EVERBRITE, LLC TERMS AND CONDITIONS OF SALE
THESE TERMS AND CONDITIONS OF SALE shall apply to all orders placed by Customer ("Customer") with EVERBRITE, LLC, a Wisconsin limited liability company (the "Company") for Products and/or Services. Company will accept Customer's orders, sell Products, perform Services and do business only upon the terms and conditions of this Agreement. Customer, upon placing any order with Company, shall be deemed to have accepted all of the terms and conditions of this Agreement without modification. Unless otherwise agreed to in a writing signed by an authorized representative of Company, any term or condition contained in any Customer purchase order or other form or correspondence that purports to add to, or is in any way inconsistent with, this Agreement is expressly rejected. If for any reason this Agreement or any quotation, proposal or order acknowledgement issued by Company is deemed to be an acceptance of a prior offer made by Customer, such acceptance is expressly conditioned on Buyer's assent to only the terms and conditions contained in this Agreement.
The following terms and conditions apply to all orders for Products and/or Services:
1. DEFINITIONS. (a) "Agreement" means these Terms and Conditions of Sale, any attached exhibits or addenda, and any terms or conditions stated by Company in a written quotation or sales acknowledgement relating to the Products or Services ordered by Customer; (b) "Products" collectively mean all items being sold by Company to Customer, whether finished goods, equipment, parts, materials, products to be manufactured and/or installed or any combination thereof; and (c) "Services" collectively mean all services and labor performed by Company in connection with the manufacture, sale, delivery, installation and/or maintenance of the Products or as may otherwise be necessary to perform this Agreement.
2. PRICE; TAXES. Prices are based on current material costs and labor rates. Company reserves the right to charge to Customer any increases in costs of materials and/or labor rates which occur between the date of any quotation and actual cost of materials or labor on the date Company accepts Customer's order. All prices are stated and payable in U.S. dollars. The price for Products and Services does not include any foreign, federal, state or local sales, use, value-added, excise or other similar taxes or any tariffs, duties or other charges imposed on or measured by the use or sale of the Products or performance of Services (collectively, "Taxes"). Customer shall pay, and reimburse Company if it pays, any and all Taxes, except for those based on Company's income. If Company is required by any governmental authority or agency to collect and pay any Taxes on Customer's behalf, Company may invoice Customer for such amounts, which Customer shall pay in accordance with the terms of this Agreement. Tax-exempt certificates must accompany any order to which the same applies.
3. ORDERS. Company shall have the right to reject any order. Unless otherwise agreed to by Company in writing, all accepted orders shall be for shipment and invoicing as Products are manufactured. In the case of blanket orders accepted by Company, all manufactured and unreleased Product will be invoiced 1 year from date of order, provided the Product is in Company's inventory at such time. All orders are subject to a minimum charge of $50.00.
4. BILLING; PAYMENT. Customer shall pay each invoice, without deduction or setoff, within thirty (30) days of the invoice date. Interest will be added to all amounts outstanding more than thirty (30) days after the invoice date at the rate of 1.5% per month or the maximum rate of interest allowed by applicable law, whichever is lower.
5. SHIPPING. All shipments will be made freight collect unless Customer or Company otherwise agree in writing. If Customer requests shipment to be prepaid, Customer will be designated as the shipper. If Customer requests Company prepay the freight charges, or if the I.C.C. Regulations permit common carrier to demand Company prepays freight costs, Company will bill the freight charges to Customer and, in addition, add a service charge of 15%. When Customer contracts to have shipments made to a number of points, Company will make such shipments at an extra charge based on agreed upon rates. The drop ship charge may vary according to the number of destinations and the amount of paper work involved. Title to and all risk of loss or damage to the Products shall pass to Customer upon delivery of the Products to the common carrier for shipment. Notwithstanding anything in this Agreement to the contrary, any timeframe provided by Company is a good faith estimate of the expected delivery date for Products or performance date for Services. Company will use commercially reasonable efforts to fill Customer's orders within the time stated but in no event shall Company be liable for any damages associated with Company's inability to meet any such timeframes or deadlines.
