Installation Terms and Conditions:
Applicability:
These terms and conditions (“Terms and Conditions”) apply to any purchase order, sales order, order acknowledgment or other agreement related to the installation or one-time services (any of which may be referred to herein as “Agreement”) entered into by and between The Ollivier Corporation, a California corporation (“Ollivier,” pronounced Oh-liv’-eeay), and the customer identified in any Agreement (“Customer”) issued by Ollivier and subject to the terms of acceptance as described below. These Terms and Conditions may be modified at any time by Ollivier by posting the revised Terms and Conditions on Ollivier’s website in its terms and conditions section.
Acceptance:
Customer agrees to be bound by these Terms and Conditions upon written acceptance of an Agreement by Customer. These Terms and Conditions shall bind Ollivier upon all of the following: i) written acceptance with a signature of an authorized representative of Ollivier; ii) Ollivier’s receipt of any initial payment identified on the face of the agreement; iii) the agreement does not contain any material arithmetic error, unauthorized price, or change; and iv) completion by Ollivier of a satisfactory evaluation of Customer’s credit. With Ollivier’s acceptance of an Agreement and these Terms and Conditions, the Customer may order additional equipment and services through submission of purchase orders. The provisions of these Terms and Conditions will govern the purchase of all such orders.
Conflicts:
Any discrepancy that exists between what is written on the face of an Agreement, in attachments, and/or in these Terms and Conditions shall be resolved according to the following order of precedence: i) what is written on the face of an Agreement, ii) what is written in the attachments to an Agreement, then iii) what is written in these Terms and Conditions.
Customer-Provided Items:
The Customer will be responsible for the payment or procurement of the following:
a) Provision of space for mounting our electronic equipment.
Provision of space for mounting Ollivier’s electronic equipment. The space must have an operating environment suitable for the specified equipment.
b) Electrical Conduit and Raceways
Supply and installation of risers, conduit between the risers, raceways, core drilling, and conduit, equipped with draglines.
c) Government Fees and Taxes
Payment of sales and user taxes, as well as permits and fees to the appropriate governmental authority for the equipment, as further described below.
d) Lightning Protection
Although Ollivier’s equipment includes the original manufacturer’s standard lightning and power protection, there is no guarantee provided against damage due to either of these sources. Additional protection is available and encouraged for customers to obtain.
e) Lifts, Extra-Long Ladders, Mechanical Hoists, Elevators
Unless specified in the proposal, lifts, construction elevators, cranes, extra-long ladders, and/or hoists, etc., are to be supplied by the Customer, or else Customer agrees to be charged and pay for such services at cost plus twelve percent (12%).
f) Parking
The cost of parking incurred by Ollivier at the Customer’s facility during the project duration.
g) Single Point of Contact
The customer will assign a single point (person) of contact or project coordinator who will serve continuously for the project’s duration without interruption. The project coordinator will provide Ollivier with a single set of comments following any reviews of interim deliverables. The project coordinator will also referee conflicting comments among personnel, including comments by local law enforcement. Reviews by Client will be completed within five (5) business days.
j) Reviews
The customer will provide a review of interim deliverables within three business days.
k) Other Conditions and Items Not Provided by Ollivier
Ollivier does not provide the following with the installation, and such services shall be obtained by the customer from a third party if necessary or desired:
1. Asbestos removal, if necessary.
2. Custom paint for devices, if specified by the client.
3. All power supplied.
4. All conduit supplied.
Equipment
The systems, other equipment, and accessories specified on Ollivier’s proposal or Statement of Work and in Customer’s purchase order(s), which are accepted subsequently by Ollivier, including additions, replacements, and replacement parts, are collectively referred to as the “Equipment”. Ollivier will supply the hardware required to complete the work outlined in the Statement of Work. Equipment and materials not explicitly stated here as being supplied or installed by Ollivier will be provided or installed by others.
Coordination with Other Trades
Ollivier will coordinate with other related trades, as required. Additional equipment required to achieve any interface or integration, unless specified in our proposal, can be made available as an above-contract item.
Equipment Order, Delivery, and Installation
The date of order of any Equipment, delivery, and installation shall be established upon mutually agreeable dates. The Equipment order, delivery, and installation of Equipment will be deemed complete, for the purpose of invoicing, when 50% of the Equipment, by value, has been ordered, delivered and installed, respectively.
