EQUIPMENT SUPPLY AGREEMENT

EQUIPMENT SUPPLY AGREEMENT
Execution Version
December 1, 2022
between
LONE STAR STORAGE I, LLC a Texas limited liability company ("Buyer")
and
HARMON-DIETRICH ENERGY SOLUTIONS, LLC a Delaware limited liability company ("Supplier")
Lone Star Battery Storage Project 50 MW / 200 MWh Battery Energy Storage System Ector County, Texas
RECITALS
A. Buyer is a Texas limited liability company and single-purpose project company formed to develop, own, and operate a 50 MW / 200 MWh lithium iron phosphate ("LFP") battery energy storage system (the "Project") located on an approximately 15-acre parcel within Survey No. 42, Block 42, T-1-S, T&P RR Co. Survey, Ector County, Texas (nearest postal address: 4800 West University Boulevard, Odessa, TX 79764) (the "Project Site").
B. Buyer is a wholly owned subsidiary of Calloway-Briggs Renewables Inc., a Texas corporation ("CBR"), which serves as the sole member and manager of Buyer and manages and operates Buyer in connection with the development, construction, and operation of the Project.
C. Buyer has entered into an Engineering, Procurement and Construction Agreement dated as of December 1, 2022 with Meridian Power Construction, Inc., a Texas corporation (the "EPC Contractor"), for the design, engineering, procurement, construction, testing, and commissioning of the Project (the "EPC Agreement"). The equipment to be supplied under this Agreement constitutes a subset of the scope of the EPC Agreement and is included within the EPC Contract Price on a pass-through basis; however, the parties desire to establish a direct contractual relationship between Buyer and Supplier for purposes of warranty privity, direct supply obligations, and the security and collateral assignment requirements of Buyer's lender.
D. Supplier is a Delaware limited liability company engaged in the manufacture and integration of lithium iron phosphate battery modules and power conversion systems for grid-scale energy storage applications, with a North American manufacturing facility located in Pflugerville, Texas.
E. Buyer desires to purchase, and Supplier desires to supply, the Equipment (as defined herein) for use in the Project, on the terms and conditions set forth in this Agreement.
F. The Project is being financed in part by a $26,000,000 construction-to-term loan facility (the "Credit Agreement") provided by Brazos River National Bank, N.A. (the "Lender"), and Buyer's rights under this Agreement will be collaterally assigned to Lender as security for such financing pursuant to the Collateral Assignment of Project Contracts dated as of December 1, 2022.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 — DEFINITIONS AND INTERPRETATION
Section 1.1 — Definitions
As used in this Agreement, the following terms have the meanings set forth below:
"Acceptance Test" means the test procedures set forth in Exhibit D to be conducted following installation and commissioning of the Equipment at the Project Site to confirm that the Equipment meets the Performance Specifications.
"Agreement" means this Equipment Supply Agreement, including all Exhibits, Schedules, amendments, and Change Orders hereto, as the same may be amended, supplemented, or modified from time to time in accordance with the terms hereof.
"Battery Management System" or "BMS" means the electronic system, including all associated hardware, software, firmware, communication interfaces, and controllers, supplied by Supplier to monitor and manage battery module performance, state of charge, state of health, cell balancing, temperature, current, voltage, and safety functions for all Battery Modules within the Equipment.
"Battery Modules" means the LFP battery cells, modules, and racks comprising the energy storage portion of the Equipment, specifically Supplier's proprietary Model HD-LFP-200E, including all internal wiring, busbars, cell-level fuses, and internal protective devices.
"Buyer" means Lone Star Storage I, LLC, a Texas limited liability company, EIN 88-1623504, and its successors and permitted assigns.
"Buyer's Representative" means the individual designated by Buyer pursuant to Section 3.2 to act as Buyer's authorized representative under this Agreement.
"Capacity Warranty" means the warranty set forth in Section 10.2 with respect to the capacity retention of the Battery Modules over the Capacity Warranty Period.
"Capacity Warranty Period" means the period of ten (10) years from the date of Provisional Acceptance.
"CBR" means Calloway-Briggs Renewables Inc., a Texas corporation, the sole member and manager of Buyer.
"Change Order" means a written amendment to this Agreement modifying the scope of the Equipment, the Contract Price, the Delivery Schedule, the Performance Specifications, or other terms, executed by both Parties in accordance with Article 8 and substantially in the form attached as Exhibit F.
"Commercial Operation Date" or "COD" means August 15, 2023 (expected), or such later date as actual commercial operation of the Project is achieved; the Guaranteed COD under the EPC Agreement is September 1, 2023.
"Confidential Information" has the meaning set forth in Section 16.1.
"Container Enclosures" means the weatherproof, climate-controlled, pre-fabricated container units designed and manufactured by Supplier for housing the Battery Modules and associated electrical components, inclusive of structural framing, access doors, cable entry points, ventilation interfaces, and fire suppression integration points.
"Contract Price" means Eighteen Million Four Hundred Thousand Dollars ($18,400,000), as may be adjusted in accordance with Article 8.
"Credit Agreement" means the $26,000,000 construction-to-term loan facility agreement, dated as of December 1, 2022, between Buyer and Lender.
"Defect" means any failure of the Equipment or any component thereof to conform to the Performance Specifications, the Documentation, or the Warranties, in each case attributable to defective design, defective materials, or defective workmanship on the part of Supplier or its Subcontractors.
"Defect Warranty" means the warranty set forth in Section 10.3.
"Defect Warranty Period" means the period of five (5) years from the date of Provisional Acceptance of the applicable Equipment, subject to extension as provided in Section 10.3.
"Delivery Date" means the date on which any Shipment of Equipment is delivered to the Delivery Point in accordance with Article 5.
"Delivery Point" means the Project Site at 4800 West University Boulevard, Odessa, TX 79764, Ector County, Texas, FOB destination.
"Delivery Schedule" means the schedule of four (4) Shipments set forth in Exhibit C, as may be modified by Change Order or extended by Excusable Delay.
"Documentation" means all manuals, drawings, design specifications, installation guides, commissioning procedures, maintenance instructions, recommended operating parameters, BMS software documentation, training materials, and other technical documentation to be provided by Supplier pursuant to Sections 2.2 and 4.4.
"EPC Agreement" means the Engineering, Procurement and Construction Agreement dated December 1, 2022 between Buyer and Meridian Power Construction, Inc., as the same may be amended, supplemented, or modified from time to time.