6. WAREHOUSING. Product remaining in Company's possession and/or inventory for more than thirty (30) days following completion of manufacture is subject to warehousing charges. Product may be warehoused up to twelve (12) months at Customer's cost, after which remaining Product must be released and accepted by Customer. Cost to dispose of unreleased Product is the responsibility of Customer.
7. IMPORT/EXPORT. Customer shall be responsible for obtaining and maintaining, at its cost, all legally required approvals, licenses, permits, registrations, certifications and other documents relating to the importation and/or exportation of the Products. Customer shall be responsible for all cost and expenses relating to the Products transit across another country's border.
8. MOLDS, DIES AND TOOLS. Company shall issue invoices for molds, tools, and dies upon completion of fabrication of same. Company will keep, store, and maintain same without cost to Customer for one (1) year from order date. Thereafter, Company may request the right to dispose of this equipment upon giving thirty (30) days written notice to Customer; or at Customer's option, Company will retain the mold and charge Customer for storage charges so incurred. If shipment of a Customerowned mold is required, a charge for crating and handling will apply. Freight for such equipment shall be F.O.B., the manufacturing point.
9. CONFIDENTIAL INFORMATION. All documentation or information provided by Company to Customer which is marked as confidential, or which from its nature or the context in which it is given should reasonably be understood to be confidential or of a proprietary nature, shall be held by Customer in strict confidence. Customer shall not use or disclose such information to any person or business, other than an employee and agent of Customer who has a need to know the information to enable Customer to perform its duties and obligations under this Agreement; provided, however, that such employees and agents be required to maintain the information at all times in strict confidence in accordance with this Agreement. Customer shall be responsible for any breach of this Section by its employees or agents.
10. COMPANY'S INTELLECTUAL PROPERTY RIGHTS. Company shall retain all rights in its intellectual property, including all rights under any work product, patents, patent applications, copyrights, trademarks, trade dress, trade secrets, confidential information, or other intellectual property rights owned by or licensed to Company which may be protected by state, federal or common law, and nothing in this Agreement shall be deemed or construed to be a transfer or license of any of Company's intellectual property. Customer shall obtain rights to such intellectual property only to the extent that Company may grant such rights in a signed writing, whether by license or otherwise.
11. RETURNED GOODS. Product once shipped cannot be returned without the previous knowledge and written authorization of Company's Customer Service Department. All returned Product must be shipped prepaid. Product returned is subject to receipt, inspection, handling, and restocking charges at the prevailing rate. Repair to damaged Product will be at extra charge. Above charges will not apply if Company is responsible for the need to return Product. Product that is custom or special order is non-returnable.
12. CANCELLATIONS. Orders are non-cancelable and not subject to change, in whole or in part, except by written consent of Company. Cancellation fees may apply.
13. CREDIT TERMS. Company reserves the right to suspend and/or limit credit at any time when in Company's judgment the financial condition of Customer warrants such action. In the event Customer is in default of any term or condition of this Agreement or any other order or contract between Customer and Company, including, without limitation, payment of any amounts owed to Company in a timely manner, Company may: (a) defer or suspend further shipments of Products or performance of Services until Customer cures such default and/or reestablishes satisfactory credit; (b) cancel the unshipped or unperformed portion of any order and invoice Customer for incurred costs and a cancellation charge without any liability for Company's failure to ship or provide the Products or perform the Services; (c) make shipment of the Products to Customer and/or perform Services on a C.O.D. or cash in advance basis; or (d) pursue any other remedy available under this Agreement or at law or equity.
14. SECURITY INTEREST. Customer hereby grants to Company and Company hereby retains (until full payment is received for all Products and/or Services furnished under this Agreement), a purchase money security interest in all of the Products sold hereunder and all accessories and additions thereto, whether presently upon Customer's premises or hereafter acquired, all spare parts and components therefor, and all proceeds of the sale or other disposition of the Products, including, without limitation, cash, accounts, contract rights, instruments and chattel paper. Customer hereby authorizes Company and its agents to file any financing statements and other documents necessary to create, perfect or maintain the perfection of the security interest granted hereunder. Further, Customer agrees that Company may notify Customer's creditors that Company claims a security interest in the Products. In the event Customer is in default of this Agreement, Company shall have the remedies of a secured party under the Uniform Commercial Code.
