1) MAINTENANCE SERVICES: Company agrees to provide preventative maintenance (”Maintenance Services”) for the Equipment described herein, or in any other Company-accepted order form (“Order”). Company shall also notify Customer of any needed repairs to the Equipment and, upon request of Customer, shall perform such repairs at a preferred response basis. Replacement parts and labor shall be paid for by Customer at Company’s then prevailing prices unless otherwise agreed to in a separate agreement or repair authorization between the parties.
2) MAINTENANCE FEE: Customer agrees to pay to Company, its agents, or assigns, the total payment set forth in the Order (”Maintenance Fee”), payable in advance for the Maintenance Services.
3) TERM AND RENEWAL: This Agreement shall be for the term specified in the Order and, upon expiration, shall automatically renew from year-to-year, unless terminated by either party with at least thirty (30) days written notice before the expiration of the then current term. The rate for each year may increase no more than five percent (5%) than the previous year, or any other rate specified by Company in writing or by invoice insert. Notwithstanding the foregoing, following expiration of any promotional or introductory Maintenance Fee, the renewal rate shall be at Company’s then current rate.
4) RECEIPT OF COPY: CUSTOMER ACKNOWLEDGES RECEIPT OF A COPY OF THIS AGREEMENT.
5) COMPANY’S LIABILITY/DISCLAIMER OF WARRANTIES: CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY HAS MADE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE CONDITION OF THE EQUIPMENT, MAINTENANCE SERVICES OR ANY OTHER EQUIPMENT OR RELATED PRODUCT. COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT ANY AFFIRMATION OF FACT OR PROMISE SHALL NOT BE DEEMED TO CREATE AN EXPRESS WARRANTY, AND THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FACE OF THIS AGREEMENT. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS READ AND UNDERSTANDS ALL TERMS HEREUNDER, PARTICULARLY THOSE PARAGRAPHS SETTING FORTH COMPANY’S MAXIMUM LIABILTY IN THE EVENT OF ANY LOSS OR DAMAGE TO PERSON OR PROPERTY.
6) EQUIPMENT INCLUDED: This Agreement applies only to the Equipment as set forth on the Order and specifically excludes fixtures in which they are contained, hardware, ducts, plumbing, electrical wiring, pans, defrost heater, nor to deterioration of housing, frames or other items due to corrosion or any other cause. If repairs or alterations or additions to structure or property are agreed to by the parties, Customer will obtain written consent of the property owner prior to the performance of such work and Company shall have no duty to inquire as to same.
7) OBLIGATIONS OF CUSTOMER: Customer agrees to promptly notify Company of any unusual Equipment activity and any suspected malfunction or defect in the Equipment. In the event Customer moves or relocates Equipment without the prior written consent of Company, Company, at its option, may cancel this Agreement or refuse to service the Equipment so moved or relocated without any refunds to Customer.
8) WATER DAMAGE: Company assumes no liability for any damages caused by water or substances due to overflow or obstruction of any drain or otherwise. Customer understands that if the Equipment requires the use of water, either re-circulated or otherwise, the water thus used may be or may become contaminated or cause corrosion. As neither the extent nor nature of such contamination or corrosion can be predicted in advance, Company hereby assumes no liability for either quality or condition of the once-used water or for any damage that it may cause to the Equipment, person, or property.
9) STANDARDS OF WORKMANSHIP: The standard of workmanship hereunder shall be that which is reasonable and customary in the industry.
10) DISCLAIMER OF WARRANTIES OF COMPANY: COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, TREBLE, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL, ARISING IN CONNECTION WITH THIS AGREEMENT, EQUIPMENT, RELATED PRODUCTS, DOCUMENTATION AND/OR THE INTENDED USE THEREOF, UNDER ANY THEORY OF TORT, CONTRACT, INDEMNITY, WARRANTY OR STRICT LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY SHALL NOT BE LIABLE FOR THE NON-OPERATION OR MALFUNCTION OF THE EQUIPMENT, INCLUDING DAMAGE TO PROPERTY OR PERSONAL INJURY CAUSED BY THE EQUIPMENT, UNLESS DUE SOLELY TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF COMPANY IN PROVIDING THE MAINTENANCE SERVICES. ANY WRITTEN EXPRESS WARRANTIES GIVEN BY THE COMPANY HEREIN ARE IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED. COMPANY’S SOLE RESPONSIBILITY RELATED TO ANY EQUIPMENT INSTALLED BY COMPANY, WITHIN THE TERM OF THE MANUFACTURTER’S WARRANTY, SHALL BE TO REPAIR OR REPLACE SUCH EQUIPMENT IN THE EVENT OF FAULTY OPERATION OR MALFUNCTION OF SAID EQUIPMENT AND SHAL BE LIABLE FOR NO OTHER DAMAGES EXCEPT AS SPECIFIED HEREIN.
