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Time and Material Service Agreement
<br />Terms and ConditionsT-TM
<br />1. DEFINITIONS: As used In this Time and Material Service Agreement
<br />('Agreement'); (1.1) "Power Module' shall mean the electronics portion of a
<br />UPS; (1.2) 'Battery' shall mean the electric storage battery portion of a UPS;
<br />(1.3) Power System shall mean the Power Module and Battery, (1.4) 'Proper'
<br />and all of Its derivative forms shall mean In accordance with published Eaton
<br />Corporation. specifications. (1.5) "Purchaser" or 'Customer" shall mean an the
<br />purchaser of this Agreement. (1.6) 'Contractor" or `Eaton Corporation Global
<br />Services' shall mean, Eaton Corporation a Delaware corporation, with an
<br />office located at 8609 Six Forks Road, Raleigh, NC 27615.
<br />2. COVERED EQUIPMENT 'Covered Equipment' shall mean the Power
<br />System equipment listed on the front page of the Time and Material Service
<br />Agreement, or on separate titled page incorporated into this Agreement
<br />3. HOURS OF SERVICE: Eaton Corporation will provide service
<br />during the hours noted on the Time and Material Service Rate Schedule,
<br />attached hereto as Attachment X-1 and incorporated herein by reference.
<br />Contractor's observed holidays shall be the same as public holidays for
<br />Federal employees as established by U.S. Federal law IS U.S.C. 6103).
<br />4. LABOR AND MATERIAL RATES: Customer shall be billed as per Eaton
<br />Corporation Time and Material Rate Schedule, Attachment X -1.
<br />S. CUSTOMER'S RESPONSIBILITY:
<br />A. Communication - The Customer shall contact Eaton Corporation's
<br />Customer Reliability Center (1-800-843-9433, option #1) regarding all
<br />service requests and all other matters arising out of or relating to this
<br />Agreement,
<br />B. Safety - The Customer shelf, at all times during the provision of ser-
<br />vices hereunder, hav a a representative present at the maintenance
<br />site at no cost to, and solely for the safety of Eaton Corporation.
<br />C. Access - In order that Eaton Corporation may perform its obliga-
<br />tions under this Agreement, Customer shall grant ready access to the
<br />Covered Equipment subject to reasonable security requirements.
<br />6. TERM AND TERMINATION: This Agreement and all that is stated herein
<br />shall expire upon completion of services hereunder or ninety (90) days
<br />from the date of the Time and Material Service Agreement, except that any
<br />provisions that shall naturally continue shall not expire. Notwithstanding
<br />the foregoing, either Customer or Eaton Corporation may terminate this
<br />Agreement at any time upon fifteen (16) days written notice to the other,
<br />subject to provision of Section 14 hereof.
<br />7. INSURANCE: During the term of this Agreement, Eaton Corporation at its
<br />own cost and expense, shall obtain and maintain In full force and effect the
<br />following insurance with sound and reputable insurers: (1) Worker's Com-
<br />pensation insurance in accordance with the statutory requirements of the
<br />state in which the maintenance is to be performed; (2) Automobile Liability
<br />insurance on all motor vehicles licensed for highway use, both owned and
<br />non-owned and, (3) Comprehensive Liability insurance for bodily injury and
<br />property damage.
<br />8. WARRANTY: Eaton Corporation shall perform all services In a profes-
<br />sional and workmanlike manner. Eaton Corporation warrants to repair or
<br />replace defective materials and correct defective workmanship reported
<br />to Eaton Corporation and/or diagnosed by Eaton Corporation personnel
<br />during the term of this Agreement. Eaton Corporation warrants its correc-
<br />tive maintenance and spare parts to be free from defects in material and
<br />workmanship for a period of ninety (90) days from the completion date of
<br />the repair or replacement endeavor for which those repair materials and/
<br />or equipment were used. In the event the materials or equipment fails to
<br />meet its published specifications due to a defect in material or workman-
<br />ship covered by this Warranty, Eaton Corporation will repair or replace the
<br />warranted materials or equipment at no cost to Customer for the material
<br />repaired or replaced. This Warranty shall not apply to any Power Module
<br />and/or Battery that has been subject to damage caused by accident, fire,
<br />flood, lightning, vandalism, acts of God, Customer's neglect, misuse, misap-
<br />plication, incorrect connection or external damage; or that has been subject
<br />to repair or alteration by Customer (or a third party) not authorized by Eaton
<br />Electrical Inc. in writing. THIS WARRANTY IS CUSTOMER'S SOLE REMEDY
<br />AND IS EXPRESSLY IN LIEU OF ANDTHERE ARE NO OTHER, EXPRESSED
<br />OR IMPLIED GUARANTEES OR WARRANTIES INCLUDING ANY IMPLIED
<br />WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PUR-
<br />POSE. Equipment supplied, but not manufactured by Eaton Corporation,
<br />is warranted solely by the equipment manufacturer. Eaton Corporation
<br />obligation under said Warranty is conditioned upon receipt of all payments
<br />due from Customer including Interest charges, if any.
