Terms and Conditions Inspections Version 1.0
The Hiller Companies
Standard Terms and Conditions
THESE STANDARD TERMS AND CONDITIONS ARE PART OF AND ARE INCORPORATED INTO THE FOREGOING QUOTE AND/OR SERVICE AGREEMENT TO WHICH THEY ARE ATTACHED (COLLECTIVELY, THE AGREEMENT) BETWEEN THE HILLER COMPANIES (HILLER) AND THE PARTY TO WHOM THE AGREEMENT IS ADDRESSED (CUSTOMER).
DEFINITIONS
1. “Equipment” means the equipment covered by the Services to be performed under this Agreement and is identified in the respective work scope attachments under the “Equipment List”.
2. “Services” means those services and obligations to be undertaken by Hiller in support of CUSTOMER pursuant to this Agreement, as more fully detailed in the attached work scope document(s), which are incorporated herein.
COVERAGE
1. CUSTOMER agrees to provide access to all Equipment covered by this Agreement. Hiller will be free to start and stop all primary equipment incidental to the operation of the mechanical, and life safety system(s) as arranged with CUSTOMERs representative.
2. It is understood that the repair, replacement, and emergency service provisions apply only to the Equipment included in the attached Equipment List. Repair or replacement of non-maintainable parts of the system such as, but not limited to, piping, unit cabinets, insulating material, electrical wiring, hydronic and pneumatic piping, structural supports, and other non-moving parts, is not included under this Agreement. Costs to repair or replace such non-maintainable parts will be the sole responsibility of CUSTOMER.
3. Hiller will not reload software, nor make repairs or replacements necessitated by reason of negligence, vandalism, or misuse of the Equipment by persons other than Hiller or its employees, or caused by lightning, flood or water damage from any source, electrical storm, or other violent weather or by any other cause beyond Hiller control. This clause shall supersede and take precedent over any Emergency Service clause or provision contained elsewhere in this Agreement.
4. This Agreement assumes that the systems and/or Equipment included in the attached Equipment List are in maintainable condition. If repairs are necessary upon initial inspection, repair charges will be submitted for approval. Should these charges be declined, those non-maintainable items will be eliminated from coverage under this Agreement and the price adjusted accordingly. System equipment deemed to be no longer economically maintainable (obsolete) by Hiller will be identified throughout the term of this agreement and brought to the CUSTOMERs attention and may be removed from this specific Agreement or coverage type on the equipment identified may be reduced.
5. Maintenance, repairs, and replacement of Equipment parts and components are limited to restoring to proper working condition. Hiller shall not be obligated to provide replacement software, equipment, components and/or parts that represent a significant betterment or capital improvement to CUSTOMERS system(s) hereunder.
6. All non-emergency services under this Agreement will be performed between the hours of 8:00 a.m. – 4:30 p.m. local time Monday through Friday, excluding federal holidays and normal Hiller observed Holidays. If for any reason CUSTOMER requests Hiller to furnish any labor or services outside of the above stated hours, any overtime or other additional expense occasioned thereby, shall be billed to and paid by CUSTOMER except as may be provided under the Emergency Service section or Special Provisions of this Agreement.
7. CUSTOMER will promptly notify Hiller of any malfunction in the system(s) or Equipment covered under this Agreement that comes to CUSTOMERs attention.
PRICE, BILLING, AND TERM
1. CUSTOMER shall pay or cause to be paid to Hiller the full price for the Services as specified on the first page of this Agreement. Hiller shall submit annual invoices unless otherwise specified to CUSTOMER in advance for Services to be performed during the subsequent billing period, and payment shall be due within fifteen (15) days of the Invoice Date. Payments for Services past due more than ten (10) days shall accrue interest from the due date to the date of payment at the rate of one and one-half percent (1.5%) per month, compounded monthly, or the highest legal rate then allowed. CUSTOMER shall pay all attorney and/or collection fees incurred by Hiller in collecting any past due amounts.
2. Hiller may adjust the annual price of this Agreement periodically during the term of this Agreement (either up or down), and CUSTOMER agrees to pay for this negotiated increase or decrease in scope of services to the main Agreement between the CUSTOMER and Hiller if additional systems and equipment are added or deleted to the scope of this Agreement.