11) LIMITED WARRANTY: During the term of this Agreement, and provided that Customer provides access to the Equipment when requested by Company, Company warrants that the Equipment will be maintained in a good and workmanlike manner subject to the limitations set forth below. The limited warranty described herein does not include efforts to remedy, repair or replace as a result of: (i) accident or neglect; (ii) problems relating to or residing in other equipment or services with which the Equipment is used; (iii) use of the Equipment in an environment, in a manner or for a purpose for which it was not designed; (iv) problems relating to or residing in the power supply or other circuitry; (v) installation, modification, alteration or repair of the Equipment by anyone other than Company or the manufacturer; and (vi) problems with the unstable condition of the Equipment due to age or obsolescence. Company shall not be liable for any damages whatsoever which are occasioned by defective design, defective materials, defective operation or malfunctions of the Equipment.
12) COMPANY IS NOT AN INSURER; LIMITATION OF LIABILITY: WITHOUT LIMITATION OF THE PROVISIONS HEREIN, THE TOTAL LIABILITY OF COMPANY, TO CUSTOMER IN CONNECTION WITH THE MAINTENANCE SERVICES UNDER THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF (i) DIRECT DAMAGES PROVEN BY CUSTOMER OR (ii) THE ANNUAL MAINTENANCE FEE PAID BY CUSTOMER FOR THE APPLICABLE TERM WHERE SUCH CLAIM OR CAUSE OF ACTION AROSE. COMPANY SHALL NOT BE LIABLE FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY CUSTOMER’S USE OF REASONABLE DILIGENCE. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. CUSTOMER ACKNOWLEDGES AND ACCEPTS THE REASONABLENESS OF THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY. THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY IF LOSS OR DAMAGE, IRRESPECTIVE OF CAUSE OR ORIGIN, RESULTS DIRECTLY OR INDIRECTLY TO PERSON OR PROPERTY, FROM PERFORMANCE OR NONPERFORMANCE, OF THE OBLIGATIONS IMPOSED BY THIS AGREEMENT, OR FROM NEGLIGENT ACTS OR OMISSIONS OF COMPANY, ITS AGENTS, SERVANTS, ASSIGNS OR EMPLOYEES. HOWEVER, NOTHING IN THIS SECTION SHALL LIMIT COMPANY’S LIABILITY: (A) IN TORT FOR ITS WILLFUL OR INTENTIONAL MISCONDUCT, OR (B) FOR BODILY INJURY OR DEATH PROXIMATELY CAUSED BY COMPANY’S NEGLIGENCE, OR (C) LOSS OR DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSED SOLELY BY COMPANY’S GROSS NEGLIGENCE.
13) THIRD PARTY INDEMNIFICATION: Customer agrees to and shall indemnify, defend and hold harmless Company, its employees and agents from and against all claims brought by parties other than the parties to this Agreement. This provision shall apply to all claims, regardless of cause, including Company’s performance or failure to perform, defects in products, design, initial connection, inspections, tests, repair service, or non-operation of the Equipment.
14) HAZARDOUS SUBSTANCES: If Company encounters a hazardous substance, such as asbestos or any other substance which Company in its sole and reasonable discretion determines to be hazardous while performing Maintenance Services hereunder, Company may refuse to perform such Maintenance Services until such time as Customer retains a licensed abatement contractor to remove or contain such hazardous substance and such hazardous substance is actually removed or contained. In the event Company refuses to perform the Maintenance Service or any portion thereof under this Agreement, Company shall refund a pro-rated portion of the Maintenance Fee.