Work Stoppage
Time is of the essence. Stoppage of work (“Stoppage”) may cause Ollivier to sustain unplanned costs resulting from increased carrying charges on equipment purchased, equipment stored, as well as de-mobilization and re-mobilization of Ollivier resources. These costs are incurred whether the whole installation project or any part relating to Ollivier’s work is delayed because the Customer or the Customer’s other trades, vendors, or professionals fail to perform in a timely manner to the degree that Ollivier experiences Stoppage. Any Stoppage that extends beyond 30 calendar days will warrant a change order adjusting the contract (or other agreed upon) amount. Calculation of the change order will be performed as follows: The amount of the unpaid contract dollar value at the time of the Stoppage multiplied by seven percent for each thirty (30) day period of stoppage. This calculation will be prorated for each thirty (30) day period following the initial thirty (30) days of stoppage. The change order amount will be invoiced in addition to all other invoices subject to the contract. The change order will be executed prior to resumption of work. Unscheduled delays of less than 30 days that are caused by a party other than Ollivier may be treated as Additional Work as defined below.
Additional Work
Work that is requested outside of an Agreement or statement of work will be treated as “Additional Work.” Additional Work will be performed subject to: i) a service ticket, or ii) a change order form. All work is to be performed during normal working hours (8:00 am – 4:30 pm). Overtime required for out-of-scope work, testing, or technical assistance will be performed subject to Additional Work.
Prevailing Wage
A surcharge of twelve percent (12%) will be added to the total labor quoted in the event that Ollivier is required to comply with a union’s prevailing wages for the location of any project. This surcharge will cover increased labor rates, union fees, and other union charges, including, but not limited to, payment of union-mandated drive-time and related costs, unless otherwise provided for in the Quote or Installation Quotation and Agreement.
Taxes and Fees
Customer will pay when due all taxes, including sales, use, privilege, excise, personal property, value-added, and other taxes are assessed. This, however, does not include federal or state income or franchise taxes imposed on Ollivier, as well as all other governmental charges, assessments, fees, and any related interest or penalties imposed with respect to the Equipment or the transactions stipulated by this agreement. If Customer fails to pay any such amount when due, Ollivier may elect to pay it and Customer will promptly reimburse Ollivier for such payment, together with interest from the date paid at the Overdue Rate (as defined below). If Ollivier is required to obtain any local permit or license to install the equipment at customer’s sites, customer will reimburse Ollivier for any related fees or charges.
Obligations and Late Charges
The customer will pay Ollivier or any assignee (“Assignee”) of Ollivier the purchase price for the Equipment, installation, maintenance, and any other charges set forth on the face of the agreement or any applicable purchase order. All such payments and other obligations in connection with such agreement or any such purchase order are referred to collectively as the “Obligations”. Ollivier is authorized to process such payments via any means, physical or electronic, that it deems appropriate. Customer will make all payments to Ollivier or an Assignee at such address as Ollivier or Assignee designates in writing. Ollivier or its Assignee shall invoice Customer for all Equipment, installation, maintenance, and other charges, and payment shall be due within thirty (30) days after the date of invoice. For “Equipment Only” orders, equipment charges shall be invoiced upon shipment from the relevant shipping point. For “Installation Projects,” equipment charges shall be invoiced upon either: i) submission by Ollivier of the purchase order; or ii) receipt at Ollivier’s local staging area, as specified on the face of the agreement, under which circumstances installation charges shall be invoiced at the milestones specified on the face of the agreement. For “Installation only,” installation charges shall be invoiced at the milestones specified above. Maintenance charges shall be billed in advance in installments as specified on the face of the agreement and installation charges shall be invoiced upon completion of identifiable milestones or as specified on the face of the agreement. If Ollivier or an Assignee does not receive any payment within 10 days after its due date, customer will pay a late charge of five percent (5%) of the amount due, plus .002% (2/10 of one percent) for each day beginning retroactively to the first day following the due date to the date payment is made by customer, or the maximum permitted by law for such payment. Any such late charges, if assessed, will become part of the Obligations.
Security Interest
In order to secure payment and performance of all Obligations and any other current or future obligations of Customer to Ollivier in connection with any agreement between them, Customer grants Ollivier and/or an Assignee a continuing security interest in the Equipment, all other similar equipment provided by Ollivier in the possession or control of Customer, and all proceeds thereof, including insurance proceeds (collectively known as the “Collateral”). This security interest will terminate only on the discharge in full of all the Obligations and all such other obligations of Customer to Ollivier. Whenever requested by Ollivier or an Assignee, Customer will execute and deliver one or more financing statements and such other documents, and Customer will do all such acts and things as Ollivier or such Assignee reasonably requests to further evidence, perfect, maintain, or enforce the security interest. Ollivier and/or an Assignee may file or record this agreement and execute and file, at any time, financing statements with respect to the Collateral signed only by Ollivier or such Assignee. Customer irrevocably appoints Ollivier and its Assignees its true and lawful attorneys-in-fact to execute and file all such documents on behalf of Customer.
