SALES AGREEMENTNevada Power Company d/b/a NV Energy Inc. [This Agreement is not to be used for the sale of real property, sales contingent upon environmental remediation, or sales of Item(s) subject to export restrictions]
Nevada Power Company d/b/a NV ENERGY a Nevada corporation, (“Seller”) having offices located at 6226 W. Sahara Avenue, Las Vegas, Nevada 89146, and <BUYER>, a <state> <legal entity type>, (“Buyer”), having its principal place of business at <ADDRESS> enter into this Sales Agreement (“Agreement”) as of ______________, ____ (“Effective Date”). Seller and Buyer individually may be referred to as a “Party” and collectively as “Parties.” RECITALS:
A. WHEREAS, Seller has certain surplus or used equipment for sale (“Item(s)
”), more specifically described in Exhibit A
, attached hereto, and incorporated by reference into this Agreement;
B. WHEREAS, Buyer has submitted an offer to purchase Item(s) from Seller;
C. WHEREAS, Seller has reviewed Buyer’s offer to purchase Item(s) and has accepted such offer subject to the following terms and conditions contained herein; and
D. WHEREAS, The Parties have agreed to the following terms and conditions by which Buyer may purchase Item(s) from Seller.
NOW THEREFORE, in consideration of the mutual promises and undertakings herein contained, and intending to be legally bound, the Parties hereto agree as follows: AGREEMENT: A. SALE TERMS
1. ITEM(S) TO BE PURCHASED
. Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, Item(s) listed in Exhibit A, located at Seller’s facility (“Seller’s Premises”) also identified in Exhibit A.
2. PURCHASE PRICE
. The purchase price for the Item(s) is XXXX US Dollars ($0.00) plus any amount(s) due for Seller’s cleaning, dismantling, or shipping Item(s), as applicable and indicated in Exhibit A, shall be made in immediately available funds to Seller by wire transfer and delivered no less than five (5) days after receipt of invoice from Seller.
. Unless a Resale Certificate is presented upon execution of this Agreement all excise, sales, use or similar taxes shall be: (a) in addition to the purchase price, (b) the responsibility of Buyer and (c) paid in full by Buyer to Seller.
4. PAYMENT TERMS
. Time is of the essence for Buyer’s payment purchase price. If Buyer fails to pay for the Item(s), Seller may cancel this Agreement without liability to Seller, in which case Seller shall be entitled to retain as liquidated damages, and not as a penalty, any deposits or payments for the Item(s) received from Buyer. Buyer shall indemnify Seller, its directors, officers, employees, agents, affiliates, and parent company against all and any claims, damages, and expense, including legal fees, arising out of the Parties use of on third party broker.
. Buyer acknowledges that, prior to entering into this Agreement, it was offered ample opportunity by Seller to inspect Item(s) and agrees that all Item(s) are offered for sale “AS IS / WHERE IS” without any implied or express warranty by Seller. Buyer acknowledges and understands that the Item(s) may have been built and maintained by the Seller to conform with regulatory and industry standards, such as the National Electrical Safety Code, or good utility practice, however, Seller makes no representation that any such conformity or compliance continues or that Item(s) could be used by Buyer to achieve such conformity or compliance. B. PICK-UP OR SHIPMENT TERMS
. Buyer and Seller shall determine whether Item(s) will be picked up at Seller’s Premises by Buyer, at Buyer’s cost and expense, or shipped to Buyer, at Buyer’s cost and expense.
2. PROMPT PICK-UP OF ITEM(S)
. In the event that Buyer and Seller agree that Buyer will pick up Item(s) at Seller’s Premises, then arrange for the pick-up of the Item(s) from Seller’s Premises within thirty (30) days of the Effective Date, but no earlier than five (5) business days after the Effective Date. If Buyer fails to pick up Item(s), the sale of the Item(s) to Buyer shall be deemed null and void, any title shall not be transferred to Buyer and any monies paid by Buyer to Seller shall be non-refundable.