"EPC Contractor" means Meridian Power Construction, Inc., a Texas corporation.
"Equipment" means, collectively, the Battery Modules, Power Conversion Systems, Battery Management System, Thermal Management System, Container Enclosures, and all associated components, materials, cables, connectors, switchgear interface equipment, communication hardware, sensors, monitoring software, firmware, accessories, and Documentation to be supplied by Supplier under this Agreement, as more particularly described in Exhibit A.
"Excusable Delay" has the meaning set forth in Section 6.3.
"Final Acceptance" has the meaning set forth in Section 7.3.
"Force Majeure Event" has the meaning set forth in Section 14.1.
"HVAC" means the heating, ventilation, and air conditioning systems constituting the Thermal Management System.
"Intellectual Property" has the meaning set forth in Section 11.1.
"Lender" means Brazos River National Bank, N.A., a national banking association, and its successors and assigns.
"Lender's Engineer" means Norgate Technical Advisors, Inc., or such other independent engineer retained by Lender in connection with the Credit Agreement and the Project.
"Liquidated Damages" or "LDs" means the delay liquidated damages payable by Supplier pursuant to Section 6.2.
"Loss" means any and all losses, liabilities, damages, claims, costs, and expenses (including reasonable attorneys' fees, consultant fees, and court costs).
"Nameplate Capacity" means 50 MW of power capacity and 200 MWh of energy capacity, representing the rated capacity of the Equipment at the time of Provisional Acceptance.
"Party" means Buyer or Supplier, individually, and "Parties" means both Buyer and Supplier, collectively.
"Performance Specifications" means the technical performance specifications for the Equipment set forth in Exhibit B, as may be modified by Change Order.
"Power Conversion Systems" or "PCS" means ten (10) 5 MW bidirectional inverters (total aggregate capacity of 50 MW) supplied by Supplier for AC/DC conversion, rated for interconnection at 34.5 kV at the PCS output terminals.
"Project" means the Lone Star Battery Storage Project, a 50 MW / 200 MWh LFP battery energy storage system located in Ector County, Texas, to be developed, owned, and operated by Buyer.
"Project Site" means the approximately 15-acre parcel located at 4800 West University Boulevard, Odessa, TX 79764, Ector County, Texas, being a portion of Survey No. 42, Block 42, T-1-S, T&P RR Co. Survey.
"Provisional Acceptance" has the meaning set forth in Section 7.2.
"Punch List" means a list of minor items identified at the time of Provisional Acceptance that do not materially affect the operation, safety, or performance of the Equipment.
"Scheduled Delivery Date" means, with respect to each Shipment, the date specified in the Delivery Schedule (Exhibit C) by which such Shipment is required to be delivered to the Delivery Point, as may be extended by Change Order or Excusable Delay.
"Shipment" means each of the four (4) deliveries of Equipment as described in the Delivery Schedule attached as Exhibit C.
"Spare Parts" means the recommended and required spare parts as listed in Exhibit E.
"Subcontractor" means any person or entity engaged by Supplier to perform any part of Supplier's obligations under this Agreement, including material suppliers, component manufacturers, and service providers.
"Supplier" means Harmon-Dietrich Energy Solutions, LLC, a Delaware limited liability company, and its successors and permitted assigns.
"Supplier's Representative" means the individual designated by Supplier pursuant to Section 3.3 to act as Supplier's authorized representative under this Agreement.
"Thermal Management System" means the HVAC equipment and controls supplied by Supplier for climate regulation within the Container Enclosures, including compressors, evaporators, condensers, fans, ductwork, sensors, and associated control systems, designed for continuous operation in ambient temperatures up to 115°F (46°C).
"Warranty" means, collectively, the Capacity Warranty and the Defect Warranty as set forth in Article 10.
Section 1.2 — Interpretation
The following rules of construction shall apply to this Agreement unless the context otherwise requires:
(a) The headings and titles of the Articles, Sections, and Exhibits of this Agreement are inserted for convenience of reference only and shall not affect the meaning or interpretation of any provision hereof.
(b) Words in the singular include the plural and vice versa; words in one gender include the other genders; and the use of the word "including" or "includes" shall mean "including without limitation" or "includes without limitation," as applicable.
(c) References to "Articles," "Sections," "Exhibits," and "Schedules" are references to Articles, Sections, Exhibits, and Schedules of or to this Agreement, unless otherwise specified.
(d) All monetary amounts referenced in this Agreement are expressed in, and shall be payable in, United States Dollars.
(e) References to "days" mean calendar days unless otherwise expressly stated as "business days." A "business day" means any day other than a Saturday, Sunday, or a day on which commercial banks in Houston, Texas are authorized or required by law to be closed.
(f) References to any law, statute, regulation, or code include all amendments, re-enactments, replacements, and successor statutes or regulations thereto.
(g) The words "herein," "hereof," "hereunder," "hereto," and words of similar import refer to this Agreement as a whole, including all Exhibits and Schedules, and not to any particular Article, Section, or other subdivision hereof.
(h) References to any agreement, contract, or document mean such agreement, contract, or document as amended, modified, supplemented, or restated from time to time in accordance with its terms.
(i) The Parties have participated jointly in the negotiation and drafting of this Agreement, and no rule of construction based on authorship shall apply.
Section 1.3 — Order of Precedence
In the event of any conflict, inconsistency, or ambiguity among or between the provisions of this Agreement, the following order of precedence shall apply, with the document listed first taking priority:
(1) Change Orders (in reverse chronological order, with the most recent Change Order taking priority);
(2) The body of this Agreement (Articles 1 through 22);
(3) Exhibit B (Performance Specifications);
(4) Exhibit A (Equipment Description and Scope);
(5) All other Exhibits and Schedules (in alphabetical order by Exhibit letter).
The foregoing order of precedence shall not be construed to diminish Supplier's obligation to furnish Equipment that meets all Performance Specifications and complies with all provisions of this Agreement. Where a provision in a lower-priority document imposes a more stringent requirement than a higher-priority document, the more stringent requirement shall apply unless the higher-priority document expressly states that it supersedes the lower-priority provision.