Training and Use of the Equipment
The customer will permit Ollivier to train its personnel in the proper use of the Equipment on or prior to installation, and customer will provide training for its new personnel. The customer will use the Equipment only in accordance with Ollivier’s specifications and instructions.
Remote Access for Service
Ollivier may install a remote computing connection to the customer’s local area network. This remote connection enables Ollivier to complete the initial configuration and provide prompt service in the future without having to travel to the customer’s location. Ollivier will equip customer personnel to enable and disable Ollivier’s remote capability as needed.
Power Requirements
The customer shall provide electrical power and telephone lines for the Equipment in accordance with Ollivier’s specifications.
Supplies
All supplies, components, and replacement parts used in conjunction with the Equipment, which are not furnished by Ollivier, must be approved by Ollivier. Ollivier will not be liable for any loss, damage, or injury to the Equipment, Customer, its employees or agents, or any other person caused by the use of non-conforming supplies, components, or replacement parts. Ollivier will not be required to make any adjustment, replacement, or repair under any applicable warranty or maintenance service if Customer uses non-conforming supplies, components, or replacement parts in conjunction with the Equipment.
Warranties and Limitation of Liability
Ollivier warrants that the Equipment be free from defects in material and workmanship upon delivery and installation by Ollivier personnel. Ollivier’s sole obligation under this warranty will be to repair or replace broken or defective Equipment as necessary and to return the Equipment to normal operating order, at no charge for parts for the first 12 months and no charge for labor for the first 90 days following the substantial completion and/or acceptance by the customer, unless extended warranties are executed.
EXCEPT AS SET FORTH IN THIS SECTION, OLLIVIER DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT AND/OR ITS OPERATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. If Ollivier or its employees or agents fail for any reason to provide maintenance service, make faulty repairs or adjustments, or damage any equipment, whether or not caused by negligence, Ollivier’s sole liability to customer will be to make any repair, adjustment, or replacement necessary to return such equipment to normal operating order. In no event will Ollivier, its employees, or agents be responsible for failure to provide service due to causes beyond their control. No failure to provide maintenance service will release the customer from any obligations. Ollivier, its employees, and agents will in no event be liable for any incidental, consequential, or other direct or indirect damages suffered by customer, any of its employees, agents, or any other person arising out of or in connection to the use or performance of the Equipment, even if they have been advised of the possibility of such damages. Ollivier neither assumes nor authorizes any employee or agent to assume for Ollivier any other liability in connection with the sale or use of the equipment.
Customer agrees that any liability of Ollivier, its employees, or agents due to any failure of the Equipment or any other act or omission by Ollivier or any of its employees or agents in the design, installation, maintenance, or service of the Equipment will be limited exclusively to a sum equal to the purchase price of the Equipment involved, as liquidated damages and not as a penalty. Furthermore, Customer will hold harmless and indemnify Ollivier and its officers, directors, employees, and agents against any loss, liability or expense (including reasonable attorneys’ fees and disbursements) in excess of the amount provided above as liquidated damages on account of any such failure, act, or omission. Customer agrees to obtain and maintain liability insurance from financially sound and reputable insurance companies against malpractice and other liabilities and risks of a character usually insured against by healthcare facilities.
Default
Customer will be in default if, while any Obligations are outstanding: i) Customer fails to pay when any Obligation or amount is due under any agreement with Ollivier, or if any insurance required to be maintained by Customer lapses, and such failure continues for 10 days; ii) Customer fails to observe or perform any other covenant of this agreement or any such other agreement and such failure continues for 20 days after written notice thereof to Customer; iii) any levy, seizure, or attachment of the Equipment occurs; iv) Customer becomes insolvent or makes an assignment for the benefit of creditors, or any insolvency, bankruptcy, reorganization, or similar proceedings by or against Customer are instituted, or a receiver, trustee, or liquidator of Customer or a substantial part of its assets is appointed, with or without Customer’s consent; and/or v) Customer ceases to do business.
If Customer is in default, Ollivier may, in its sole discretion, without further notice, exercise one or more of the following remedies: i) declare all unpaid Obligations immediately due and payable; ii) terminate the agreement or any applicable purchase order; iii) enter, with or without notice or legal process, any premises in which the Collateral may be located and take possession of or remove it, without any liability for doing so; iv) mandate Customer to return the Collateral promptly to Ollivier; v) use, hold, sell, lease, or otherwise dispose of any or all of the Collateral, in whole or in part, free and clear of any rights of Customer, at public auction, private sale, or lease, and have the right to bid and purchase at such sale; vi) enforce Customer’s performance of the Obligations or recover damages for the breach thereof; and vii) exercise any and all rights and remedies available to Ollivier under law, including those of a secured creditor under the Uniform Commercial Code.
