|
<br />© OTIS ELEVATOR COMPANY, 2015 All Rights Reserved Page 15 of 16 OTIS MODERNIZATION
<br />TERMS AND CONDITIONS
<br />
<br />The work shall be performed for the agreed price plus any applicable sales, excise or similar taxes as required by law.
<br />In addition to the agreed price, you shall pay to us any future applicable tax imposed on us, our suppliers or you in connection with the performance of the work
<br />described.
<br />This quotation is subject to change or withdrawal by us prior to acceptance.
<br />We warrant to you that the work performed by us hereunder shall be free from defects, not inherent in the quality required or permitted, in material and workmanship
<br />for one (1) year from the date of substantial completion. Our duty and your remedy under this warranty are limited to our correcting any such defect you report to
<br />us within the warranty period by, at our opinion, repair or replacement, provided all payments due under the terms of this contract have been made in full. All
<br />parts used for repair or replacement under this warranty shall be good quality and furnished on an exchange basis. Printed circuit boards used for replacement parts
<br />under this warranty may be refurbished boards. Exchanged parts become our property.
<br />We shall perform the work during our regular working hours of our regular working days unless otherwise agreed in writing. You shall be responsible for providing
<br />suitable storage space at the site for our material.
<br />You shall obtain title to all the equipment furnished hereunder when final payment for such material is received by us. In addition, you shall be granted a license
<br />to use any software incorporated into any such equipment solely for operating such equipment.
<br />Any drawings, illustrations or descriptive matter furnished with the proposal are submitted only to show the general style, arrangement and dimensions of the
<br />equipment.
<br />Payments shall be made as follows: A down payment of sixty percent (60%) of the price shall be paid after we have completed processing your equipment
<br />requirements, and orders are placed; the balance shall be paid on completion if the work is completed within a thirty day period. If the work is not completed
<br />within a thirty day period, monthly progress payments shall be made based on the value of any equipment ready or delivered, if any, and labor performed through
<br />the end of the month less a five percent (5%) retainage and the aggregate of previous payments. The retainage shall be paid when the work is completed. We
<br />reserve the right to discontinue our work at any time until payments shall have been made as agreed and we have assurance satisfactory to us that subsequent
<br />payments will be made when due. Payments not received within thirty (30) days of the date of invoice shall be subject to interest accrued at the rate of eighteen
<br />percent (18%) per annum or at the maximum rate allowed by applicable law, whichever is less. We shall also be entitled to reimbursement from you of the
<br />expenses, including attorney’s fees, incurred in collecting any overdue payments.
<br />Any material removed by us in the performance of the work shall become our property.
<br />Our performance is conditioned upon your securing any required governmental approvals for the installation of any equipment provided hereunder and your
<br />providing our workmen with adequate electrical power at no cost to us with a safe place in which to work, and we reserve the right to discontinue our work in the
<br />building whenever in our opinion working conditions are unsafe. If overtime work is mutually agreed upon and performed, an additional charge thereof, at our
<br />usual rates for such work, shall be added to the contract price. The performance of our work hereunder is conditioned on your performing the preparatory work
<br />and supplying the necessary data specified on the front of this proposal or in the attached specification, if any. Should we be required to make an unscheduled
<br />return to your site to begin or complete the work due to your request, acts or omissions, then such return visits shall be subject to additional charges at our current
<br />labor rates.
<br />We shall retain a security interest in all material furnished hereunder and not paid for in full. You agree that a copy of this Agreement may be used as a financing
<br />statement for the purpose of placing upon public record our interest in any material furnished hereunder, and you agree to execute a UCC-1 form or any other
<br />document reasonably requested by us for that purpose.
<br />Except insofar as your equipment may be covered by an Otis maintenance or service contract, it is agreed that we will make no examination of your equipment
<br />other than that necessary to do the work described in this contract and assume no responsibility for any part of your equipment except that upon which work has
<br />been done under this contract.
<br />Neither party shall be liable to the other for any loss, damage or delay due to any cause beyond either parties reasonable control, including but not limited to acts
<br />of government, strikes, lockouts, other labor disputes, fire, explosion, theft, weather damage, flood, earthquake, riot, civil commotion, war, mischief or act of God.
