GENERAL TERMS AND CONDITIONS
PRODUCTS AND SERVICES
GENERAL TERMS AND CONDITIONS
PRODUCTS AND SERVICES
1.Acceptance and Entire Terms and Conditions. All services performed, including but not limited to scheduled, remedial and emergency services or products (equipment, batteries, or parts) sold or delivered separately or as part of performing services sold by ON COMPUTER SERVICES, LLC, dba “Unified Power”(herein defined as“UNIFIED”), as well as by third party vendors and/or service providers of UPSI, on behalf of or to the CUSTOMER (“Customer”) named in the attached Proposal (the “Proposal”) shall be subject to these Terms and Conditions. If services are being supplied pursuant to Customer’s purchase or work order, UPSI’s acceptance of said purchase or work order is expressly conditioned on Customer’s acceptance of these Terms and Conditions. Any of the provisions of Customer’s purchase or work order which attempt to impose terms and conditions at variance with these Terms and Conditions shall not be binding on UPSI and shall not be considered applicable to the services contemplated by the Proposal. Neither commencement of performance nor delivery by UNIFIED shall be considered or construed as acceptance of Customer’s supplemental or conflicting terms and conditions. UNIFIED’s failure to object to conflicting or added terms will not change or add to the terms of this agreement. A customer’s acceptance of the products and/or services from UNIFIED shall be considered to constitute acceptance of the terms and conditions contained herein. The terms and conditions set forth hereinafter apply for the following four categories of equipment service: a. Start-up of equipment; b. Equipment installation; c. Preventive and/or corrective maintenance contract services; d. Non-warranty emergency or other services ordered by the Purchaser as needed. All work involving UNIFIED service personnel for the installation, checkout, test and cutover activities should be scheduled for consecutive weekdays, the complete installation to be completed in one trip by the UNIFIED Service Representative. Work performed on non-consecutive days, or requiring additional trips weekend, holiday, or nighttime work will be invoiced at the prevailing rates.
2. Delivery, Delays. Any service completion date or product or service delivery date specified on the face hereof is approximate and is not a guarantee of a particular day of completion of the services to be performed hereunder or delivery of the products, and such dates are based upon prompt receipt of all necessary information from the Customer. Under no circumstances shall UNIFIED be liable for damages for any delay or failure to perform the services or deliver the product or services as scheduled if such delay or failure is occasioned in whole or in part by reason of force majeure, or any other causes or circumstances beyond UNIFIED’s reasonable control or which UNIFIED by reasonable diligence could not have avoided.
3. Warranty and UNIFIED’s Limitation of Liability. UNIFIED’s sole warranty pursuant to these Terms and Conditions shall be that all services performed shall be performed in a competent manner, and that any products or services provided hereunder and any incidental materials and consumables utilized in the performance of the proposed services will be new or like new and free from defects in workmanship and will conform to the applicable drawings and specifications. If Customer identifies any failure of UNIFIED to meet the above stated warranty within thirty (30) days from the date such service or installation of such products or services (or for any longer warranty period provided by a product manufacturer, which warranty shall be passed directly to Customer), Customer must immediately notify UNIFIED in writing. Any such claims of Customer shall not be cause for the cancellation of the Proposal or these Terms and Conditions. The customer agrees, at all times, to follow all UNIFIED’ installation, operation and maintenance instructions; to provide the proper environment, electrical connections and other requirements of the equipment as specified by UNIFIED; to provide access to the equipment to enable UNIFIED to perform maintenance; to provide adequate work space; and to provide at no cost at least one person to be within sight of UNIFIED service personnel at all times when work is being performed on energized equipment solely for the safety of UNIFIED service personnel
EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION 3, UNIFIED MAKES NO WARRANTY, EXPRESS OR IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS, OR TITLE ARE EXTENDED BY UNIFIED, OR MAY BE EXTENDED BY CUSTOMER, TO ANY THIRD PERSON. NOTWITHSTANDING ANYTHING IN THIS CONTRACT OR OTHERWISE TO THE CONTRARY, UNIFIED SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, AGGRAVATED, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS, GOODWILL, USE, REVENUE, LOST SALES,, INJURY TO PERSON OR PROPERTY, OR OTHER INDIRECT LOSS IN CONNECTION WITH OR ARISING OUT OF: (I) WARRANTY, CONTRACT, NEGLIGENCE OR OTHERWISE RELATED TO A PRODUCT OR (II) THE PERFORMANCE OF ANY SERVICE, WHETHER OR NOT THE POSSIBILITY OF DAMAGE WAS DISCLOSED TO UNIFIED OR COULD HAVE BEEN REASONABLY FORESEEN BY UNIFIED.
IN NO EVENT SHALL UNIFIED’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO UNIFIED PURSUANT TO THE APPLICABLE INVOICE.