Section 1.4 — Exhibits and Schedules
The following Exhibits and Schedules are attached to and incorporated into this Agreement by this reference:
•  Exhibit A — Equipment Description and Scope
•  Exhibit B — Performance Specifications
•  Exhibit C — Delivery Schedule
•  Exhibit D — Acceptance Test Procedures
•  Exhibit E — Spare Parts List
•  Exhibit F — Form of Change Order
•  Exhibit G — Insurance Requirements
•  Exhibit H — Form of Lien Waiver
ARTICLE 2 — SCOPE OF SUPPLY
Section 2.1 — Equipment Scope
Supplier shall design, manufacture, factory-test, package, transport, and deliver to the Project Site the following Equipment, all as more particularly described in Exhibit A:
(a) Battery Modules. Fifty megawatts / Two hundred megawatt-hours (50 MW / 200 MWh) of four-hour duration lithium iron phosphate (LFP) battery modules, Supplier's proprietary Model HD-LFP-200E, including all cells, modules, racks, internal wiring, busbars, cell-level fuses, and internal protective devices, configured for a system with a minimum round-trip efficiency of eighty-seven percent (87%). The Battery Modules shall be designed for bidirectional charge and discharge operation and shall be optimized for the ancillary services and energy arbitrage applications contemplated by the Project within the Electric Reliability Council of Texas ("ERCOT") market.
(b) Power Conversion Systems. Ten (10) bidirectional 5 MW PCS inverters (total aggregate capacity of 50 MW) for AC/DC conversion, rated for interconnection at 34.5 kV at the PCS output terminals, with grid-forming and grid-following capability as further specified in Exhibit B. The PCS units shall be designed for integration with the on-site step-up transformer (34.5 kV to 138 kV), which is to be provided by the EPC Contractor under the EPC Agreement.
(c) Battery Management System. A complete Battery Management System consisting of all hardware controllers, communication architecture, and software functionality necessary for monitoring, control, protection, state-of-charge management, state-of-health assessment, cell balancing, diagnostics, alarm management, data logging, and SCADA integration for all Battery Modules within the Equipment.
(d) Thermal Management System. Integrated HVAC systems for each Container Enclosure, designed for continuous operation in Ector County, Texas ambient conditions, including extreme heat conditions of up to one hundred fifteen degrees Fahrenheit (115°F / 46°C), and capable of maintaining Battery Module operating temperatures within the range specified in the Performance Specifications.
(e) Container Enclosures. Pre-fabricated, weatherproof container units housing Battery Modules, PCS inverters, BMS hardware, and HVAC systems, designed and constructed for outdoor installation at the Project Site, including structural framing, access doors, cable entry points, ventilation interfaces, and fire suppression integration points.
(f) Associated Components. All associated cables, connectors, DC switchgear, switchgear interface equipment, communication hardware, sensors, monitoring terminals, monitoring software, firmware, and accessories as specified in Exhibit A, together with all items reasonably necessary for the Equipment to function as an integrated system in accordance with the Performance Specifications.
Section 2.2 — Documentation
Supplier shall deliver to Buyer all Documentation relating to the Equipment, including:
(a) Factory acceptance test reports for each Shipment;
(b) Installation manuals and guides providing detailed instructions for the installation, interconnection, and integration of all Equipment components;
(c) Operation and maintenance manuals, including recommended maintenance schedules, inspection protocols, and troubleshooting guides;
(d) As-built drawings reflecting the final, as-manufactured configuration of all Equipment;
(e) BMS software documentation, including user manuals, configuration guides, communication protocol specifications, and firmware revision histories;
(f) Training materials sufficient to enable Buyer's operations and maintenance personnel to operate the Equipment safely and in accordance with Supplier's recommended practices; and
(g) All applicable certificates of compliance, material certifications, and test results for Equipment components subject to industry standards referenced in Section 4.2.
Section 2.3 — Exclusions
The following items and activities are expressly excluded from Supplier's scope of supply under this Agreement and are the responsibility of Buyer or the EPC Contractor under the EPC Agreement:
(a) All civil and structural works, including site preparation, grading, drainage, fencing, and access road construction;
(b) Equipment foundations, including concrete pads and structural supports for Container Enclosures;
(c) The step-up transformer (34.5 kV to 138 kV);
(d) The gen-tie line, consisting of approximately 1.2 miles of 138 kV overhead transmission line from the Project Site to the Western Permian 138 kV Substation;
(e) The Project switchyard and associated protection and metering equipment;
(f) Revenue metering equipment, except to the extent such metering is integral to the PCS units;
(g) Installation and erection labor at the Project Site, except for Supplier's supervisory and commissioning support personnel as provided in Section 2.4;
(h) Network upgrades at the Western Permian 138 kV Substation required by ERCOT or the applicable transmission service provider;
(i) Site security, temporary facilities, and construction utilities; and
(j) All permits and approvals related to the Project Site, construction, and operation of the Project.
Section 2.4 — Commissioning Support
Supplier shall provide qualified technical personnel on-site at the Project Site during the installation and commissioning phases of the Project to supervise Equipment integration, BMS configuration, Acceptance Testing, and initial start-up of the Equipment, at no additional cost to Buyer. Supplier's commissioning support personnel shall be available for a period of up to sixty (60) days from the date of delivery of the final Shipment (Shipment 4). Supplier's commissioning support obligations include:
(a) Technical supervision and direction of Equipment interconnection, integration, and energization activities performed by the EPC Contractor;
(b) Configuration, calibration, and optimization of the BMS, including communication interface setup with Buyer's SCADA system;
(c) Supervision and support of all Acceptance Tests in accordance with Exhibit D;
(d) Coordination with the EPC Contractor's commissioning team for integrated system testing; and
(e) Training of Buyer's designated operations and maintenance personnel (minimum three (3) days of on-site training).
Should Buyer require commissioning support beyond the sixty (60) day period, Supplier shall provide additional support at Supplier's then-current standard service rates, provided that Supplier shall not charge for additional support necessitated by Defects in the Equipment.
Section 2.5 — Spare Parts
Supplier shall provide to Buyer a list of recommended and required spare parts for the Equipment, as set forth in Exhibit E, together with unit pricing for each spare part. Buyer shall have the option, but not the obligation, to purchase the initial recommended spare parts inventory from Supplier at the unit prices specified in Exhibit E. The unit prices set forth in Exhibit E shall remain valid and available to Buyer for a period of ten (10) years from the date of this Agreement, subject to adjustment only for documented changes in raw material costs exceeding ten percent (10%) in any single calendar year, in which case the adjustment shall be limited to the actual documented increase in raw material costs.