All Item(s) shipped will be FCA Shipping Point. If applicable, Buyer shall bear all costs and expenses for cleaning and dismantling Item(s) in preparation for shipment. Seller, at Buyer’s cost and expense, including freight and handling charges, shall send Item(s), for shipment, to the address identified by Buyer within thirty (30) days of the receipt of full payment.
. If Buyer wishes to inspect Item(s) at Seller’s Premises or pick up Item(s) at Seller’s Premises, Buyer and Buyer’s contractors and other agents (“Entities on Premises
”) shall comply with all applicable laws and Seller’s policies and procedures for onsite visits. Entities on Premises shall maintain liability insurance during the term of this Agreement. The limits of such policy shall not be less than TWO MILLION DOLLARS ($2,000,000) per occurrence and TWO MILLION DOLLARS ($2,000,000) annual aggregate general commercial liability insurance. In addition, Entities on Premises shall have automobile liability insurance having a combined ONE MILLION DOLLAR ($1,000,000) single limit; workers’ compensation insurance in accordance with statutory requirements; employer’s liability insurance with ONE MILLION DOLLAR ($1,000,000) limits for each bodily injury by accident, each employee bodily injury by occupation disease, and in annual aggregate per each bodily injury by occupational disease; pollution liability insurance with limits of TWO MILLION DOLLARS ($2,000,000); and excess liability insurance having a minimum limit of FIVE MILLION DOLLARS ($5,000,000). Each insurance policy will be issued by an insurer that is approved to do business in the State of Nevada and is A.M. Best Company A- (minus) rated or better. Separation of insured coverage shall be in place for general commercial liability and automobile policies. Buyer will provide Seller current and valid certificates of insurance verifying that all required coverage and endorsements are in full force and effect. C. SITE-ACCESS TERMS
If Entities on Premises are to inspect Item(s) at Seller’s Premises or pick up Item(s) at Seller’s Premises, Entities on Premises shall comply with the following:
. Buyer will be liable and responsible for all actions and omissions stemming from the performance or non-performance of this Agreement by other Entities on Premises. Entities on Premises will comply with all required workplace rules and internal company policies, including but not limited to environmental protection, loss control, dust control. Entities on Premises will comply with all directions given by Seller’s personnel or agents while at Seller’s Premises.
. If requested by Seller, the employees and other representatives of Entities on Premises shall complete safety orientation training. Entities on Premises must report immediately to Seller any injury or illness, any vehicle-related incident, or any other near miss (collectively referred to in this provision as “incident”) occurring during performance of this Agreement. Entities on Premises must fully cooperate with Seller and any other agency investigating incidents that occur during performance, including interviews of Entities on Premises’ employees or other representatives. Entities on Premises must have the worker involved in any incident tested for prohibited drugs and alcohol use as soon as practical following an incident.
. Entities on Premises will not disrupt or otherwise interfere with any utility-facility operation. Entities on Premises shall fully cooperate and coordinate with Seller’s employees or other representatives.
4. REMOVAL OF PERSONNEL
. Entities on Premises shall not bring firearms or other weapons to any Seller facility or premises. This includes parking areas and remote locations. Entities on Premises shall immediately remove from Seller’s Premises any employees, representatives or agents suspected of being under the influence of drugs or alcohol. Entities on Premises shall also immediately remove from the physical location, whenever requested by Seller, any person considered by Seller to be incompetent, insubordinate, careless, disorderly, or in violation of the above restrictions.
