from any fines, penalties, or liabilities (including reasonable attorneys’ fees) arising from or relating to any failure by Buyer or third parties to comply with U.S. export control laws and regulations. 

22. Auction Sites. Buyers acknowledge that an auction site is a potentially dangerous place, Flammable, noxious, corrosive and pressurized substances may be present. Heavy equipment may be operated and electrical circuits may be live. Every person enters the auction site at his or her own risk with notice of the condition of the premises and the activities that will be or have been conducted on the premises. No person shall have any claim against HGP or  DUKE ENERGY or their respective agents for any injuries sustained or for damages to or loss of property that may occur at the auction site or the premises where the Goods are located.

23. Rights and Remedies. If the Buyer fails to comply with any of the Terms, HGP and DUKE ENERGY shall have all rights and remedies available to it at law and in equity. Without limiting the generality of the foregoing, HGP and DUKE ENERGY may retain all deposits and partial payments received from Buyer and may resell any Goods that Buyer fails to purchase. Buyer shall be responsible for all costs, losses, and damages suffered by HGP and DUKE ENERGY (i) as a result of Buyer’s breach of any of the Terms, including without limitation, lost profits and consequential damages, and (ii) incurred in connection with the enforcement of HGP’s rights, including, without limitation, legal fees and costs and expenses related to the resale of Goods, including storage and rigging fees.

24. No Collusion. Buyers agree they will not participate in any bidding practices with the intent of manipulating the bidding. Any and all forms of collusion between Buyers is forbidden. Buyers agree they will not place bids using false names or Buyer Information.

25. Buyers Release and Indemnification.  In no event shall HGP, DUKE ENERGY or their suppliers be liable for any losses or damages whatsoever whether based on contract, tort (including negligence and strict liability) under  any warranty or otherwise arising out of or relating to Buyer’s purchase or use of the Goods and Buyer hereby releases HGP and DUKE ENERGY and their suppliers from any liability for all such losses and damages.  In addition, in no event shall HGP or DUKE ENERGY or their suppliers be liable for any indirect, special, incidental or consequential losses or damages whatsoever whether based on contract, tort, (including negligence and strict liability), under any warranty or otherwise arising out of or relating to the Goods or the Terms and Buyer hereby releases HGP, DUKE ENERGY and their suppliers from any liability for all such losses and damages.  In any event, HGP’s and DUKE ENERGY’s total cumulative liability for claims of any kind, if any, whether based on contract, tort (including negligence and strict liability) under any warranty or otherwise arising out of or relating to the Goods or the Terms shall not exceed in the aggregate the amount of the purchase price paid for the Goods out of which the liability is arising, and Buyer hereby releases HGP and DUKE ENERGY from any liability in excess of such amount.  Buyer shall indemnify, defend and hold HGP and DUKE ENERGY, their suppliers, or their affiliates and their respective officers, directors and employees harmless from and against any claims, demands, losses, suits, penalties, judgments, damages, expenses (including reasonable attorneys’ fees), and all other liabilities whatsoever, whether direct or indirect, relating to or arising out of or in connection with the Goods, including without limitation the removal, packing, loading, shipping, resale, use, operation, possession, disposal, storage, decontamination, dismantling or maintenance of, or the failure to use, operate, maintain or secure, the Goods, on or after the date of Buyer’s or its subcontractor’s payment for the Goods.

26. Website Usage. The following is specific to the access and usage of HGP Websites including and not limited to any and all features and applications:

A) Each Registrant will specify a unique User Name and Password and it is solely the responsibility of the Registrant to maintain the confidentiality of this User Name and Password.

B) Registrants are solely responsible for any and all transactions or transmissions using their User Name and Password

C) HGP and DUKE ENERGY are not responsible for any and all unauthorized or compromised usage of the Registrant’s User Name and Password. Registrants are responsible for contacting HGP in writing for any and all unauthorized usage of their User Name and Password.