15. EXCUSED PERFORMANCE; ALLOCATION. Company shall not be liable for any delay in the performance of this Agreement by reason of any of the following: acts of God, acts or war or terrorism, laws, regulations, acts or requests of governmental agencies, strikes, lockouts or other labor conditions, shortages of raw materials, fire, flood, explosion, or other damage to plant or facilities, or absence of normal transportation or any other cause which is beyond the reasonable control of Company. In the event of any such delay, Company's performance hereunder shall be postponed by such length of time as may be reasonably necessary to compensate for the delay; provided, however, if the excused delay in Company's performance exceeds ninety (90) consecutive days, Customer may cancel any order affected by the delay by serving written notice upon Company before the cause(s) of the delay abate. Company reserves the right to allocate its inventory of available Products in any manner and to any persons it may determine from time to time, in its sole discretion.
16. PRODUCT WARRANTY. Company warrants to Customer that (a) all Products manufactured but not installed by Company shall be free of defects in materials and workmanship for a period of one (1) year from the date of shipment from Company's plant; and (b) all Products manufactured and installed by Company shall be free of defects in materials and workmanship for a period of one (1) year from the date of installation. Company's sole obligation, and Customer's exclusive remedy, for a breach of the limited warranties stated in this Section shall be for Company, at its option, to repair, replace, or refund the purchase price paid by Customer for any Product or Product part, component, or assembly that are defective. Replacement parts are covered by the warranties set forth in this Section 16 for ninety (90) days or the balance of the original warranty period, whichever is longer. For Product manufactured and installed by Company, the warranty in this Section 16 includes payment by Company of labor charges necessary to perform warranty services for one (1) year after installation, provided, all warranty services must be pre-approved by Company in writing and performed by a Company-authorized service contactor. In all other cases, Customer shall be responsible for payment of such labor charges. No Product may be returned by Customer without prior written authorization from Company in the form of a Return Goods Authorization (RGA) for the Products to be returned. Customer shall assist Company to process any warranty claim to include, upon request, returning to Company the Product(s) covered by the RGA (freight prepaid) for an inspection and warranty coverage determination. In the event the complained of defect is covered by the warranty set forth in this Section 16, Company shall reimburse Customer for the cost of such shipment. The following items are NOT covered under this warranty: (i) loss or damage resulting from or caused by normal wear and tear, weathering, or use with incompatible equipment or software; (ii) loss or damage resulting from or caused by improper maintenance, improper handling or storage, improper use, abuse, neglect, or operation beyond rated capacity; (iii) any Product that has been altered or modified in any way not approved by Company in writing; (iv) electrical components manufactured by a third-party, including ballasts and transformers. Such electrical components only carry the original manufacturer's warranty or guarantee, if any; (iv) Acts of God, accidents or any other causes beyond Company's reasonable control. EXCEPT AS SET FORTH IN THIS SECTION 16, COMPANY HEREBY DISCLAIMS ALL EXPRESS, IMPLIED AND/OR STATUTORY REPRESENTATIONS OR WARRANTIES REGARDING THE PRODUCTS AS WELL AS ANY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES REGARDING THE PRODUCTS WHICH EXTEND BEYOND THIS SECTION 16.
17. LIMITATION OF LIABILITY/DISCLAIMER. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO CUSTOMER OR ANY OF ITS PARENT COMPANY, SUBSIDIARIES OR AFFILIATES FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY. SUCH DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS OPPORTUNITY, COST OF CAPITAL, COST OF SUBSTITUTE OR REPLACEMENT EQUIPMENT, FACILITIES OR SERVICES, OR DOWN TIME.
18. CUSTOMER MATERIALS. Any materials furnished by Customer are accepted only at such times as Company specified, and at a previously agreed upon handling charge. All materials furnished by Customer are held by Company at Customer's risk and Company assumes no responsibility for loss or damage by fire, water, or any cause beyond its control. The Company also assumes no responsibility for defects of any nature in the materials so furnished.