4.Indemnity. UNIFIED shall defend, indemnity and hold harmless Customer, its directors, officers, employees, agents representatives, shareholders, successors and permitted assigns from and against any and all claims, liabilities, damages, demands, losses, deficiencies, penalties, costs, interest, awards, judgments, causes for action and suits, including reasonable legal fees incident thereto, to the extent they result directly from or out of (1) any injury to or death of any person or damage to or destruction of any property caused directly by the negligence acts, errors, omissions or willful misconduct of UNIFIED, its agents, employees, directors, officers, representatives, shareholders, successors or permitted assigns, and (2) any violation of federal, provincial, or territorial laws, regulations, codes, orders, rules or of any other governmental authority having jurisdiction by UNIFIED, its employees or agents. Notwithstanding anything in this agreement or otherwise to the contrary, UNIFIED will not be liable for any indirect, incidental, special or consequential damages, such as, but not limited to, loss of anticipated profits, goodwill, or other economic loss in connection with, or arising out of the existence of, the furnishing, functioning, or the Purchaser’s use of any item of equipment or services provided for in this Agreement, whether or not the possibility of damage was disclosed to UNIFIED or could have been reasonably foreseen by UNIFIED.
5. Force Majeure. UNIFIED is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond UNIFIED’s reasonable control including, but not limited to, acts of God, extreme weather, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), epidemics, pandemic, quarantine restrictions, threats or acts of terrorism, riot, national emergency, revolution, insurrection, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), telecommunication breakdown, power outage, delays in transportation or inability to obtain labor, materials or products through its regular sources, which shall be considered as an event of force majeure excusing UNIFIED from performance and barring remedies for non-performance. In an event of force majeure condition, the UNIFIED’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting UNIFIED to any liability or penalty. UNIFIED may, as its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Customer.
6. Returns. Products may be returned to UNIFIED only after receipt by Customer of written authorization and shipping instructions from UNIFIED signed by its authorized agent.
7. Cancellations. All requests for cancellation must be made in writing by Customer, and orders or service contracts shall not be cancelled without the prior written consent of UNIFIED signed by an authorized agent of UNIFIED. Orders for products or services in process or completed at the time Customer’s cancellation is received by UNIFIED are subject to cancellation charges up to the invoice value of the products or services.
8. Price. All prices stated in UNIFIED’s Proposal or in the attached rate sheets will be maintained for services performed within thirty (30) days from the date of the Proposal unless extended by UNIFIED at its sole option. Prices stated herein do not include installation, freight and handling charges, unless such item is specifically listed and priced in the agreements between UNIFIED and Customer. Prices for all services in the covered categories will be the prevailing rate upon the completion of those services, unless the prices therefore are otherwise fixed by written agreement. The Purchaser will be invoiced for correction of all equipment damage and installation errors discovered during the furnishing of start-up services, except when UNIFIED has installed or supervised the installation of the equipment and such damage is caused directly and solely by the acts or omissions of UNIFIED
9. Payment. Unless otherwise specifically provided in the Proposal, invoices for performance of any non-contract services will be processed upon completion of the service. Invoices for all products not sold as part of a service will be processed upon shipment of the products to Customer. Payment of all invoices is due within thirty (30) days from the date of the invoice. Payment to UNIFIED by Customer will not be contingent on third party payments to Customer. Any payment not made when due shall be subject to a one and one half percent (1-1/2%) service charge per month which will be added to all balances past due, which is an annual rate of eighteen percent (18%). In addition, an amount equal to twenty percent (20%) of the service price will be added to all outstanding principal balances which are more than thirty (30) days past due if, in the sole opinion of UNIFIED, it is necessary to utilize the services of a lawyer and incur related expense in the collection of the account and such additional amount shall be an obligation of Customer. In the event that UNIFIED in its sole opinion shall decide it is necessary to file court action in order to collect any outstanding balance, then Customer shall be obligated to reimburse UNIFIED for all legal fees and court costs.
10. Default. The following specific conduct shall be considered a default under these Terms and Conditions:
1. Failure to pay when due any amounts pursuant to any of the agreements between UNIFIED and Customer.
2. The Customer becomes insolvent, files a petition for bankruptcy or the filing of a bankruptcy proceeding by or against Customer or attachment or garnishment proceedings commenced against Customer which is not dismissed within thirty (30) days after the date of filing.
3. Any breach of the terms of these Terms and Conditions or any other agreements between UNIFIED and Customer, other than as set for the in subsection 1 or 2 of this Section 8 and such default continues for twenty (20) days after written notice thereof by the party not in breach, such continuing breach shall constitute a default by the breaching party.
Upon an event of default by Customer pursuant to subsection 1 or 2 of this paragraph, or if the financial responsibility of Customer shall become impaired or shall be deemed unsatisfactory by UNIFIED for any reason, or if Customer shall default under any of its agreements between UNIFIED and Customer, then in such case (i) upon demand by UNIFIED, Customer shall provide satisfactory security or advance cash payment and performance of services or delivery of products may be withheld by UNIFIED until such security or payment is received; (ii) UNIFIED may declare all of Customer’s outstanding indebtedness to UNIFIED immediately due and payable; and/or (iii) UNIFIED shall have the option to immediately withhold deliveries and suspend performance and to resume deliveries and performance when it deems appropriate or declare the transaction between UNIFIED and Customer void and, upon such an event, UNIFIED shall have no further duties or obligations to Customer whatsoever and will retain all amounts paid by Customer. Acceptance by UNIFIED at any time of less than the full amount due UNIFIED shall not be deemed to constitute a waiver of any of UNIFIED’s rights hereunder. UNIFIED’s rights under this Section of the Terms and Conditions are in addition to all rights available at law or in equity to UNIFIED.