<br />9. ASSIGNMENT Customer shall not assign this Agreement or any of Its
<br />rights hereunder without the prior written consent of Eaton Corporation.
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<br />10. SUBCONTRACTING: Eaton Corporation reserves the right to subcon-
<br />tract any portion of the services provided for under this Agreement without
<br />the prior consent of Customer.
<br />11. CONFIDENTIAL INFORMATION: Each party acknowledges that it may,
<br />in the course of performance of this Agreement, be exposed to or acquire
<br />Information which Is proprietary to or confidential to the other party, includ-
<br />ing but not limited to, data relating to the products, equipment, Inven-
<br />tions, discoveries, trade secrets, secret processes, financial data, computer
<br />software, know-how, methods, marketing information and any other data
<br />or information in any form relating to the business affairs of either party, in-
<br />cluding the provisions of this Agreement ('Confidential Information"). The
<br />parties agree to hold Confidential Information in strict confidence and not to
<br />use Confidential Information for its own benefit or disclose it to third parties
<br />without the written consent of the other party. Confidential Information
<br />shall not include information: (a) which Is already known to the other party
<br />or is publicly available at the time of disclosure; (b) is disclosed to recipient
<br />by a third party who is not In breach of an obligation of confidentiality, or (c)
<br />becomes publicly available after disclosure through no act of the recipient.
<br />12. INDEMNITY* Subject to the limitations of liability in Section 13 hereof,
<br />Eaton Corporation shall defend, Indemnify and hold harmless Customer, its
<br />officers, employees and agents, from and against any and all claims, liabili-
<br />ties, damages, demands, losses, causes of action and suits, including reason-
<br />able attorney's fees incident thereto, to the extent they result directly from or
<br />out of (1) any injury to or death of any person or damage to or destruction
<br />of any property caused by the negligent acts, errors, omissions or willful
<br />misconduct of Eaton Corporation., its agents or employees; and (2) any viola-
<br />tion of federal or state regulations, orders, rules or the violation of any other
<br />governmental entity by Eaton Corporation, its agents or employees.
<br />13. LIABILITY. In no event shall Eaton Corporation or Customer, or their
<br />respective officers, directors, employees or agents be liable to the other for
<br />any Incidental, indirect, special or consequential damages, such as, but not
<br />limited to, delay damages, lost profits or lost opportunity damages, resulting
<br />from or in connection with any claim or cause of action, whether brought in
<br />contract or in tort, even If Eaton Corporation or Customer knew or should
<br />have known ofthe possibility of such damages. Under no circumstances
<br />shall the aggregate liability arising out of or in connection with this Agree-
<br />ment exceed the price paid hereunder for the goods and services provided.
<br />14. PAYMENT. All payments are due not 30 days in full from date of invoice,
<br />and any payment not made when due shall be subject to an interest charge of
<br />1.5% per month or fraction thereof, or maximum permitted by law, whichever
<br />is less. Customer shall be liable for expenses including reasonable attorneys'
<br />fees, associated with collection proceedings for non-payment.
<br />15. TAX: Contractors price is exclusive of any applicable tax. All orders will
<br />be subject to all applicable sales tax unless a currant tax exemption certificate
<br />is on file with Eaton Corporation covering that state shown In the ship-to ad-
<br />dress or service location of the Customers purchase order or the Installation
<br />location of the Covered Equipment under this Service Agreement
<br />16, BATTERIES/PARTS: In order to comply with federal, state and local
<br />government regulations, batteries and parts removed for replacement shall
<br />be Eaton Corporation property and Eaton Corporation shall promptly and in
<br />accordance with applicable regulations dispose of such batteries and parts.
<br />Maintenance parts used from Customer-owned spare parts kit shall be
<br />replaced by Eaton Corporation at no cost. Replacement parts shall be new
<br />or of the same quality as new,
<br />17. FORCE MAJEURE: Contractor shall not be liable for any failure to
<br />deliver, or delay in delivering services to Customer to the extent that such
<br />failure or delay results from causes beyond its reasonable control including,
<br />without any limitation, any act of God or force majeure, war, revolution,
<br />riot, civil commotion, or any applicable governmental or judicial law or
<br />regulation, order or decree.
<br />18. GENERAL, The terms and conditions of this Agreement cannot be
<br />modified or waived except by a writing signed by the parties hereto and
<br />waiver by Eaton Corporation or Customer of any provision hereof In any
<br />one instance shall not constitute a waiver as to any other instance. Any
<br />provisions herein that shall naturally survive termination of this Agreement
<br />shall continue In full force and affecL If a provision of this Agreement is
<br />invalidated for any reason, this Agreement remains binding except for such
<br />Invalid provision. This Agreement shall be construed in accordance with
<br />and governed by the laws of the State of North Carolina. Customer and Ea-
<br />ton Corporation hereby agree that all disputes arising out of this Agreement
<br />shall be submitted solely to the jurisdiction of the State and Federal Courts
<br />located In Wake County, North Carolina.
<br />Eaton Corporation Time and Material Service Agreement Revision: January 1, 2012, Page 3 of 4
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