general terms and conditions
Access – Customer shall provide reasonable means of access to all building areas and the use of building utility and elevator services, as required, to perform the Services hereunder. Customer shall keep areas adjacent to the Covered Equipment free and clear of any obstructions that may impede performance of the Services. Any failure to provide such access may result in additional charges if a return call is required to perform the Services.
Payment and Incidental Charges – Customer will promptly pay invoices within ten (10) days of receipt. Should a payment become thirty (30) days or more delinquent, USMC, Inc. may stop all Services and terminate this Agreement upon written notice to Customer. A finance charge will be added to past due accounts at the rate of one and one-half percent (1½%) per month, or at the highest legal rate, whichever is lower. Customer shall pay all taxes or other governmental charges relating to the transfer, use, ownership, sale, service or possession of any material or equipment covered by or related to this Agreement or the Services provided hereunder (other than income taxes or corporate franchise taxes imposed upon USMC, Inc.). In the event USMC, Inc. is required to take any action or initiate proceedings to collect on sums due hereunder, USMC, Inc. shall be entitled to an award of its reasonable costs and expenses of such collection, including, without limitation, reasonable attorneys’ fees and costs.
Time of Performance – All Services to be provided under this Agreement shall be performed during USMC, Inc.’s normal working hours. Services not covered by this Agreement shall be billed at USMC, Inc.’s then prevailing rates.
Operation Of Equipment – Customer agrees that, during the Term, Customer shall: operate the Covered Equipment according to the manufacturer’s recommendations; keep accurate logs and information on the Covered Equipment; ensure that all operators of the Covered Equipment are adequately trained; and allow USMC, Inc. to start and stop or temporarily suspend operation of the Covered Equipment so that USMC, Inc. can perform the Services. (USMC, Inc. will notify Customer prior to starting or stopping the covered equipment.) Customer agrees to have USMC, Inc. perform all work on the Covered Equipment. USMC, Inc. may immediately terminate this Agreement if the Covered Equipment is modified, moved or worked upon by anyone other than USMC, Inc.
Maintainability – This Agreement assumes the Covered Equipment to be in maintainable condition. Should repairs or replacements be found necessary upon initial inspection, initial seasonal start-up or otherwise, USMC, Inc. will prepare and submit proposed repair and/or replacement charges to Customer for approval before commencing any such work. In the event USMC, Inc. determines that the Covered Equipment, or any portion thereof, is not maintainable or otherwise is not serviceable within the scope of USMC, Inc.’s Services. USMC, Inc. may, at its sole option, terminate this Agreement or remove any Covered Equipment that is not in maintainable condition from the list of Covered Equipment and reduce the Agreement price.
Exclusions; Non-Maintainable Components – USMC, Inc.’s Services shall be strictly limited to those set forth under this Agreement, including any amendments hereto; and the Services shall not include, and USMC, Inc. shall not be responsible for, the complete replacement of any equipment, including Covered Equipment, or the replacement or repair of non-maintainable components of the Covered Equipment or the Customer’s HVAC system(s). Exclusions from coverage under this Agreement include, but are not limited, to such items as: (a) replacement and disposition of refrigerant, ductwork, casings, piping, hydraulic and pneumatic piping and vessels (including removal of oil from hydraulic or pneumatic piping), gaskets, boiler refractory material, heat exchangers, insulation, electrical systems or components, wiring (other than between equipment and its starter), structural cabinets and supports, shell and tube bundles, evaporators, condensers, and cooling tower structures, electrical disconnect switches, coils, surfaces exposed to air and water as part of its function; (b) supplies, accessories, or any items normally consumed during the use of Covered Equipment, such as ribbons, bulbs, and paper; (c) calls resulting from operator-level neglect, abuse, misuse, or environmental or site conditions affecting the Covered Equipment; or (d) damages, repairs, service or additional calls or costs arising or resulting from the faulty design or installation of equipment, including the Covered Equipment, or Customer’s HVAC system(s), which design or installation was performed by third persons not affiliated with USMC, Inc.. USMC, Inc. shall not be required to furnish any items of equipment or labor or make special tests as are recommended or required by insurance companies, federal, state, or municipal governments, or other authorities.
Environmental – If USMC, Inc., in the course of performing the Services, discovers any hazardous materials or substances upon, beneath, about, or inside Customer’s equipment or property, USMC, Inc. shall report immediately its findings to Customer; provided, however, that Customer agrees and acknowledges that Customer (a) shall be solely responsible for all costs, expenses, damages, fines, penalties, claims and liabilities arising from, associated with or incurred in connection with such hazardous materials or substances; and (b) shall be solely responsible for reporting the presence of said hazardous materials or substances to the proper authorities. Customer further agrees that it shall retain all legal responsibility and liability for any and all such hazardous materials and substances and that Customer shall be solely responsible for storing, removing, handling, and disposing of all materials, substances and wastes generated in the provision of the Services, including hazardous materials, in accordance with all applicable governmental regulations. Customer shall provide to USMC, Inc. all pertinent Material Safety Data Sheets as required by OSHA Hazard Communication Standards (29 CFR 1910.1200).
Warranty – USMC, Inc. warrants its services to be free from defects in workmanship and materials for a period of thirty (30) days from delivery of such services. USMC, Inc.’s sole obligation shall be to repair or to replace defective materials or to properly perform any defective service. except as expressly provided by this Agreement or as limited by law, USMC, Inc. hereby expressly disclaims and negates any other representation or warranty, express or implied, relating to the services provided under this Agreement, including without limitation, any implied or express warranty of merchantability, fitness for a particular purpose or conformity to models or samples or materials.
USMC, Inc. will transfer the benefits of any applicable manufacturer’s warranty to Customer upon the written request of Customer; any warranty claim for goods or equipment shall be made against the manufacturer only.
Limitation Of Liability – In no event shall USMC, Inc. be liable for any special, indirect, incidental, exemplary or consequential damages. USMC, Inc. shall not be liable for removing, replacing, or refinishing any part of the building structure necessary to the execution of this Agreement and the performance of the Services described herein. USMC, Inc. shall not be liable for any loss or damage due to delays caused by: strikes or labor troubles affecting its employees or the employees of others; by priority or preference rating, orders or regulations; by unusual delays in procuring supplies; by acts of God; wars; or for any other cause beyond USMC, Inc.’s reasonable control.
Indemnification – To the fullest extent provided by law, each party hereto agrees to indemnify and hold the other party, its successors, assigns, agents, affiliates, employees and representatives harmless from and against all claims, damages, losses, and expenses, including but not limited to attorneys’ fees, arising out of or resulting from such party’s negligence or unlawful conduct.
Agreement Changes; Entire Agreement – This Agreement is the entire Agreement between USMC, Inc. and Customer and supersedes any prior oral understandings, written agreements, proposals, or other communications between USMC, Inc. and Customer. Any and all changes, amendments or modifications to this Agreement shall be in writing and executed by an officer, or other authorized person, of each party.