5. LIABILITY AND INDEMNITY
. Entities on Premises are liable for, will repair any damage to, and indemnify Seller, its directors, officers, employees, agents, affiliates, and parent against all and any claim, loss, cost, suit, judgment, damage, and expense, including legal fees, arising out of failure to comply with Seller’s policies, oral or written directions, and the terms and conditions of this ARTICLE C. D. DISCLAIMER OF WARRANTIES
1. DISCLAIMER OF WARRANTIES
. BUYER UNDERSTANDS, AGREES, AND ACCEPTS THAT THE ITEM(S) ARE SOLD "AS IS / WHERE IS" WITH ALL FAULTS AND DEFECTS. SELLER HAS NOT MADE, NOR MAKES, AND BUYER EXPRESSLY WAIVES, ANY REPRESENTATION, WARRANTY OR COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANTABILITY, CONDITION, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. SELLER SHALL NOT BE LIABLE FOR ACTUAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES TO BUYER OR ANY OTHER PERSON ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE ITEM(S). ANY DESCRIPTIONS OF PARTICULAR ITEM(S) IN ANY EXHIBIT TO THIS AGREEMENT, INCLUDING ANY DRAWINGS, OR DIAGRAMS FURNISHED BY SELLER TO BUYER ARE FOR THE SOLE USE OF IDENTIFYING THE ITEM(S) AND ARE BASED ON INFORMATION AVAILABLE TO SELLER. SELLER MAKES NO REPRESENTATION, OR WARRANTY THAT THE ITEM(S) CONFORM TO SUCH DESCRIPTIONS OR THAT ANY DOCUMENTATION IS COMPLETE OR THAT THE DOCUMENTATION NECESSARY TO OPERATE, HANDLE, TRANSPORT OR STORE THE ITEM(S) HAS BEEN PROVIDED. Seller makes no representation or warranty with respect to and in no way transfers any right, title or interest in or to any of its proprietary information or any associated Intellectual Property Right of Seller or any manufacture of the Item(s). “Intellectual Property Rights
” means the rights of any person or entity in the commercially valuable and proprietary property including but not limited to: (1) copyrights, trademarks, patents, trade names, domain names; (2) rights relating to innovations, know-how, trade secrets, or confidential, technical, or non-technical information.
2. TITLE REPRESENTATION AND WARRANTY
. Seller, represents that it is the lawful owner, and has the right to sell Item(s), and that they are free from all encumbrances. Title to Item(s) will transfer to Buyer upon Buyer’s payment in full and shipment of Item(s) or when Buyer receives delivery of Item(s) at Seller’s Premises. E. HAZARDOUS MATERIALS TERMS
1. HAZARDOUS CHEMICALS AND OTHER HAZARDOUS MATERIALS
. Buyer and other Entities on Premises acknowledge and understand that the Item(s) may contain hazardous materials, including but not limited to petroleum byproducts, chemical products, naturally occurring radioactive materials, and asbestos, which may be or may become hazardous to life, health or property at any time after the Item(s) leave the possession and control of Seller, including, but not limited to, during use, handling, cleaning, reconditioning or disposal, such chemicals or materials that now or in the future are regulated, monitored, or listed as hazardous by any government authority, and those that are a basis for potential liability to any governmental agency or third party under applicable laws(“Hazardous Material
”). Buyer and other Entities on Premises shall advise each person to whom Buyer resells, gives or delivers any of the Item(s) or whom Buyer can reasonably foresee being exposed to such Item(s) (including, but not limited to, Buyer’s employees and subcontractors) of the Hazardous Materials, and Buyer. Buyer is solely responsible for providing any necessary training, protective equipment, and safety precautions, to its employees, agents, or other Entities on Premises, in the handling, use, storage, and disposal of Hazardous Material. In handling, use, storage, or disposing of the Item(s), Buyer and other Entities on Premises shall comply with all federal, state, and local laws and regulations, as well as, Safety Data Sheets.
2. Buyer’s Obligations on Release of Hazardous Material
. If Buyer or Entities on Premises release any Hazardous Material on Seller’s Premises, Buyer shall stop all activities and immediately notify Seller, and follow-up with written notification. Buyer shall, at its expense, follows Seller’s direction regarding clean-up and disposal released Hazardous Material.
3. Buyer’s obligations to Pay Fines for Failure to Comply
. Any fine, fee, or levy incurred due to Buyer’s failure to comply with this section’s requirements applicable laws associated with Hazardous Material management is Buyer’s sole responsibility.