19. OVERRUNS AND UNDERRUNS. A 5% over or under run of the quantity ordered will constitute completion of the order except through mutual agreement.
20. DAMAGE. In accordance with I.C.C. Regulations, Customer must inspect all Product immediately upon receipt for damage or defect. Visible damage should be noted on the delivery receipt by Customer before accepting delivery. Concealed damaged must be reported to the carrier within 5 days after receipt of shipment and a concealed damaged report requested. The liability of Company for shipping damage ceases with acceptance of a shipment in good order by the carrier. However, reasonable cooperation will be provided to aid Customer in settling shipping claims. Filling of claims is Customer's responsibility.
21. AFFILIATES. This Agreement may be performed and all rights hereunder against Customer may be enforced by Company or by any one or more of the affiliates of Company or in part by Company and in part by one or more of said affiliates.
22. GOVERNING LAW/VENUE. The Agreement shall be construed and governed under the laws of the State of Wisconsin, without application of conflict of law principles and excluding application of the United Nations Convention on Contracts for the International Sale of Goods. All actions or counterclaims regarding the enforcement or interpretation of the Agreement shall be initiated and prosecuted exclusively in the state and federal courts located in Milwaukee County, State of Wisconsin and those courts hearing direct appeals therefrom. Customer and Company both consent to the jurisdiction and venue of such courts and expressly waive objections based on the doctrines of personal jurisdiction or forum non conveniens. EACH PARTY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THE RIGHT TO A TRIAL BY JURY.
23. ENTIRE AGREEMENT. This Agreement, any exhibit or addendum attached hereto, and any other document executed by the parties which expressly refers to this Agreement (all of which are incorporated herein by reference) constitute the entire agreement and understanding of the parties regarding subject matter hereof, and supersedes all previous negotiations, agreements, commitments and writings in respect thereto.
24. WIND LOAD. Unless otherwise requested by Customer and agreed to by Company in writing, Company will manufacture all Products constituting exterior signage based on standard wind load requirements of 35psf pursuant to the International Building Code of 2006. Certain municipalities/regions may require special (nonstandard) construction methods to meet local code requirements. It is Customer's responsibility to verify that Company's standard sign construction will meet local conditions and code requirements.
25. ANCHOR BOLT FOUNDATIONS/BASE PLATES. The base plate and all anchor bolts for a Product must be kept clear of all soil and landscaping material. Soil and landscaping material should NOT be closer than 2" to base plate of a Product. Further, projected concrete pedestals at base of pole must not be buried or covered with any landscaping.
26. MERCURY CONTENT/COMPLIANCE WITH ENVIRONMENTAL LAWS. Fluorescent tubes/bulbs and neon tubes/bulbs used in the Product contain mercury or other potentially hazardous materials. Customer shall comply with all applicable international, foreign, federal, state, provincial and local laws, statutes, ordinances, rules, regulations and orders (collectively, "Laws") relating to its use, maintenance, storage and/or disposal of the Products, including, without limitation, any Laws relating to the protection of health, safety and/or the environment.
27. MOUNTING ENVIRONMENT. All mounting environments for electronics must be properly vented to reduce extreme temperatures (i.e., >120F).
28. ASSIGNMENT. This Agreement is not assignable by Customer without the prior written consent of Company. Any attempt by Customer to assign or delegate its rights, duties or obligations under this Agreement without Company's consent is void.
29. INSTALLATION SERVICES. Any Services furnished to Customer by Company and/or its authorized agents or subcontractors to install Products shall be subject to the additional terms and conditions set forth on the attached Addendum A, which is incorporated by reference into this Agreement.
30. MAINTENANCE SERVICES. Customer shall use and maintain all Products in accordance with those instructions and guidelines issued by Company from time to time and only for those purposes which the Products were engineered and designed. Customer may elect to have Company and/or its designated agents or subcontractors perform certain maintenance Services with respect to the Products. Any such Services shall be subject to the additional terms set forth on any order or acknowledgement accepted by Company as well as all of the terms and conditions set forth on the attached Addendum B, which is incorporated by reference into this Agreement.