3. Following the initial term of this Agreement as noted on Page 1 of this Agreement and titled, “Period of Agreement”, this Agreement will automatically renew for successive one (1) year periods unless canceled prior to the anniversary date with at least a thirty (30) day written notice issued by the CUSTOMER. Hiller shall have the right to increase the rate up to 7% after one (1) year.
4. CUSTOMER agrees to pay any sales, excise, use or other taxes, now or hereafter levied, which Hiller may be required to pay or collect in connection with this Agreement.
TERMINATION
1. CUSTOMER may terminate this Agreement for cause after giving Hiller thirty (30) days advance written notice. CUSTOMER is responsible for payment of services provided up to cancellation date.
2. Hiller may terminate this Agreement for cause (including, but not limited to, CUSTOMERS failure to make payments as agreed herein) after giving CUSTOMER thirty (30) days advance written notice.
GENERAL TERMS AND CONDITIONS
1. Assignment and Delegation: CUSTOMER may not assign its rights or delegate its obligations under this Agreement, in whole or in part, without the prior written consent of Hiller. Hiller may assign its right to receive payment to a third party.
2. CUSTOMER shall be responsible for maintaining all liability and property insurance. No insurer or other third party will have any subrogation rights against Hiller.
3. Hazardous Materials: CUSTOMER represents and warrants that, except as otherwise disclosed in this in the areas where Hiller will undertake work or provide Services, there are no: (a) materials or substances classified as toxic or hazardous either (i) on or within the walls, floors, ceilings or other structural components or (ii) otherwise located in the work area, including asbestos or presumed asbestos-containing materials, formaldehyde, containers or pipelines containing petroleum products or hazardous substances, etc.; (b) situations subject to special precautions or equipment required by federal, state or local health or safety regulations; or (c) unsafe working conditions.
4. CUSTOMER SHALL INDEMNIFY AND HOLD HILLER HARLESS FROM AND AGAINST AND ALL CLAIMS AND COSTS OF WHATEVER NATURE, INCLUDING BUT NO LIMITED TO, CONSULTANTS AND ATTORNEY’S FEES, DAMAGES FOR BODILY INJURY AND PROPERTY DAMAGE, FINES, PENALITIES, CLEANUP COSTS AND COSTS ASSOCIATED WITH DELAY OR WORK STOPPAGE, THAT IN ANY WAY RESULTS FROM OR ARISES UNDER SUCH MATERIALS, SITUAIONS OR CONDITIONS, REGARDLESS OF WHETHER CUSTOMER HAS PRE-NOTIFIED HILLER. THIS INDEMNIFICATION SHALL SURVIVE TERMINATION OF THIS AGREEMETN FOR WHATEVER REASON. **
5. Warranties and Limitation of Liability: Hiller will replace or repair any product Hiller provides or CUSTOMER procures under this Agreement that fails within the warranty period (Typically one-year) due to defective workmanship or materials. The failure must not result from CUSTOMERs negligence, or from fire, lightning, water damage, or any other cause beyond Hiller control. This warranty applies to Hiller fabricated and outside-purchased products. The warranty effective date is the date of CUSTOMER acceptance of the product, or the date CUSTOMER begins to receive beneficial use of the product, whichever comes first.
6. THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE, AND HILLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES, EQUIPMENT, AND MATERIALS PROVIDED HEREUNDER. HILLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM, OR RELATING TO, THIS LIMITED WARRANTY OR ITS BREACH.
7. Hiller shall not be liable for damages caused by delay or interruption in Services due to fire or flood; corrosive substances in the air or water supply that may enter or otherwise affect sprinkler piping and sprinkler systems including but not limited to biological growth, Calcium Carbonate Deposits and microbiologically influenced corrosion (MIC); strike, lockout, dispute with workmen, inability to obtain material or services, war, acts of God or any other cause beyond Hiller reasonable control. Should any part of the system or any Equipment be damaged by fire, water, water leakage, freezing pipes, lightning, acts of God, third parties or any other cause beyond the control of Hiller, any repairs or replacement shall be paid for by CUSTOMER.