4. INDEMNITY FOR HAZARDOUS MATERIAL
. To the fullest extent permitted by law, Buyer will indemnify Seller, its directors, officers, employees, agents, affiliates, and parent company from any claim, loss, cost, suit, judgment, damage, and expense, including legal fees, arising out of or resulting from any violation of Supplier’s requirements of this ARTICLE E. F. GENERAL PROVISIONS
1. RELEASE OF CLAIMS AND LIABILITY
. Except for claims relating to Seller’s failure to make particular Item(s) available to Buyer for removal, Buyer hereby releases Seller, its corporate affiliates, parent company, directors, officers, employees, agents and representatives from any and all liability and waives any claim, loss, cost, suit, judgment, damage, and expense, including legal fees, it may now have or which it may have in the future against them arising out of or resulting from Buyer’s purchase of the Item(s).
2. LIMITS OF LIABILITY
. Seller’s liability for failure to make particular Item(s) available for removal shall be not greater than the purchase price for such Item(s), and in no event shall Seller be liable for incidental, consequential, special, punitive, or indirect damages.
3. GENERAL INDEMNITY
. In addition to indemnity provisions provided for in this Agreement, Buyer agrees to indemnify, defend, and hold harmless Seller and its officers, directors, employees, other agents, affiliated companies, parent company, and subsidiaries, including the officers, directors, employees and other agents of these entities (hereinafter collectively “Indemnitees
”) against and from any and all claims, demands, suits, losses, costs and damages of every kind and description, including attorneys’ fees and litigation expenses, brought or made against or incurred by any of the Indemnitees resulting from or arising out of the acts, errors or omissions of Buyer, its employees, agents, or Entities on Premises, related to Buyer’s obligations under this Agreement (“Indemnity Claim
”). The indemnity obligations under this section shall include without limitation: (a) loss of or damage to any property of Seller, Buyer or any third party; (b) bodily injury to, or death of any person(s), including without limitation employees of Seller, or of Buyer or its Entities on Premises of any tier; and (c) claims arising out of workers’ compensation, unemployment compensation, or similar such laws or obligations applicable to employees of Buyer or its entities on Premises. Buyer’s indemnity obligations owing to Indemnitees under this section are not limited by any applicable insurance coverage. Buyer’s indemnity obligation shall be reduced proportionally by the negligence of any of the Indemnitees. Buyer shall pay all legal fees and costs that the Indemnitees incur as a result of an Indemnity Claim.
4. SEVERABILITY AND NON-WAIVER
. If any provision of this Agreement, is determined by a court of competent jurisdiction to be unenforceable, such provision shall be deemed to be severed and the remaining provisions of the Agreement shall remain in full force and effect. No failure or delay by either Party in exercising any right, power, or privilege under this Agreement shall be deemed a waiver of right, power, or privilege.
5. Governing Law; Jurisdiction; Waiver of Jury Trial
. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, excepting the provisions that would apply the laws of another jurisdiction. All actions must be commenced exclusively in the courts of Clark County or Washoe County, Nevada or the United States District Court for the District of Nevada. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
6. COMPLIANCE WITH APPLICABLE LAWS
. Parties must comply with all federal, state, and local law, ordinances, rules, regulations, orders, judgments, decrees, rulings, determinations, permits, certificates, authorizations, of any governmental authority applicable to this Agreement. Buyer certifies that it has obtained, and will maintain in full force and effect, all required federal, state, city, county, or local licenses and permits. Buyer is solely responsible for securing any necessary permit required in connection with this Agreement. Buyer’s failure to obtain and maintain any required license or permit may be considered a material breach of this Agreement. Notwithstanding any other term or condition of this Agreement, Seller may disclose any information required by law, rule, applicable regulation, generally accepted accounting principles, stock exchange rules or disclosure requirements, legal process, including but not limited to interrogatories and subpoenas, or by order of a court or governmental agency, including but not limited to, the Public Utilities Commission of Nevada (“PUCN”), to the Federal Energy Regulatory Commission (“FERC”), and to parties in a proceeding at the PUCN or FERC.