31. RELATIONSHIP OF THE PARTIES. Company and Customer are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. This Agreement will not be construed to create or imply any partnership, agency, joint venture, or formal business entity of any kind between Company and Customer.
ADDENDUM A - PRODUCT INSTALLATION TERMS AND CONDITIONS
The following additional terms and conditions shall apply to any Services provided by Company and/or its designated agents or subcontractors to install Products:
GENERAL INSTALLATION TERMS:
1. INSTALLATION: Standard installation costs are defined as labor and equipment required for handling and transportation of materials from the Installer's place of business to Customer's premises, installation of concrete foundations for signs per Company's standard specifications, installation of sign, and final electrical hook-up of sign to primary feed. Concrete foundations shall be designed to withstand the prescribed wind loads required by the governing building code(s), and be constructed on undisturbed soil. Maximum allowable load-bearing values shall not exceed foundation pressure of 2,000 psf (pounds per square foot), or lateral pressure of 150 psf/ft. (pounds per square foot, per foot of depth below natural grade). Mud, organic silt, organic clay, peat or unprepared fill shall not be assumed to have a presumptive load-bearing capacity. Concrete mix shall be designed to attain a minimum compressive strength of 3,000 psi (pounds per square inch) at 28 days.
2. CONDITION OF STRUCTURES: The parties acknowledge that Company is not responsible for evaluating the condition of any structure on which an installation or other work will take place. Company assumes no responsibility for pre-existing or unforeseen conditions of existing structures including but not limited to, cabinets, buildings, columns, and foundations. If requested, Customer will provide Company an engineer's report or other satisfactory evidence of the structural integrity of any column or structure before any work or installation takes place. Customer assumes all responsibility for the structural integrity of any column or structure.
3. PERMITS: The Company shall obtain the necessary permission from the owner of the premise and permits from public authorities and all others whose permission is required when Company is contracted for installation or maintenance of the signs. Both Company and Customer agree to assist each other to obtain the necessary permits. The cost of all permits, procurement, and variance costs are the responsibility of Customer and will be included as additional on the final invoice to Customer. The Customer shall obtain all the necessary permits from public authorities and all others whose permission is required when Company is not contracted for installation or maintenance of the signs.
4. The Customer shall furnish and install all service wiring and controls from their source of supply to within 2' of sign locations. Such wiring must have the approval of the National Board of Fire Underwriters or the municipal department having jurisdiction.
5. Title to the above-described Products shall pass to Customer upon completion of the installation of the said Products to the job site, and from the moment after of such completion of installation all risk of loss, injury, or destruction of the Products from any cause what so ever shall be upon Customer, and Customer herby accepts and specifically assumes said risk of loss, provided, however, that the transfer of title upon completion of installation and the assumption by Customer said risk of loss under this provision shall in no way alter Company's obligation to fully perform this Agreement with Customer.
6. The Customer agrees to examine Products upon completion of installation and Customer agrees to notify Company of any complaints, defects, breaches of contract or warranty claimed by Customer within (30) days and failure to notify Company within said time shall constitute the acceptance of Customer and waiver by Customer of such complaints, defects, breaches of contract or warranties which are apparent and may be claimed by Customer within said time.
7. In case of discrepancy between this Agreement and any sketch or other document referred to in this Agreement, the terms, conditions and specifications of this Agreement shall prevail.
8. Company standards unless otherwise noted:
- Receipt and inspection of Product after shipment.
- Coordination of the sign installation in terms of timing and sign location with the "on-site" contact or designated representative.
- Furnish and install standard direct burial concrete foundation for the proposed signage and column. Installer to provide excavation, concrete and removal of excavated soil from site.
- Install the sign and column and hookup the electrical service to adequate, compliant primary source, which has been provided by others to within 2' of the sign.
- Install building signage on standard one layer hollow-core block wall with stucco or one layer brick finish.
- Test light the complete installation to ensure proper operation.
- General clean-up of the work area.
- One completion photo for each element of contract.
9. The following items are not the responsibility of Company and are not included in the installation price:
- Sealed drawings when required by local code.