8. Indemnity and Limitation of Liability: Hiller agrees to indemnify and hold CUSTOMER and its agents and employees harmless from all claims for bodily injury and property damages to the extent such claims result from or arise under Hiller negligent actions or willful misconduct in its performance of the Services. **PROVIDED, THAT NOTHING IN THIS ARTICLE SHALL BE CONSTRUED OR UNDERSTOOD TO ALTER THE LIMITATIONS OF LIABILITY CONTAINED IN THIS ARTICLE OR THE INDEMNIFICATION CONTAINED IN SECTION 4. IN NO EVENT SHALL HILLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, SPECULATIVE, REMOTE, OR CONSEQUENTIAL DAMAGES ARISING FROM, RELATING TO, OR CONNECTED WITH THE SERVICES, EQUIPMENT, MATERIALS, OR ANY GOODS PROVIDED HEREUNDER. SUCH INDEMNITY OBLIGATION IS VALID ONLY TO THE EXTENT CUSTOMER GIVES HILLER REASONABLY PROMPT NOTICE IN WRITING OF ANY SUCH CLAIMS AND PERMITS HILLER, THROUGH COUNSEL OF ITS CHOICE, TO ANSWER THE CLAIMS AND DEFEND ANY RELATED SUIT. **
9. The parties further agree that Hiller is not an insurer; that the Services purchased herein is designed only to reduce the risk of loss; that CUSTOMER chose the level and scope of services being provided by Hiller from a variety of service options; that Hiller will not be held liable for any loss, in tort or otherwise, which may arise from the failure of the system(s) and/or service(s) or any errors and omissions in the above referenced specifications. The parties further agree that this Agreement shall not confer any rights on the part of any person or entity not a party hereto, whether as a third-party beneficiary or otherwise.
10. BECAUSE IT IS IMPOSSIBLE TO ASSESS ACTUAL DAMAGES ARISING FROM THE FAILURE OF A SYSTEM AND/OR SERVICE PROVIDED UNDER THIS AGREEMENT, THE PARTIES AGREE THAT IF ANY LIABILITY IS IMPOSED ON Hiller FOR DAMAGES OR PERSONAL INJURY TO EITHER CUSTOMER OR ANY THIRD PARTY, SUCH LIABILITY SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED THE AMOUNT OF THE ANNUAL SERVICE CHARGE OF THIS AGREEMENT.
Miscellaneous
1. Extent of Agreement*:* Except as and to the extent provided in the Contract, this Agreement represents the entire Agreement between CUSTOMER and Hiller for the Services described herein and supersedes all prior negotiations, representations or Agreements between the Parties related to the Services described herein.
2. None of the provisions of this Agreement shall be modified, altered, changed, or voided by any subsequent document unilaterally issued by CUSTOMER that relates to the subject matter of this Agreement. This Agreement may be amended only by written instrument signed by both Parties.
3. Hiller shall not be liable for any delay in producing, delivering, installing, or giving advice and technical assistance for any of the equipment or software covered hereunder if such delay shall be due to one or more of the following causes: fire, strike, lockout, dispute with workmen, flood, lightning, accident, delay in transportation, shortage of fuel, inability to obtain material, war, embargo, demand or requirement of the United States or any governmental or war activity, or any other cause whatsoever beyond the reasonable control of Hiller. In addition, Hiller shall not be liable for any delays caused by failure of CUSTOMER, or its agent, or any person or entity not a party hereto, to perform any of its obligations in a timely manner.
DISPUTE RESOLUTION
1. This Agreement shall be deemed to be made in Mobile County, Alabama regardless of the location of any office or representative of CUSTOMER, or the location of the equipment, or the place of signing by any party. This Agreement will be governed by Alabama law. The venue for any claim arising under this Agreement shall be in Mobile County, Alabama.
2. In the event of a dispute regarding the interpretation or enforcement of this Agreement which results in litigation, the prevailing party shall have its attorneys fees and costs paid by the losing party.