<br />We do not agree under our warranty to bear the cost of repairs or replacements due to vandalism, abuse, misuse, neglect, normal wear and tear, modifications not
<br />performed by us, improper or insufficient maintenance by others, or any cause beyond our control.
<br />We shall conduct, at our own expense, the entire defense of any claim, suit or action alleging that, without further combination, the use by you of any equipment
<br />provided hereunder directly infringes any patent, but only on the conditions that (a) we receive prompt written notice of such claim, suit or action and full
<br />opportunity to assume the sole defense thereof, including settlement and appeals, and all information available to you for such defense; (b) said equipment is made
<br />according to a specification or design furnished by us; and (c) the claim, suit or action is brought against you. Provided all of the foregoing conditions have been
<br />met, we shall, at our own expense, either settle said claim, suit or action or shall pay all damages excluding consequential damages and costs awarded by the court
<br />therein and, if the use or resale of such equipment is finally enjoined, we shall at our option, (i) procure for you the right use of the equipment, (ii) replace the
<br />equipment with equivalent noninfringing equipment, (iii) modify the equipment so it becomes noninfringing but equivalent, or (iv) remove the equipment and
<br />refund the purchase price (if any) less a reasonable allowance for use, damage or obsolescence.
<br />THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE EXCLUSIVE WARRANTIES GIVEN: WE MAKE NO OTHER WARRANTIES EXPRESS OR
<br />IMPLIED, AND SPECIFICALLY MAKE NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE; AND THE EXPRESS WARRANTIES
<br />SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ANY SUCH WARRANTIES AND ANY OTHER OBLIGATION OR LIABILITY ON OUR PART.
<br />Under no circumstances shall either party be liable for special, indirect, liquidated, or consequential damages in contract, tort, including negligence, warranty or
<br />otherwise, notwithstanding any indemnity provision to the contrary. Notwithstanding any provision in any contract document to the contrary, our acceptance is
<br />conditioned on being allowed additional time for the performance of the Work due to delays beyond our reasonable control.
<br />Your remedies set forth herein are exclusive and our liability with respect to any contract, or anything done in connection therewith such as performance or breach
<br />thereof, or from the manufacture, sale, delivery, installation, repair or use of any equipment furnished under this contract, whether in contract, in tort, in warranty
<br />or otherwise, shall not exceed the price for the equipment or services rendered.
<br />It is agreed that after completion of our work, you shall be responsible for ensuring that the operation of any equipment furnished hereunder is periodically inspected.
<br />The interval between such inspections shall not be longer than what may be required by the applicable governing safety code.
<br />By accepting delivery of parts incorporating software you agree that the transaction is not a sale of such software but merely a license to use such software solely
<br />for operating the unit(s) for which the part was provided, not to copy or let others copy such software for any purpose whatsoever, to keep such software in
<br />confidence as a trade secret, and not to transfer possession of such part to others except as a part of a transfer of ownership of the equipment in which such part is
<br />installed, provided that you inform us in writing about such ownership transfer and the transferee agrees in writing to abide by the above license terms prior to any
<br />such transfer.
<br />Our work shall not include the identification, detection, abatement, encapsulation or removal of asbestos, polychlorinated biphenyl (PCB), or products or materials
<br />containing asbestos, PCB’s or other hazardous substances. In the event we encounter any such product or materials in the course of performing work, we shall
<br />have the right to discontinue our work and remove our employees from the project until you have taken the appropriate action to abate, encapsulate or remove such
<br />products or materials, and any hazards connected therewith, or until it is determined that no hazard exists (as the case may require). We shall receive an extension
<br />of time to complete the work hereunder and compensation for delays encountered as a result of such situation.
<br />This Agreement constitutes the entire understanding between the parties regarding the subject matter hereof and may not be modified by any terms on your order
<br />form or any other document, and supersedes any prior written or oral communication relating to the same subject. Any amendment or modifications to this
<br />Agreement shall not be binding upon either party unless agreed to in writing by an authorized representative of each party. Both parties agree that any form issued
<br />by you that contains any terms that are inconsistent with those contained herein shall not modify this Agreement, nor shall it constitute an acceptance of any
<br />additional terms.
<br />
<br />
<br />
<br />DocuSign Envelope ID: 47D12065-7220-4277-A47F-FC1DAC0CA54F
|