Section 2.6 — Relationship with EPC Agreement
The Equipment supplied hereunder is included within the EPC Contract Price of Thirty-One Million Two Hundred Thousand Dollars ($31,200,000) under the EPC Agreement on a pass-through basis, with the Contract Price under this Agreement constituting a component of the EPC Contract Price. This Agreement is intended to establish a direct contractual relationship between Buyer and Supplier for the purpose of providing Buyer with direct warranty privity, direct performance obligations by Supplier, and the security and collateral assignment rights required by Lender under the Credit Agreement. In the event of any conflict between this Agreement and the EPC Agreement with respect to Supplier's obligations regarding the design, manufacture, testing, delivery, or warranty of the Equipment, this Agreement shall govern as between Buyer and Supplier. Nothing in this Agreement is intended to modify or diminish the obligations of the EPC Contractor to Buyer under the EPC Agreement.
ARTICLE 3 — REPRESENTATIVES AND COORDINATION
Section 3.1 — Cooperation
The Parties shall cooperate in good faith with each other, with the EPC Contractor (Meridian Power Construction, Inc.), and with the Lender's Engineer (Norgate Technical Advisors, Inc., attention: Dr. Phillip S. Reardon, P.E.) in connection with all matters relating to the delivery, installation, testing, and commissioning of the Equipment. Such cooperation shall include, without limitation, timely sharing of technical information, coordination of schedules, prompt responses to requests for information, and reasonable accommodation of site access and inspection requirements.
Section 3.2 — Buyer's Representative
Buyer shall designate an authorized representative in writing within ten (10) business days after execution of this Agreement. Buyer's Representative shall have authority to act on Buyer's behalf with respect to day-to-day administration of this Agreement, including approval of Documentation, coordination of delivery logistics, participation in factory and site acceptance testing, and issuance of certificates of Provisional Acceptance and Final Acceptance. All communications and notices regarding technical matters under this Agreement shall be directed to Buyer's Representative. The designation or replacement of Buyer's Representative shall be communicated to Supplier in writing and shall not require a Change Order.
Section 3.3 — Supplier's Representative
Supplier shall designate an authorized representative with full authority to act on Supplier's behalf in day-to-day matters relating to this Agreement. Supplier's Representative shall serve as the primary point of contact for all technical and logistical communications and shall have authority to make day-to-day decisions regarding Supplier's performance, subject to any limitations communicated by Supplier to Buyer in writing. Ingrid N. Harmon, Chief Executive Officer of Harmon-Dietrich Energy Solutions, LLC, shall serve as Supplier's executive contact for escalation of matters that cannot be resolved at the Representative level. The designation or replacement of Supplier's Representative shall be communicated to Buyer in writing and shall not require a Change Order.
Section 3.4 — Coordination with EPC Contractor
Supplier shall coordinate delivery logistics, on-site receiving requirements, unloading procedures, storage and staging, and commissioning activities with Meridian Power Construction, Inc. (EPC Contractor). Supplier shall participate in project coordination meetings as reasonably requested by Buyer or the EPC Contractor. Supplier acknowledges that the EPC Contractor is responsible for installation and erection of the Equipment and agrees to cooperate with the EPC Contractor to facilitate efficient and timely installation, including by providing technical guidance and supervision during installation activities as part of the commissioning support described in Section 2.4.
Section 3.5 — Lender's Engineer Access
Supplier shall provide Norgate Technical Advisors, Inc. (Lender's Engineer) and its authorized representatives with reasonable access to Supplier's manufacturing facility in Pflugerville, Texas, and to factory test data, production records, and quality assurance documentation, for purposes of Lender due diligence, ongoing construction monitoring, and independent assessment of Equipment quality and compliance with the Performance Specifications. Such access shall be provided during normal business hours upon not less than five (5) business days' prior written notice from Buyer or Lender's Engineer. Supplier shall cooperate with Lender's Engineer in responding to technical inquiries and providing requested information in a timely manner. The Lender's Engineer shall comply with Supplier's reasonable safety, security, and confidentiality requirements while on site at the manufacturing facility.
ARTICLE 4 — DESIGN AND MANUFACTURING
Section 4.1 — Design Responsibility
Supplier has sole responsibility for the design and engineering of the Equipment to meet the Performance Specifications set forth in Exhibit B. Supplier warrants that the Equipment design is fit for its intended purpose as a grid-scale battery energy storage system operating within the ERCOT market, located in Ector County, Texas, and subject to the ambient environmental conditions at the Project Site, including extreme heat conditions of up to 115°F (46°C). Supplier shall ensure that the design of the Equipment is compatible with the balance-of-plant systems to be provided by the EPC Contractor, including the step-up transformer and switchyard equipment, based on interface specifications to be exchanged between Supplier and the EPC Contractor within thirty (30) days of execution of this Agreement. Any design changes required after the exchange of interface specifications shall be subject to the Change Order process set forth in Article 8.
Section 4.2 — Manufacturing Standards
All Equipment shall be manufactured in accordance with applicable industry standards, including the following:
(a) UL 9540 — Standard for Energy Storage Systems and Equipment;
(b) UL 9540A — Test Method for Evaluating Thermal Runaway Fire Propagation in Battery Energy Storage Systems;
(c) NFPA 855 — Standard for the Installation of Stationary Energy Storage Systems;
(d) IEEE 1547 — Standard for Interconnection and Interoperability of Distributed Energy Resources with Associated Electric Power Systems Interfaces;
(e) IEEE 2800 — Standard for Interconnection and Interoperability of Inverter-Based Resources Interconnecting with Associated Transmission Electric Power Systems;
(f) NEC Article 706 — Energy Storage Systems;
(g) IEC 62619 — Secondary lithium cells and batteries for industrial applications — Safety requirements; and
(h) All other applicable federal, state, and local codes and standards, including those required by the Authority Having Jurisdiction for Ector County, Texas.
Supplier shall maintain current certifications and listings for all Equipment components requiring third-party certification and shall provide copies of all certificates and listing reports to Buyer as part of the Documentation.
Section 4.3 — Factory Acceptance Testing
Supplier shall conduct factory acceptance tests ("FATs") at its manufacturing facility in Pflugerville, Texas, prior to shipment of each Shipment. Factory acceptance tests shall include, at a minimum:
(a) Cell and module capacity testing to verify nameplate energy capacity and voltage specifications;
(b) PCS inverter efficiency testing to verify rated efficiency at partial and full load conditions;
(c) BMS functional testing to verify monitoring, protection, communication, and control functions;
(d) Thermal Management System performance testing to verify cooling and heating capacity under simulated load conditions; and
(e) Integrated system functional testing to verify interoperability of Battery Modules, PCS, BMS, and Thermal Management System within each Container Enclosure.