15) FORCE MAJEURE: Company assumes no liability and shall not be deemed to be negligent, at fault or liable in any respect for any delay or failure in performance resulting from Federal, State or Municipal actions or regulations, strikes or other labor disputes, fires, embargoes, earthquakes, storms, accidents, pandemics, power failures, negligence, acts of God, acts of Customer or any third parties, freeze-ups of any kind, or any other causes contingent to or circumstances beyond the control of Company and/or which make the fulfillment of this Agreement impractical. Upon removal of the cause of such failure or interruption, performance shall be resumed pursuant to the terms as set forth herein in a commercially reasonable manner.
16) DESTRUCTION OF EQUIPMENT: This Agreement may be suspended or cancelled, without notice, at the option of Company, if the Equipment is destroyed by fire or other catastrophe or is substantially damaged to the point that it is impractical to continue Maintenance Services or in the event Company is unable to render services due to force majeure.
17) DEFAULT BY CUSTOMER: Either party may terminate this Agreement for Cause. As to payment of invoices, “Cause” shall mean the Customer’s failure to pay any invoice within ten (10) days after the date of the invoice. For all other matters, Cause shall mean a breach by the other party of any material provision of this Agreement, provided that written notice of the breach has been given to the breaching party, and the breach has not been cured within ten (10) days after delivery of such notice. If any proceeding in bankruptcy, receivership or insolvency shall be commenced by or against Customer or his property, or if Customer makes any assignment for the benefit of creditors, Company shall have the right to discontinue Maintenance Services and recover from Customer all sums Company may be entitled to under law or equity.
18) BENEFIT OF AGREEMENT: Customer acknowledges that this Agreement, and particularly those relating to Company’s limited liability, disclaimer of warranties, and third-party indemnification inure to the benefit of and are applicable to any assignees, and/or subcontractors, and that they bind Customer with respect to said assignees and/or subcontractors with the same force and effect as they bind Customer to Company.
19) LIMITATIONS ON ACTIONS; WAIVER OF JURY TRIAL: BOTH PARTIES AGREE THAT NO SUIT OR ACTION THAT RELATES IN ANY WAY TO THIS AGREEMENT (WHETHER BASED UPON CONTRACT, NEGLIGENCE OR OTHERWISE) SHALL BE BROUGHT AGAINST THE OTHER MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF THE CAUSE OF THIS ACTION THEREFOR UNDER ANY LEGAL THEORY. IN ADDITION, BOTH PARTIES HEREBY WAIVE ANY RIGHTS TO A JURY TRIAL IN ANY JUDICIAL ACTION BROUGHT BY EITHER PARTY WHICH RELATES IN ANY WAY TO THIS AGREEMENT (WHETHER BASED UPON CONTRACT, NEGLIGENCE OR OTHERWISE).
20) CONFLICTING DOCUMENTS: This Agreement and Company accepted Order(s), and/or other forms supplied by Company constitute the entire understanding between the parties concerning the subject matter hereof. No prior or contemporaneous representations, expressions, or agreements, either written or oral, or any handwritten modifications, any course of dealing, usage of trade or course of performance under this or other agreements shall alter the terms of this Agreement. Except as otherwise provided herein, modification or amendment to this Agreement shall not be valid or effective unless in writing and signed by both parties hereto. The invalidity or non-enforceability of any particular provision of this Agreement shall not affect the other provisions, which shall be valid and enforceable to the fullest extent permitted by law. No waiver of any of the provisions of this Agreement shall be binding unless it is in writing and signed by the party granting the waiver.
21) SIGNATURE AUTHORIZATION: Customer represents and warrants to Company that it has full authority to execute this Agreement and that it is the owner of, or has obtained written permission from the owner of, the Equipment that is the subject of this Agreement.
22) APPLICABLE LAW: This document shall, in all respects, be governed by the laws of the State of Florida applicable to agreements executed and to be wholly performed within the State of Florida and venue for any action or arbitration between Company and Customer for any reason shall be in Pasco County, Florida.
23) ATTORNEY’S FEES AND COSTS: In the event any action or arbitration is instituted by a party hereto to enforce any of the terms or provisions hereof, the prevailing party in such action or arbitration shall be entitled to such reasonable attorney’s fees, costs and expenses (including the cost of the arbitrator) as may be fixed by the Court or arbitrator.
24) CONDENSATE LEAKS: Condensate drains may clog at any time due to the natural occurrence of debris in the air stream and system. This Agreement is not a guarantee against condensate leaks. Customer is encouraged to monitor drains monthly.