D) Registrants agree they will not:

i) Disrupt, interfere or create outages to computer networks that directly or indirectly affect HGP Websites.

ii) Falsely misrepresent or impersonate any other person or entity. Registrants are forbidden from misrepresenting a registrant’s employment by or affiliation with any third party.

iii) Registrants are forbidden from posting, uploading, transmitting, publishing or distributing any and all information that contains viruses, code, files or programs with the malicious intent of affecting HGP Websites.

iv) Registrants agree they will not copy, modify, reproduce, distribute or sell any information or material provided through HGP Websites.

E) HGP and DUKE ENERGY are not responsible for any products, content, information or material provided by links to or statements regarding third party services. This includes but not limited to riggers, shippers, partners and any third party services listed.

F) Registrants agree HGP, DUKE ENERGY and their affiliates, including partners, officers, directors, employees, agents, shareholders or co-branders, are not responsible for any and all damages, actual or alleged, resulting from the downloading of any information or materials from HGP Websites.

27.  Software and Confidential Information.  Should any of the Goods include any software, or any information that is marked confidential by DUKE ENERGY or its suppliers, then Buyer agrees to comply with any applicable restrictions on copying, disclosure or use of such software or information.

28.  Assignment.  Buyer’s right to purchase the Goods shall not be assigned to any other party without the prior written consent of HGP and DUKE ENERGY.

29.  Non-Waiver.  No waiver by any party of any breach by another party of any provision hereof shall be deemed to be a waiver of any other breach thereof or as a waiver of any such or other provision of these Terms.

30.  Applicable Law.  The agreement for purchase and sale of the Goods (including these Terms) is made with the intention that the construction, interpretation and validity hereof shall be determined in accordance with and governed by the laws of the State of Florida.

31.  Binding Effect.  These Terms shall be binding upon and shall inure to the benefit of the Buyer, HGP, DUKE ENERGY  and their respective successors and permitted assigns.  Any indemnities, waivers or limitations of liability shall also inure to the benefit of the original supplier of the Goods that are being purchased under these Terms.

32.  Entire Agreement.  The Terms constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and cancel all prior or contemporaneous oral or written agreements and understandings with respect to the subject matter hereof.  Exhibit A to the Terms is hereby incorporated herein by reference.  The Terms may not be changed or modified orally, but only by an instrument in writing signed by the parties hereto which instrument unequivocally states that it is an amendment to the Terms.

33.  Severability.  If any provision of the Terms is declared invalid or unenforceable as a matter of law, such invalidity or unenforceability shall not affect or impair the validity or enforceability of any other provision of the Terms or the remainder of the Terms as a whole.

34.  Survival.  The provisions of the Terms that by their sense and context are intended to survive the performance thereof by any or all parties shall so survive the completion of performance and termination of the Terms, including the making of all payments hereunder.

35.  Force Majeure.  In no event shall HGP or DUKE ENERGY be liable or responsible for any loss, damage, or other consequence of any failure or delay in fulfilling any or all of their obligations hereunder to the extent that such failure or delay is due to: acts of god or unusual weather conditions; fires; strikes or other labor disputes; loss of or damage to the Goods; delays in transportation; riots; thefts; accidents; equipment breakdowns; acts or failures to act by Buyer; acts or failures to act by the government, its agencies or officers; or any other cause, existing or future, beyond their reasonable control.