Buyer and Buyer's representatives, including Norgate Technical Advisors, Inc. (Lender's Engineer), shall have the right to witness factory acceptance tests upon at least ten (10) business days' prior written notice to Supplier. Supplier shall provide FAT procedures to Buyer for review at least fifteen (15) business days prior to the scheduled FAT date. Supplier shall promptly provide FAT reports to Buyer following completion of each FAT.
Section 4.4 — Documentation Deliverables
Supplier shall deliver Documentation in accordance with the following schedule:
(a) Preliminary Design Documentation: Within thirty (30) days of execution of this Agreement, Supplier shall deliver preliminary design documentation, including system architecture drawings, single-line diagrams, equipment layout drawings, interface specifications, and BMS functional descriptions;
(b) Final Design Documentation: At least thirty (30) days prior to the Scheduled Delivery Date for the first Shipment, Supplier shall deliver final design documentation, including detailed engineering drawings, wiring diagrams, BMS configuration specifications, and installation instructions; and
(c) As-Built Documentation: Within sixty (60) days after Final Acceptance, Supplier shall deliver complete as-built documentation reflecting the final, as-manufactured and as-installed configuration of all Equipment, including any modifications made during installation and commissioning.
All Documentation shall be delivered in electronic format (PDF and, where applicable, native CAD or engineering software format) and in two (2) complete sets of hard copies.
Section 4.5 — Quality Assurance / Quality Control
Supplier shall maintain a documented quality assurance and quality control ("QA/QC") program consistent with ISO 9001:2015 (or equivalent) throughout the design, manufacturing, testing, and delivery phases. Supplier shall make its QA/QC program documentation available to Buyer upon request. Buyer shall have audit rights to inspect Supplier's manufacturing processes, quality records, and testing activities at Supplier's Pflugerville, Texas facility upon reasonable advance notice (not less than five (5) business days). Supplier shall promptly address any non-conformances identified during such audits and shall maintain records of corrective and preventive actions taken.
ARTICLE 5 — DELIVERY
Section 5.1 — Delivery Terms
All Equipment shall be delivered FOB Project Site (4800 West University Boulevard, Odessa, TX 79764, Ector County, Texas). Supplier shall be responsible for all costs and risks of transportation from Supplier's manufacturing facility in Pflugerville, Texas to the Delivery Point, including freight, insurance during transit, and any permits required for overland transport. Risk of loss of, and title to, the Equipment shall pass from Supplier to Buyer upon delivery of the Equipment to the Project Site and completion of the receiving inspection described in Section 5.3, provided that passage of risk and title shall not relieve Supplier of its warranty, indemnification, or other obligations under this Agreement. In the event of damage to Equipment during transit, Supplier shall, at its sole cost and expense, promptly repair or replace the damaged Equipment.
Section 5.2 — Delivery Schedule
Equipment shall be delivered to the Delivery Point in four (4) Shipments in accordance with the Delivery Schedule set forth in Exhibit C, as summarized below:
(a) Shipment 1: On or before March 15, 2023 — Battery Modules (first tranche) and Container Enclosures (first tranche).
(b) Shipment 2: On or before April 15, 2023 — Battery Modules (second tranche) and PCS inverters (five (5) of ten (10) units).
(c) Shipment 3: On or before May 15, 2023 — Battery Modules (third tranche), PCS inverters (remaining five (5) of ten (10) units), and BMS hardware.
(d) Shipment 4: On or before June 1, 2023 — Remaining Battery Modules, Container Enclosures, Thermal Management Systems (HVAC), and all remaining components and accessories.
The Delivery Schedule has been developed in coordination with the EPC Contractor's construction schedule to enable achievement of the Guaranteed COD of September 1, 2023 under the EPC Agreement. Supplier acknowledges that the Delivery Schedule is critical to the overall Project schedule and that delays in any Shipment may cause cascading delays in installation, testing, commissioning, and achievement of COD.
Section 5.3 — Receiving Inspection
Upon delivery of each Shipment to the Delivery Point, Buyer (or the EPC Contractor on Buyer's behalf) shall conduct a visual and documentary receiving inspection within five (5) business days of delivery. The receiving inspection shall include visual examination of Equipment for external damage, verification of Equipment quantities and components against the packing list and bill of lading, and review of applicable factory test reports and certificates. Buyer shall notify Supplier in writing of any apparent damage, shortage, or non-conformity identified during the receiving inspection promptly upon discovery. Acceptance of delivery and completion of receiving inspection shall not constitute a waiver of Buyer's right to assert claims for latent Defects or non-conformities not reasonably discoverable during a visual inspection.
Section 5.4 — Packaging and Shipping
Supplier shall be responsible for all packaging, crating, and shipping of the Equipment in a manner suitable for overland transport to the Project Site, taking into account the nature of the Equipment, road conditions, and ambient environmental conditions during transit. All packaging shall provide adequate protection against damage from handling, vibration, moisture, and temperature extremes. All shipments shall be clearly marked with the following identification:
(a) Project name: "Lone Star Battery Storage Project";
(b) Shipment number (1, 2, 3, or 4);
(c) Contents manifest identifying each container, crate, or package; and
(d) Handling instructions, including orientation indicators and hazardous materials markings as required by applicable Department of Transportation regulations.
Section 5.5 — Shipping Notices
Supplier shall provide written shipping notice to Buyer and the EPC Contractor at least five (5) business days prior to the departure of each Shipment from Supplier's manufacturing facility. Each shipping notice shall include the following information:
(a) Shipment number and description of Equipment included;
(b) Carrier name and contact information;
(c) Estimated date and time of arrival at the Delivery Point;
(d) Bill of lading number;
(e) Packing list; and
(f) Any special unloading or handling requirements.
ARTICLE 6 — DELAY AND LIQUIDATED DAMAGES
Section 6.1 — Time is of the Essence
Time is of the essence with respect to the Delivery Schedule and Supplier's performance of its obligations under this Agreement. Supplier acknowledges that timely delivery of the Equipment is critical to Buyer's ability to achieve the Guaranteed COD of September 1, 2023 under the EPC Agreement and to satisfy Buyer's obligations under the Credit Agreement with Brazos River National Bank, N.A. Supplier further acknowledges that delay in delivery of the Equipment may result in significant financial harm to Buyer, including delay liquidated damages under the EPC Agreement, increased financing costs, loss of revenue from ERCOT market participation, and potential default under the Credit Agreement.