7. FORCE MAJEURE
. A party may suspend this Agreement in case of an act of God, war, riot, fire, explosion, flood, strike, lockout, injunction, accident, breakage of machinery or apparatus, national defense requirements or any cause beyond the control of the performing party preventing the sale, pick-up or dismantling of the Item(s).
8. Business Ethics.
Buyer, its employees, and other agents, including but not limited to any other Entities on Premises, shall at all times maintain the highest ethical standards and avoid conflicts of interest in the performance of this Agreement. In conjunction with its performance, Buyer and its employees, and other agents shall comply with, and cause their respective employees, officers, and agents to comply with, all applicable laws, statutes, regulations and other requirements prohibiting bribery, corruption, kick-backs or similar unethical practices including, without limitation, the United States Foreign Corrupt Practices Act, the United Kingdom Bribery Act 2010, and Seller’s Code of Business Conduct. Without limiting the generality of the foregoing, Buyer specifically represents and warrants that neither Buyer nor any of its agents, employees, or officers, have made or will make any payment, or have given or will give anything of value, in either case to any government official (including any officer or employee of any governmental authority) to influence his, her, or its decision or to gain any other advantage for Seller or Buyer in connection with the Agreement. Buyer shall maintain and cause to be maintained effective accounting procedures and internal controls necessary to record all expenditures in connection with this Agreement and to verify Buyer’s compliance with this section. Seller shall be permitted to audit such records as reasonably necessary to confirm Buyer’s compliance with this section. Buyer shall immediately provide notice to Seller of any facts, circumstances or allegations that constitute or might constitute a breach of this section and shall cooperate with Seller’s subsequent investigation of such matters. Buyer shall indemnify and hold Seller harmless from all fines, penalties, expenses or other losses sustained by Seller as a result of Buyer’s breach of this provision. The Parties specifically acknowledge that Buyer’s failure to comply with the requirements of this section shall constitute a condition of default under this Agreement.
9. Relationship of Parties; No Third-Party Beneficiaries
. Buyer is an independent contractor. Buyer, any Entities on Premises, or other agent will be solely liable for the payment of all wages, benefits, insurance, taxes and other amounts to or for the benefit of their respective employees. All persons engaged in performing any portion of this Agreement on behalf of Buyer will be employees or agents of Buyer or one of its agents and not the employees or agents of Seller. There will be no third-party beneficiaries of this Agreement.
10. No Preference Against Drafter
. This Agreement shall be deemed to be jointly drafted by the Parties upon advice of legal counsel and no preference of interpretation should be construed against either Party as drafter of this Agreement.
11. ENTIRE AGREEMENT
. This Agreement completely states the rights and duties of the parties, set forth their entire understanding and merges all prior and contemporaneous representations, promises, proposals, discussions and understandings by or between the parties. It may be modified or amended only by another written agreement duly executed by the parties.
. Any notice required or authorized to be given hereunder by either Party shall be in writing and shall be addressed as follows:
Buyer: Click here to enter text.
Click here to enter text.
Click here to enter text.
Attn: Click here to enter text.
Seller: Nevada Power Company d/b/a NV Energy Inc.
6226 W. Sahara Avenue
Las Vegas, NV 89146
Attn: Click here to enter text.
13. AUTHORITY. The individual executing this agreement represents and warrants that they have all necessary corporate and legal authority to execute this agreement on behalf of Buyer and that any and all approvals necessary to enter into this agreement have been obtained.
[signature page follows
Wherefore the parties have executed this Sales Agreement as of the Effective Date.
|NEVADA POWER COMPANY d/b/a NV ENERGY||BUYER|
|By: __________________________||By: __________________________|
|Name: __________________________||Name: __________________________|
|Title: __________________________||Title: __________________________|