36.  Nuclear Financial Protection.   In the event that the Goods are to be used at a nuclear facility, either by the Buyer or by any third party transferee, the provisions of this Section 36 shall apply. Buyer shall not transport the Goods outside of the United States or install or otherwise use the Goods in connection with any nuclear facility for which the Nuclear Regulatory Commission (NRC) has no financial protection requirement, and Buyer shall not transfer the Goods to any third party for such use without the prior written consent of DUKE ENERGY.  Buyer hereby waives and shall require any subsequent purchaser to waive any and all rights and remedies against DUKE ENERGY and its subcontractors for damage to Buyer’s or any subsequent purchaser’s property, and shall (or shall contractually require any end user of the Goods), at its sole expense, obtain and maintain all-risk nuclear property insurance.  Any deductible shall be for the account of Buyer or the end user.  Such insurance shall protect DUKE ENERGY, its parent and affiliates, if any, it suppliers and subcontractors as their interests may appear, and shall include a waiver of subrogation in favor of Buyer and its subcontractors.  Buyer shall also obtain  and maintain (or shall contractually require any end user of the Goods to obtain and maintain) nuclear liability financial protection, with limits and coverage as may be required by the Atomic Energy Act of 1954, as amended (the “Act”) or by the NRC, covering the legal obligation of any entity to pay damages for bodily injury, environmental or property damage caused by a “nuclear incident” or the nuclear energy hazard as such terms are defined by the Act, and Buyer shall obtain and maintain (or shall contractually require any end user of the Goods to obtain and maintain) a governmental indemnity agreement if required by the Act.  Buyer shall assure (or shall contractually require any end user of the Goods to assure) that DUKE ENERGY, its agents, suppliers and subcontractors shall be included among the persons protected under the financial protection arrangements and shall be included among the persons indemnified pursuant to the indemnification agreement.  If Buyer or any end user of the Goods takes any Goods directly to any location that is not an operating U.S. nuclear power station like for storage or disposal, such locations must have nuclear energy liability insurance from American Nuclear Insurers consisting of (i) a Facility Form Policy for any and all locations where Buyer’s Goods are stored and disposed of, with limits not less than $25,000,000; and (ii) a Suppliers’ & Transporters’ Policy in the amount of $25,000,000 for coverage throughout any processing, storage, transportation, and disposal of the Goods. Such nuclear energy liability policies must remain in effect until the applicable sites complete decommissioning/site remediation and the facilities and land are suitable for release and unrestricted use.  Buyer hereby agrees, or if the Buyer is not the end user of the Goods, shall require the end user to defend, indemnify and hold DUKE ENERGY and its subcontractors harmless from and against any loss, claim or damage arising out of or in connection with the Goods or related obligations under this agreement resulting in any nuclear energy hazard liability or a nuclear incident, regardless of fault or cause.

37.  Special Nuclear Safety-Related Transaction Provisions.  None of the Goods being sold involve the purchase and sale of materials or equipment that are to be considered nuclear safety-related materials or equipment. DUKE ENERGY may provide Buyer with copies of the quality assurance certifications furnished by DUKE ENERGY’s vendors that pertain to the Goods and that DUKE ENERGY has in its possession at the time of the same, provided Buyer has submitted a written request for such certification and receiving DUKE ENERGY’s written concurrence prior to bidding.  In no event shall DUKE ENERGY be obligated to provide Buyer with copies of any quality assurance documents generated by anyone other than DUKE ENERGY’s vendors.  DUKE ENERGY MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE COMPLETENESS OR ACCURACY OF ANY SUCH CERTIFICATION OR OTHER INFORMATION FURNISHED BY DUKE ENERGY.  

38.  Chemical Sale.  The Goods are being received and accepted by Buyer for subsequent

use by Buyer and not for disposal purposes.  In the event Buyer no longer has a use for the Goods, Buyer is required to dispose of the Goods in accordance with all appropriate local, State and Federal disposal laws.  Noncompliance of these laws will be Buyer’s responsibility legally and financially. Noncompliance will result in environmental and legal consequences for Buyer solely, including any fees and penalties that may be billed to DUKE ENERGY as a result of Buyer’s negligence. 

39.  Transfer.  Buyer agrees that it shall not transfer or sell safety-related Goods or

Goods important to safety to another party without requiring the transferee to obtain insurance and financial protection, indemnities and limitations of liability at least equivalent to those set forth in the Terms.  In the event of any transfer or sale of the Goods in breach of this paragraph 39, Buyer agrees to defend, indemnify and hold DUKE ENERGY harmless from and against any liability that would have been avoided by complying with this paragraph 39.