Section 6.2 — Delay Liquidated Damages
If Supplier fails to deliver any Shipment to the Delivery Point by its Scheduled Delivery Date (as such date may be extended pursuant to Section 6.3), Supplier shall pay to Buyer delay liquidated damages in the amount of Fifteen Thousand Dollars ($15,000) per day per Shipment for each calendar day of delay beyond the applicable Scheduled Delivery Date, commencing on the first day following the Scheduled Delivery Date and continuing until the date of actual delivery.
The aggregate amount of delay liquidated damages payable by Supplier under this Section 6.2 shall not exceed Nine Hundred Twenty Thousand Dollars ($920,000), representing five percent (5%) of the Contract Price ($18,400,000 × 5% = $920,000).
The Parties acknowledge and agree that the actual damages that Buyer would sustain as a result of Supplier's delay in delivery would be difficult or impossible to ascertain with precision at the time of execution of this Agreement, and that the delay liquidated damages set forth in this Section 6.2 represent a genuine pre-estimate of Buyer's anticipated damages from such delay and are not intended as a penalty. Buyer's right to receive delay liquidated damages shall be Buyer's sole and exclusive remedy for delay in delivery, except that (a) if the aggregate amount of delay liquidated damages reaches the cap set forth above, Buyer shall have the right to terminate this Agreement pursuant to Section 13.2(c), and (b) nothing herein limits Buyer's rights and remedies in respect of Defects, breach of warranty, or other failures of performance by Supplier.
Section 6.3 — Excusable Delay
The Scheduled Delivery Dates shall be extended on a day-for-day basis for delays caused by:
(a) Force Majeure Events, subject to and in accordance with Article 14;
(b) Changes in scope directed by Buyer pursuant to Article 8, to the extent such changes reasonably affect the Delivery Schedule;
(c) Buyer's failure to provide site access, Buyer-furnished items, or other information or approvals required of Buyer under this Agreement, to the extent such failure directly causes a delay in Supplier's performance; or
(d) Acts or omissions of the EPC Contractor that directly impede Supplier's ability to perform its obligations under this Agreement, including failure to provide required site readiness or receiving support,
in each case to the extent that Supplier provides prompt written notice to Buyer (within five (5) business days of becoming aware of the event causing delay) specifying the nature of the delay, the expected duration, and the Shipment(s) affected, and uses commercially reasonable efforts to mitigate the effects of the delay, including by employing alternative methods, sources, or schedules to the extent practicable.
Section 6.4 — Acceleration
If Supplier is in delay or anticipates that it will be unable to meet a Scheduled Delivery Date, Buyer may request in writing that Supplier accelerate delivery of one or more Shipments. If the delay is not an Excusable Delay, Supplier shall accelerate at Supplier's sole cost and expense, including by employing overtime, additional shifts, expedited shipping, or other measures as necessary to restore compliance with the Delivery Schedule. If the delay is an Excusable Delay, the Parties shall negotiate in good faith the allocation of acceleration costs. In no event shall Supplier be required to incur acceleration costs that are disproportionate to the benefit of acceleration.
ARTICLE 7 — TESTING AND ACCEPTANCE
Section 7.1 — Acceptance Tests
Following installation of the Equipment by the EPC Contractor and completion of commissioning support by Supplier in accordance with Section 2.4, Acceptance Tests shall be conducted in accordance with the procedures set forth in Exhibit D. The Acceptance Tests shall demonstrate that the Equipment meets the Performance Specifications, including capacity, round-trip efficiency, response time, availability, and all other parameters specified in Exhibit B. Supplier shall provide all technical support, personnel, and instrumentation necessary to conduct the Acceptance Tests. Buyer, the EPC Contractor, and the Lender's Engineer shall have the right to witness the Acceptance Tests.
Section 7.2 — Provisional Acceptance
Provisional Acceptance of the Equipment shall occur when all of the following conditions have been satisfied:
(a) The Equipment has successfully passed the Acceptance Tests in accordance with Exhibit D, demonstrating compliance with the Performance Specifications;
(b) Supplier has delivered to Buyer all Documentation required to be delivered on or before Provisional Acceptance, including factory test reports, installation manuals, and operation and maintenance manuals;
(c) Supplier has completed all commissioning activities required under Section 2.4; and
(d) Buyer has issued a written certificate of Provisional Acceptance, which certificate may identify a Punch List of minor items that do not materially affect the operation, safety, or performance of the Equipment.
Buyer shall not unreasonably withhold or delay issuance of the certificate of Provisional Acceptance when the conditions set forth above have been met. The date of issuance of the certificate of Provisional Acceptance shall constitute the date from which the Capacity Warranty Period and the Defect Warranty Period commence. Supplier shall complete all Punch List items within thirty (30) days of the date of Provisional Acceptance. Failure to complete Punch List items within such period shall not affect the date of Provisional Acceptance but shall constitute a breach of this Agreement entitling Buyer to exercise its remedies under Article 12.
Section 7.3 — Final Acceptance
Final Acceptance of the Equipment shall occur upon satisfaction of all of the following conditions:
(a) Provisional Acceptance has occurred;
(b) All Punch List items have been completed to Buyer's reasonable satisfaction;
(c) Supplier has delivered all final Documentation, including as-built drawings; and
(d) Buyer has issued a written certificate of Final Acceptance.
Buyer shall issue the certificate of Final Acceptance within fifteen (15) business days after all of the foregoing conditions have been met.
Section 7.4 — Rejection
If the Equipment fails to pass the Acceptance Tests after two (2) consecutive attempts, Buyer may, at its sole election:
(a) Require Supplier to repair, replace, or modify the Equipment at Supplier's sole cost and expense within a commercially reasonable time period to be agreed by the Parties, following which the Acceptance Tests shall be re-conducted;
(b) Accept the Equipment in its then-current condition, subject to an equitable reduction in the Contract Price to be agreed by the Parties (or, if the Parties cannot agree, to be determined in accordance with Article 17), reflecting the difference in value between the Equipment as specified and the Equipment as delivered; or
(c) Reject the Equipment and terminate this Agreement for cause in accordance with Section 13.2, in which event Supplier shall refund to Buyer all amounts previously paid under this Agreement, less a credit for the fair value (if any) of any Equipment or components that Buyer elects to retain.