- Inspection or evaluation of existing column and foundation when new Product or sign cabinets are being installed onto an existing column and foundation.
- Filing for variances on Customer's behalf with the local authority to allow for signage installation.
- Forming of base due to other than normal earth.
- Rebar for foundation where required by local codes.
- Removal of obstructions while excavating.
- Special equipment due to abnormal site conditions.
- Modification of the standard signage where required by local codes.
10. It is Customer's (franchisee's) responsibility to:
- Provide marked plot plans, elevation drawings or other applicable drawings that show specific sign locations.
- Inspect existing column and foundation for adequate structural integrity and, if requested, provide Company an engineer's report referred to in Section 2 above if requesting Company to provide and install onto an existing column and foundation. Customer assumes all liability in this regard.
- If a variance is required, appear in the necessary city meetings, possibly with an attorney, to make your presentation.
- Arrange for adequate primary electrical service to within two feet of the signage, leaving enough wiring for the connection of the sign.
- Provide the name and telephone number of the appropriate contact at the site so that the installation may be scheduled.
- Assist the sign installer in ensuring site accessibility for a timely sign installation.
- Have the "on-site" contact person confirm the installation of the signage and verify proper operation by signing the Field Service Report at time of install.
- Contact Company directly for any repairs required during the warranty period. Failure to follow this process voids warranties.
INTERIOR DIGITAL DISPLAYS:
11. All items in sections above are hereby incorporated as it pertains to Interior Digital Displays.
12. If Network Monitoring available: (VPN Access)
- Company will monitor the status of the VPN tunnel, and if tunnel fails Company will VNC in and restart the tunnel
13. If No Network Monitoring available: (No VNC Access)
- Company will not be responsible for monitoring or any network connectivity.
- Company will monitor the status of the VPN tunnel, however, if tunnel fails, we will open an IT ticket with Customer to re-establish tunnel connection via the player interface. We will not have remote access to the player, so Customer will need to VNC in and restart the tunnel.
14. In the event of encountering asbestos or other suspect hazardous materials, Company will immediately stop working in the area and will not return until the area has been properly abated of the hazardous materials by qualified third-parties.
15. Installation based on access to all necessary areas to be reached by an 8' ladder.
16. Company Standards unless otherwise noted:
- All data cabling will be provided and installed by Company with terminations from the head-end location to the screens ? assume no more than 50' run from screen to head-end.
- Company will install all screen and mounts making final cable terminations.
- Player will be pre-configured, pre-loaded, and labeled with site ID, IP address and clearly labeled with pertinent site information.
17. The following items are not the responsibility of Company and are not included in the installation price:
- Unforeseen existing conditions of, but not limited to: relocation of mechanicals, updating mechanicals or any other code violation, damage behind walls, structural integrity, and conditions beyond restoration or repair.
- Detection and removal of hazardous materials.
- Structural modification to the mounting surface.
- Restoration of existing surfaces.
- Seismic or hurricane straps.
- Sanitizing of work area.
- Relocation of utilities.
18. It is Customer's (franchisee's) responsibility to:
- Provide adequate, compliant electrical outlets at the screens and head-end per NEC regulations and display(s) configuration and specifications. Dedicated circuits are required.
- Provide adequate, compliant electrical and cabling to the termination locations per NEC regulations and display(s) configuration and specifications.
- Clearly label all cables and wiring for ease of identification for proper installation.
- Installation of internet connectivity or the DSL service and modem prior to installation.
- Assure mounting area will accommodate the overall weight and specifications of system regarding overall wall dimensions and ceiling height.
ADDENDUM B - PRODUCT MAINTENANCE TERMS AND CONDITIONS
The following additional terms and conditions shall apply to any Services provided by Company and/or its designated agents or subcontractors to service or maintain Products:
1. MAINTENANCE SERVICES. Upon the terms and conditions set forth in this Agreement, Company and/or its designated agent or subcontractor shall provide to Customer the maintenance services, labor and materials more particularly described on the order or acknowledgment to which this Agreement is attached or as otherwise agreed to by the parties in a separate statement of work ("Statement of Work") executed by Company and Customer. The term and compensation for performance of maintenance Services by Company and/or its agent or subcontractor shall be as set forth in such order, acknowledgment or Statement Work.