In the event of an uncured default by either party, pursuant to section 3 of this paragraph, the non-defaulting party shall have the right to declare the remaining term of the relationship between UNIFIED and Customer void.
11. Taxes. In addition to any price specified herein, Customer shall pay, or reimburse UNIFIED for the gross amount of any and all taxes that are associated with this transaction unless Customer has furnished UNIFIED with evidence of exemption acceptable to the taxing authorities in advance of this transaction.
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12. Governing Law. These Terms and Conditions shall be construed and enforced in accordance with the laws of the State of Delaware, U.S.. Any actions, claims, litigation, proceeding, or suits (whether in law or equity) arising out of or relating to these Terms and Conditions, or the alleged breach thereof, shall be brought only in federal courts located in Wilmington, Delaware and Customer hereby waives its rights, if any, to bring such actions, claims, litigation, proceeding, or suits in any other courts. The parties hereby submit themselves to the exclusive jurisdiction of the federal courts located in Delaware, for the enforcement of this provision and for the enforcement of any judgment rendered by such courts.
13. No Assignment. This Terms and Conditions and its terms shall be binding upon and shall inure to the benefit of the parties hereto, their respective successors and assigns except that neither these Terms and Conditions nor any interest or obligation hereunder shall be assignable or transferable by Customer, in whole or in part, without the prior written consent of UNIFIED. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
14. Severability. If any provision or paragraph of these Terms and Conditions is determined to be illegal or unenforceable, it shall not affect the enforceability of any other provision or paragraph of these Terms and Conditions and the Terms and Conditions shall be construed in all respects as if such invalid or unenforceable provisions were omitted.
15. Holiday Scheduling. UNIFIED recognizes nine (9) holiday events each year (“Holidays”) and there shall be no scheduled maintenance performed by UNIFIED on Holidays. Accordingly, scheduled maintenance rates and availability during Holidays are subject to adjustment. UNIFIED will notify Customer in advance of any conflicts between UNIFIED’s Holiday schedule and Customer’s scheduled maintenance, and such scheduled maintenance shall be rescheduled at a time mutually agreeable to UNIFIED and Customer. Holiday restrictions are not applicable to emergency call-out service, but rates may be adjusted.
16. Notice. Any notice, writing or other communication required or permitted to be given under the terms of these Terms and Conditions shall be in writing and sent to the addresses of UNIFIED and/or Customer set forth in the agreement(s) between UNIFIED and Customer by one or more of the following methods: (a) by personal hand delivery; (b) by certified or registered mail by the U.S. Postal Service, postage prepaid, return receipt requested; or (c) by a nationally recognized overnight express mail service. If mailed by the U.S. Postal Service, the notice period shall be deemed to begin two (2) days following the date on which that notice is mailed.
17. General Provisions.
a. Unless otherwise specified by UNIFIED, any quotation or proposal of UNIFIED shall expire thirty (30) days from the date of issuance and may be modified or withdrawn at any time prior to the date of Customer’s formal written acceptance.
b. UNIFIED reserves the right to subcontract any of the work to one or more subcontractors.
c. For sales of products (equipment/parts/materials) with installation, UNIFIED shall retain the right to bill for products separately from labor if installation is delayed by Customer.
d. Any information, suggestions or ideas transmitted by Customer to UNIFIED in connection with performance hereunder are not to be regarded as secret or submitted in confidence except as may be otherwise provided in a writing signed by a duly authorized agent of UNIFIED.
e. The sale of any products or services ordered by the Customer which are not included within the scope of UNIFIED’s Proposal or other agreements with Customer is expressly conditioned upon these Terms and Conditions. Terms and conditions included in the UNIFIED’s Proposal, where not in conflict with the terms included herein, shall be incorporated by reference. Any additional or different terms and conditions set forth in the Customer’s purchase order or similar communication are expressly objected to and will not be binding upon UNIFIED unless specifically agreed to in writing by an authorized agent of UNIFIED.
f. The parties to these Terms and Conditions specifically agree that in the event that any provision of these Terms and Conditions is found, by a court of competent jurisdiction, to be unenforceable under Delaware law, such provision(s) shall be waived, to the full extent permitted by law, without invalidating the remaining provisions of the Terms and Conditions.
g. All subheadings as used herein shall be descriptive only and shall not have any substantive meaning whatsoever.
h. To the extent that any provisions of these Terms and Conditions conflict with or are inconsistent with the terms as stated in the body of the Proposal attached hereto, then the terms of the Proposal shall prevail.
i. The parties hereto covenant and warrant that the persons executing any agreement between UNIFIED and Customer have been duly authorized to execute said agreement, and the agreement and these Terms and Conditions constitute a valid and legally binding obligation of the parties hereto.
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