The remedies set forth in this Section 7.4 are in addition to, and not in limitation of, any other rights and remedies available to Buyer under this Agreement or at law or in equity.
ARTICLE 8 — CHANGES
Section 8.1 — Change Orders
Either Party may propose changes to the scope of the Equipment, the Delivery Schedule, the Performance Specifications, or other terms of this Agreement. No change to the scope, Contract Price, Delivery Schedule, Performance Specifications, or other material terms of this Agreement shall be effective unless embodied in a written Change Order executed by both Parties substantially in the form attached as Exhibit F. Buyer shall not be obligated to pay for, and Supplier shall not be entitled to compensation for, any work performed outside the scope of this Agreement unless authorized by an executed Change Order.
Section 8.2 — Price and Schedule Adjustments
Any Change Order shall specify the adjustment (if any) to the Contract Price and the Delivery Schedule resulting from the proposed change. Within fifteen (15) business days of receiving a change request from Buyer, Supplier shall provide to Buyer a detailed proposal setting forth:
(a) A description of the proposed change and the work required to implement it;
(b) The impact on the Contract Price, with supporting cost detail and documentation;
(c) The impact on the Delivery Schedule, including the expected duration of any delay or acceleration; and
(d) Any impact on the Performance Specifications or Warranties.
Buyer shall have the right to accept, reject, or modify Supplier's proposal. If Buyer accepts Supplier's proposal, the Parties shall execute a Change Order reflecting the agreed terms.
Section 8.3 — Disputed Changes
If the Parties cannot agree on the price or schedule impact of a proposed change within thirty (30) days of Supplier's submission of its proposal, the matter shall be resolved pursuant to Article 17 (Dispute Resolution), provided that, if Buyer so directs in writing, Supplier shall proceed with the implementation of the change pending resolution of the dispute and Buyer provides reasonable assurance of payment for undisputed amounts. In such event, the Parties shall use good-faith efforts to resolve the disputed amounts expeditiously, and any adjustment to the Contract Price determined through dispute resolution shall be retroactive to the date of the Change Order.
ARTICLE 9 — CONTRACT PRICE AND PAYMENT
Section 9.1 — Contract Price
The total Contract Price for the Equipment, including all design, manufacturing, factory testing, packaging, transportation, delivery, Documentation, and commissioning support, is Eighteen Million Four Hundred Thousand Dollars ($18,400,000), fixed and firm, subject only to adjustment by Change Order executed in accordance with Article 8. The Contract Price includes all costs and expenses of Supplier in performing its obligations under this Agreement, except as otherwise expressly provided herein.
Section 9.2 — Payment Schedule
Payments of the Contract Price shall be made by Buyer to Supplier in installments as follows:
(a) Advance Payment (upon execution): Ten percent (10%) of the Contract Price — $1,840,000 — due and payable within fifteen (15) days of execution of this Agreement. As a condition precedent to Buyer's obligation to make the Advance Payment, Supplier shall deliver to Buyer an advance payment guarantee in the form of an irrevocable standby letter of credit issued by a bank reasonably acceptable to Buyer and Lender, in the amount of $1,840,000, securing Supplier's obligation to refund the Advance Payment in the event of termination of this Agreement prior to delivery of Shipment 1. The advance payment guarantee shall remain in effect until the Advance Payment has been fully earned through delivery of Equipment. The Advance Payment shall be credited against the Contract Price ratably against Shipment Payments.
(b) Manufacturing Milestone Payment: Twenty percent (20%) of the Contract Price — $3,680,000 — due and payable upon completion of manufacturing of the first tranche of Battery Modules and successful completion of factory acceptance testing for Shipment 1, as evidenced by Supplier's written notice and supporting FAT reports.
(c) Shipment Payments: Sixty percent (60%) of the Contract Price — $11,040,000 in aggregate — payable upon delivery of each Shipment to the Delivery Point in accordance with Article 5, pro rata based on the value of Equipment delivered in each Shipment as set forth in the Delivery Schedule (Exhibit C), less the ratable credit for the Advance Payment. The estimated value of each Shipment and corresponding payment amount shall be as set forth in Exhibit C.
(d) Provisional Acceptance Payment: Five percent (5%) of the Contract Price — $920,000 — due and payable upon issuance of the certificate of Provisional Acceptance in accordance with Section 7.2.
(e) Final Acceptance Payment: Five percent (5%) of the Contract Price — $920,000 — due and payable upon issuance of the certificate of Final Acceptance in accordance with Section 7.3.
Section 9.3 — Invoicing and Payment Terms
Supplier shall submit invoices to Buyer promptly upon achievement of each payment milestone described in Section 9.2. Each invoice shall include a description of the milestone achieved, supporting documentation (including FAT reports, bills of lading, packing lists, and acceptance certificates, as applicable), and the amount due. Payment shall be due within thirty (30) days of Buyer's receipt of a proper and complete invoice. Late payments shall accrue interest at the lesser of one and one-half percent (1.5%) per month (18% per annum) or the maximum rate permitted by applicable Texas law, calculated from the due date until the date of payment. Buyer shall notify Supplier within ten (10) business days of receipt of an invoice if Buyer disputes any portion of the invoice, specifying the nature and basis of the dispute in reasonable detail. Payment of any undisputed portion of an invoice shall not be withheld pending resolution of a dispute regarding the disputed portion.
Section 9.4 — Taxes
The Contract Price is exclusive of all applicable sales, use, excise, or similar taxes imposed on the sale, delivery, or use of the Equipment. Buyer shall be responsible for any sales or use tax imposed by the State of Texas or any political subdivision thereof on Equipment delivered to the Project Site. Buyer shall provide Supplier with applicable tax exemption certificates, if any, prior to or concurrent with the delivery of Equipment. Supplier shall be responsible for all taxes imposed on Supplier's income, payroll, property, and business operations. Each Party shall cooperate with the other to minimize the tax liability arising from the transactions contemplated by this Agreement to the extent permitted by law.
Section 9.5 — Right of Set-Off
Buyer may set off against amounts due to Supplier under this Agreement any liquidated damages payable by Supplier under Section 6.2, any amounts owed by Supplier to Buyer under the indemnification provisions of Section 12.1, or any other amounts owed by Supplier to Buyer under this Agreement that are then due and payable or that have been finally determined through the dispute resolution process set forth in Article 17.