2. CUSTOMER OBLIGATIONS AND COMMITMENTS TO COMPANY: Customer warrants, to the best of Customer's knowledge, that all Products and other equipment to be maintained by Company pursuant to Addendum (collectively, "Covered Products") are in good working condition and that Customer has given Company all information of which Customer is aware concerning the condition of the Covered Products. The Customer agrees that, during the term of any service agreement, Customer shall: (a) operate the Covered Product according to the manufacturer's recommendations; (b) keep accurate and current operational and service records, logs and information regarding the Covered Product; (c) notify Company of any equipment malfunction, break-down, or other condition affecting the operation of the Covered Products; and (d) allow Company to start and stop, periodically turn off, or otherwise change or temporarily suspend equipment operations so that Company can perform the Services required under this Addendum (all practical accommodations will be made to perform Services during Customer's requested timeframes). The Customer acknowledges that its failure to meet these obligations will relieve Company of any responsibility for any equipment breakdown, or any necessary repair or replacement, of any Covered Products.
2. CHANGES TO CUSTOMER EQUIPMENT: Customer retains the right to make changes or alterations to the Covered Products. If, in Company's opinion, such changes or alterations substantially affect Company's Services or obligations under this Agreement, Company shall have the right to make appropriate changes to the Statement of Work, the compensation due for the performance of maintenance Services, or both.
3. ACCESS: Customer shall give Company full access to all equipment that is either Covered Product or associated with the Covered Products when Company requests such access. If access cannot be provided, Company's obligations under this Agreement will be suspended until such access to the equipment is provided. Matters affecting Company access to the equipment may include, but are not limited to, the removal, replacement, repair, refinishing, restoration, reconstruction, or other remedial actions taken by Customer with respect to the Covered Product or to Customer's facility. Suspension of Company's duties for this reason will not cancel or suspend any of Customer's obligations under this Agreement.
4. MAINTENANCE WARRANTY: Company warrants to Customer that it will provide maintenance Services with respect to the Covered Products in a commercially reasonable manner and in substantial conformity with the Agreement (the "Covered Product Maintenance Warranty"). Except as may be expressly agreed in writing by Company, the Covered Product Maintenance Warranty does not apply to: (a) defects, problems, or failures caused by Customer's nonperformance of any of its duties or obligations under this Agreement; and/or (b) defects, problems, or failures caused by an event of force majeure, as more particularly described in Section 15 of the Agreement. Company's sole obligation, and Customer's exclusive remedy, for any breach of the Covered Product Maintenance Warranty stated in this Section shall be for Company, at its option, to (i) re-perform the Service; or (ii) refund the purchase price paid by Customer for Services that are defective. EXCEPT AS SET FORTH IN THIS SECTION 4, COMPANY HEREBY DISCLAIMS ALL EXPRESS, IMPLIED AND/OR STATUTORY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES AS WELL AS ANY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES REGARDING THE PRODUCTS WHICH EXTEND BEYOND THIS SECTION 4.
5. ASSESSMENT: It is Customer's responsibility to pay all taxes or other government charges relating to the transfer, use, ownership, servicing, or possession of any Covered Products.
6. EXCLUSIONS: Company's Services under this Agreement do not include: (a) service calls due to failures resulting from acts of God, abuse or misuse of equipment; (b) alterations, modifications, or repairs to equipment not performed or provided by Company; (c) service calls due to failures caused by improper environmental conditions affecting equipment; (d) noise or electrical power fluctuations, if due to conditions beyond Company's control; and/or (e) service calls required because Company had previously been denied access to the equipment.
7. REPLACEMENT PARTS. Unless otherwise agreed to in writing by Company, any Products or components thereof replaced by Company in connection with the maintenance Services shall become the property of Company.
Rev. 05.19.15 Everbrite, LLC, 4949 S. 110th Street, P.O. Box 20020 Greenfield, WI 53220-0020 Phone 414-529-3500 Fax 414-529-7191