EXHIBIT A

Insurance Requirements

Commencing with the performance of any services hereunder, and continuing until the final destination of the Goods, Buyer (and any tier subcontractors) shall maintain or cause to be maintained occurrence form insurance policies as follows: (a) Workers’ Compensation in accordance with the statutory requirements of the state in which the Services are performed and Employer’s Liability Insurance of not less than $1,000,000 each accident/employee/disease; (b) Commercial General Liability Insurance having a limit of at least $1,000,000 per occurrence/$2,000,000 in the aggregate for contractual liability, personal injury, bodily injury to or death of persons, and/or loss of use or damage to property, including but not limited to products and completed operations, premises and operations liability and explosion, collapse, and underground hazard coverage; (c) Commercial/Business Automobile  Liability Insurance (including owned (if any), non-owned or hired autos) having a limit of at least $1,000,000 each accident for bodily injury, death, property damage and contractual liability and no fellow employee exclusion;  (d) Umbrella/Excess Liability insurance with limits of at least $4,000,000 per occurrence and follow form of the underlying Employer’s Commercial General and Auto Liability insurance, and provide at least the same scope of coverages thereunder; and (e) if Buyer will be handling environmentally regulated or hazardous materials, Pollution Legal Liability, including coverage for sudden/accidental occurrences for bodily injury, property damage, environmental damage, cleanup costs and Duke Energyense with a minimum of $1,000,000 per occurrence (claims-made form acceptable with reporting requirements of at least three (3) years after completion).  All insurance policies provided and maintained by Buyer and each subcontractor shall: (i) be underwritten by insurers which are rated A.M. Best “A- VII” or higher; (ii) specifically include DUKE ENERGY and its directors,  officers, employees, affiliates, subcontractors, and joint owners of any facilities as additional insureds with respect to Buyer’s acts, omissions, services, products or operations, whether in whole or in part, excluding, however, for Worker’s Compensation/Employer’s Liability insurance; (iii) be endorsed to provide, where permitted by law, waiver of any rights of subrogation against DUKE ENERGYand its directors, officers, employees, affiliates and subcontractors, and joint owners of any facilities; (iv) provide that such policies and additional insured provisions are primary with respect to the acts, omissions, services, products or operations of Buyer or its subcontractors, whether in whole or in part, and without right of contribution from any other insurance, self-insurance or coverage available to DUKE ENERGY and its affiliates; (v) contain standard separation of insured and severability of interest provisions except with respect to the limits of the insurer’s liability, and (vi) not have any cross liability exclusion, or any similar exclusion that excludes coverage for claims brought by additional insureds under the policy against another insured under the policy.  Any deductibles or retentions shall be the sole responsibility of Buyer and its subcontractors.  Evidence of such coverage shall be provided via Buyer’s certificate of insurance furnished to DUKE ENERGY prior to the start of Services, upon any policy replacement or renewal and upon DUKE ENERGY’s request.  All insurance policies shall provide that the insurer will provide at least thirty (30) days’ written notice to Buyer, who in turn shall provide at least thirty (30) days’ written notice to DUKE ENERGY prior to cancellation of any policy (or ten (10) days’ notice in the case of non-payment of premium).  Buyer’s compliance with these provisions and the limits of insurance specified herein shall not constitute a limitation of Buyer’s liability or otherwise affect Buyer’s indemnification obligations pursuant to the Terms.  The failure by Buyer to provide any or accurate certificates of insurance, or DUKE ENERGY to insist upon any or accurate certificates of insurance, shall not be deemed a waiver of any rights of DUKE ENERGY under the Terms or with respect to any insurance coverage required hereunder. DUKE ENERGY at its sole discretion may request Buyer or its subcontractors to provide a copy of any or all of its required insurance policies, including endorsements in which DUKE ENERGY is included as an additional insured.