SERVICE TERMS AND CONDITIONS
(For U.S. only)
1. Payment Terms. Price is determined as quoted on the first page of the Servicing Agreement, and payment terms are determined as indicated on the first page of the Servicing Agreement, unless agreed upon in writing elsewhere. Price for materials, if not stated in writing, shall be determined by the Contractor, and subject to change without notice to Customer. Fuel surcharges will be assessed to Customer, the cost of which will be determined by the Contractor. All prices exclude tax, which shall be added unless Customer provides documentation that, in Contractors sole discretion, makes the Customer exempt from such taxes. Any payments made by credit card shall be accompanied by a 3% surcharge. Contractor shall assess a 1% service charge each month for any payments not made when due.
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2. Layout Approval. A proposed layout and installation flow diagram may be provided by Contractor to Customer prior to execution of this agreement. Customer's acceptance of this agreement shall also be deemed an acceptance of Contractor's proposed layout, if one is provided.
3. Delivery and Time of Performance. Unless otherwise agreed upon in writing, all shipments will be delivered by Contractor FOB origin. Title and risk of loss for damage passes from Contractor to Customer upon Contractor's delivery of any shipments to carrier. Customer shall be deemed to have accepted the condition of the delivered products unless Customer states an objection, in writing, within three (3) days of receipt of shipment. Delivery dates and time of performance are estimates only, and time of performance is determined by Contractor, in Contractor's sole discretion. Contractor shall perform services during normal business hours. Customer is responsible for disposal of refuse generated by services, and Customer is responsible for providing Contractor adequate parking.
4. Cancellation or Change request. No changes or cancellation of the Agreement may be made without the Contractor's agreement, in writing. Customer shall pay Contractor twenty percent (20%) of the Total Price of the Agreement if Customer and Contractor agree to cancel the Agreement prior to Contractor performing any services. Any requested product returns are subject to Contractor's sole discretion.
5. Force Majeure. Neither Contractor nor Customer shall be liable to the other for failure to perform any services/covenants of this Agreement due to acts of god, including but not limited to fires, natural disaster, material shortage, strikes, government orders or directives, acts of war, or any other circumstances beyond the reasonable control of such party. Contractor may, at it's sole discretion, suspend performance or terminate this Agreement in such circumstances.
6. Limited Warranties and Limitations of Warranty. Contractor warrants that all services will be performed with reasonable skill and care. Services are warranted for ninety (90) days from date of performance. Any products/parts used are warranted ninety (90) days from date of installation. Any damages caused by or in association with any of the following shall invalidate any such warranty: (1) External causes including but not limited to vandalism, acts of god, power failure; (2) abuse, misuse or neglect; (3) usage of the product for any purpose other than it's intended purpose; (4) servicing or repair not done or authorized by Contractor. Notice of any such defect must be made to Contractor in writing within three (3) days of discovery of the defect. Contractor's sole liability under warranty shall be, at Contractor's option: (1) replace or repair the product or re-perform the services; or (2) refund or credit the cost of the product or services.
7. LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES SHALL CONTRACTOR BE RESPONSIBLE OR LIABLE FOR ANY LOSS, COST, OR DAMAGES ARISING FROM ANY SOURCE WHATSOEVER, INCLUDING NEGLIGENCE, IN EXCESS OF THE PURCHASE PRICE PAID BY CUSTOMER FOR THE SPECIFIC EQUIPMENT OR WORK WHICH GIVES RISE TO THE LOSS, COST OR DAMAGE. UNDER NO CIRCUMSTANCES, WHETHER ARISING IN CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL CONTRACTOR, ITS AGENTS, SUBCONTRACTORS, VENDORS, AND THE EMPLOYEES OF EACH BE RESPONSIBLE OR LIABLE FOR LOSS OF PROFIT, LOSS OF OPERATING TIME OR LOSS OF, OR REDUCTION IN USE OF, ANY FACILITIES, (INCLUDING EXISTING FACILITIES) OR ANY PORTION THEROF, INCREASED EXPENSE OF OPERATION OR MAINTENANCE, OR FOR ANY SPECIAL INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
8. Indemnity. To the fullest extent permitted by law Customer shall indemnify, defend and hold harmless Contractor and it's agents, employees, members, successors and assigns, from any and all claims related to Customer's breach of this agreement including negligence or failure to abide by applicable laws, regulations, or modification, servicing or repairs to any products not approved by Contractor, misuse of any Products.
9. Independent Contractor Status. Contractor is an independent contractor, and no terms of this Agreement shall be deemed to have created a partnership or joint venture with Customer. Neither party is a legal representative of either party, and each party is responsible for the direction and compensation and actions of employees and agents. Customer shall not use Contractor's name, or any trademarks or copyrights, for any purpose.
10. Confidentiality. Customer agrees that all information furnished by Contractor is Contractor's proprietary property and Customer shall hold such information in confidence and not use or disclose such information without Contractor's prior written consent.
11. Venue, Attorney Fees, and Waiver of Jury Trial. By execution of this agreement, the parties consent to the exclusive venue of either the Macomb County Circuit Court or the 42-1 District Court in Romeo, depending on meeting the jurisdictional thresholds, of any action brought to enforce the terms of this agreement or to collect any moneys due under it. Customer agrees to pay Contractor's reasonable attorney fees and court costs for any disputes or collection efforts arising from the subject matter of this Contract. The Parties hereby agree to waiver the right to a jury trial in any action arising in connection with this contract. Any actions brought by Customer must be made within one (1) year of the date of services, or, for billing disputes, one (1) month within the date of applicable invoice, or such claims are deemed waived by Customer.
12. Entire Agreement, Binding on Successors. These Terms and Conditions, together with the quotation documents attached hereto, if any, shall constitute the entire agreement of the parties and may not be modified except by a written change order issued by Contractor and signed by both parties. It is further agreed that the obligations hereof shall bind and apply to the heirs, successors or estates of the parties. The Customer warrant(s) the he is (they are) the Customer(s) of the mentioned property and the legal title thereto stands of record in his (their) name(s). If more than one person signs as Customer, both persons signing are responsible for the contract, jointly and severally. If only one spouse signs as Customer, that spouse represents to Contractor that the other spouse has granted authority to sign for him/her to the other spouse. Receipt of a copy of this contract is hereby acknowledged. It is further acknowledged by the Customer that the forgoing provisions have been read and the contents thereof understood and that no representation or agreement not herein contained shall be binding upon the parties and that all of the agreements and understandings of said parties are contained herein.