Section 9.6 — Lien Waivers
Supplier shall deliver to Buyer the following lien waivers in the forms substantially as set forth in Exhibit H, consistent with the requirements of the Texas Property Code:
(a) A conditional lien waiver with each invoice, conditioned upon receipt of payment of the invoiced amount; and
(b) An unconditional lien waiver upon receipt of each payment, unconditionally waiving all lien rights with respect to the work and materials covered by such payment.
Supplier shall cause each of its Subcontractors to deliver corresponding conditional and unconditional lien waivers for work and materials provided by such Subcontractors. Delivery of lien waivers shall be a condition precedent to Buyer's obligation to make each payment under this Agreement.
ARTICLE 10 — WARRANTIES
Section 10.1 — General Warranty
Supplier warrants to Buyer that all Equipment supplied under this Agreement shall:
(a) Conform in all material respects to the Performance Specifications set forth in Exhibit B and the Documentation;
(b) Be new, of good quality, and free from Defects in design, materials, and workmanship;
(c) Be suitable for the intended use as a grid-scale battery energy storage system in Ector County, Texas, operating within the ERCOT market, and capable of performing reliably under the environmental conditions specified in the Performance Specifications;
(d) Comply with all applicable laws, codes, rules, regulations, and industry standards referenced in Section 4.2, including UL 9540, UL 9540A, NFPA 855, IEEE 1547, IEEE 2800, NEC Article 706, and IEC 62619;
(e) Be free and clear of all liens, claims, security interests, and encumbrances of any kind, and Supplier shall have good and marketable title to the Equipment at the time of delivery; and
(f) Incorporate materials, components, and manufacturing processes that are consistent with the current state of the art for grid-scale LFP battery energy storage systems at the time of manufacture.
Section 10.2 — Capacity Warranty (10-Year)
(a) Warranted Capacity. Supplier warrants that the Battery Modules shall maintain a minimum of eighty percent (80%) of Nameplate Capacity (i.e., at least 40 MW / 160 MWh) at the end of a period of ten (10) years from the date of Provisional Acceptance (the "Capacity Warranty Period"), based on normal operating conditions and in accordance with Supplier's recommended maintenance and operating guidelines. The warranted capacity degradation shall be measured against a linear degradation curve declining from one hundred percent (100%) of Nameplate Capacity at the date of Provisional Acceptance to eighty percent (80%) of Nameplate Capacity at the end of the tenth (10th) year of the Capacity Warranty Period.
(b) Annual Capacity Testing. Capacity shall be measured annually during the Capacity Warranty Period by means of capacity tests conducted in accordance with Supplier's standard capacity testing protocol, which shall be included in the Documentation. Buyer shall provide Supplier with reasonable advance notice of annual capacity tests, and Supplier shall have the right to have its representatives present during such tests.
(c) Remedies. If at any annual capacity test during the Capacity Warranty Period the measured capacity of the Battery Modules falls below the warranted level on the degradation curve for the applicable year, Supplier shall, at its sole cost and expense, within ninety (90) days of notification of such deficiency, repair, augment, or replace Battery Modules as necessary to restore the aggregate capacity of the Battery Modules to the warranted level. Replacement or additional Battery Modules shall meet the same Performance Specifications as the original Battery Modules and shall be covered by the Capacity Warranty for the remainder of the original Capacity Warranty Period.
(d) Conditions. The Capacity Warranty is subject to Buyer's compliance with Supplier's maintenance and operating guidelines, including BMS-recommended charging and discharging protocols, depth-of-discharge limitations, and operating temperature ranges. Supplier shall provide clear, written operating guidelines as part of the Documentation, and any changes to such guidelines shall be communicated to Buyer in writing with reasonable advance notice.
Section 10.3 — Defect Warranty (5-Year)
(a) Scope. Supplier warrants that all Equipment, including Battery Modules, PCS inverters, BMS hardware and software, Thermal Management System (HVAC), Container Enclosures, and all associated components, shall be free from Defects for a period of five (5) years from the date of Provisional Acceptance (the "Defect Warranty Period").
(b) Notification and Remediation. Upon notice by Buyer of a Defect during the Defect Warranty Period, Supplier shall, at its option and sole cost and expense, repair or replace the defective Equipment or component within a commercially reasonable time. If the Defect renders the Equipment or a material portion thereof inoperable, or if the Defect presents a safety risk, Supplier shall commence remedial action within seventy-two (72) hours of receipt of Buyer's notice and shall proceed with such remedial action on a continuous, expedited basis until the Defect is corrected. For Defects that do not render the Equipment inoperable or present a safety risk, Supplier shall commence remedial action within fifteen (15) business days of receipt of Buyer's notice.
(c) Warranty Restart. Any Equipment or component that is repaired or replaced under this Section 10.3 shall carry a new Defect Warranty for the remainder of the original Defect Warranty Period or twelve (12) months from the date of completion of the repair or replacement, whichever period is longer.
(d) Access. Buyer shall provide Supplier with reasonable access to the Project Site and the Equipment for purposes of performing warranty repairs or replacements.
Section 10.4 — PCS and BMS Warranty
(a) PCS Warranty. Supplier warrants that the PCS inverters shall be free from Defects and shall conform to the Performance Specifications for a period of five (5) years from the date of Provisional Acceptance. The PCS warranty shall be subject to the same terms and conditions as the Defect Warranty set forth in Section 10.3.
(b) BMS Warranty. The BMS warranty shall be coterminous with the Defect Warranty Period (five (5) years from Provisional Acceptance) and shall include Supplier's obligation to provide firmware updates, bug fixes, and security patches for the BMS software during the Defect Warranty Period at no additional cost to Buyer. Supplier shall notify Buyer of available firmware updates within thirty (30) days of release and shall provide installation support as reasonably requested by Buyer.
Section 10.5 — Exclusions from Warranty
The Warranties set forth in this Article 10 shall not apply to, and Supplier shall have no liability for, Defects, failures, or performance degradation arising from:
(a) Misuse, abuse, or negligence by Buyer, the EPC Contractor, or any third party;
(b) Unauthorized modification, alteration, or repair of the Equipment by any person other than Supplier or Supplier's authorized representatives;
(c) Failure by Buyer to follow Supplier's maintenance, operating, and storage guidelines as set forth in the Documentation;
(d) Normal wear and tear consistent with the expected service life and operating conditions specified in the Performance Specifications;
(e) Force Majeure Events; or
(f) Damage to the Equipment during installation or erection at the Project Site that is not caused by Supplier's acts, omissions, or the acts or omissions of