In addition, Ollivier will, at its election, be entitled to recover immediately as liquidated damages for its losses, and not as penalty, an amount equal to the sum of: 1) all Obligations due but unpaid, plus 2) an amount equal to: a) the difference between: i) all remaining Obligations not then due, and, ii) the costs which Ollivier would have incurred in the performance of its obligations hereunder after the default, if the default had not occurred, as reasonably determined by Ollivier; b) discounted to present value as of the date of default at the rate of seven percent. The customer agrees that such liquidated damages are reasonable and appropriate, as Ollivier markets similar equipment in the ordinary course of its business and maintains inventories to meet customer needs. Customer will pay Ollivier on demand: a) any deficiency in the payment of any Obligations remaining after Ollivier’s exercise of its rights and remedies, and b) all expenses incurred by Ollivier in connection with the enforcement of the agreement, the collection, removal, repossession, holding, preparation for sale, and disposition of the Collateral, as well as paying or settling liens and claims against the Collateral and other similar activities, including the maximum attorneys’ fees permitted by law. All such expenses will be part of the Obligations. At Ollivier’s request, Customer will assemble the Collateral and make it available to Ollivier at a place designated by Ollivier. Obligations that are not paid when due (including those which have been accelerated) and the liquidated damages provided above will bear interest at the lower of 20% per annum or the maximum rate allowed by law (the “Overdue Rate”) from the date due, or in the case of liquidated damages, from the date of Customer’s default, until paid.
If Ollivier is required by the Uniform Commercial Code to give Customer notice of the time and place of any public sale is to be made, or the time after which any private sale or other disposition of the Collateral has been made, such notice will be deemed to be reasonable if mailed by registered or certified mail to the last known address of Customer at least seven days prior to such action. Customer waives any right to require notice of sale or other disposition, the place thereof, and the manner and place of any advertising. Customer waives all rights to notice and to a judicial hearing with respect to the repossession of the collateral by Ollivier if Customer defaults hereunder. All remedies of Ollivier are cumulative and in addition to every other remedy available to Ollivier, whether now or hereafter existing. Ollivier may, to the extent permitted by law, exercise any remedies concurrently or separately, and the exercise of any one remedy will not be deemed an election of such remedy over other nor shall it preclude the exercise of any other remedy. Ollivier’s failure at any time to enforce any right or remedy available to it or to require Customer’s performance of any of the provisions of this agreement, or any delay in so doing, will not be deemed to constitute a waiver of any such right or remedy, nor will it in any way affect Ollivier’s right to enforce any such provision thereafter.
Non-Solicitation and Non-Hire Agreement
Customer will not solicit, recruit, employ, hire, refer, or otherwise cause Ollivier personnel to terminate, reduce, or otherwise alter or modify his or her employment or contractual relationship with Ollivier. Without further notice, Customer accepts financial responsibility for any and all consequential loss incurred by Ollivier as a result, direct or indirect, of things including but not limited to missed business opportunities, related attorney fees, and training for replacement personnel and recruiting fees. Customer’s failure to comply with this condition as it is written here and explicitly in such cases that Ollivier personnel become employees, direct contractors, or enter any other business relationship with the Customer, shall not be construed as an attempt by Ollivier to restrain Ollivier personnel from seeking suitable employment or earning a livelihood.
Confidentiality
The customer will not disclose or permit disclosure of any information or data related to any of the Equipment without the prior written consent of Ollivier. Nor shall Customer use or permit the use of such information or data to compete with Ollivier in any manner.
Assignment
The customer acknowledges that Ollivier may elect to assign or grant a security interest in this agreement, or with regard to the Equipment, to institutional lenders or others. Customer consents to such assignment, grant, and any reassignment, without notice to Customer. Any Assignee will have all of the rights, powers, privileges, and remedies of Ollivier. An Assignee’s interest in this agreement, as well as the Obligations and the Equipment, will be free from any claim, defense, setoff, recumbent, counterclaim, or other right, whether arising hereunder, under any Maintenance Service Agreement or otherwise, which Customer may be entitled to assert against Ollivier or any other person. Customer will not assert any such claim or right against any Assignee, it is agreed that any Assignee will not assume or be deemed to assume any obligation of Ollivier hereunder under any Maintenance Service Agreement or otherwise.
Additional Agreements of Customer
Until the Obligations are paid in full: a) Customer will not, without Ollivier’s prior written consent: i) assign, transfer, pledge, or otherwise encumber any Equipment, the Agreement, or any interest herein, or lease, sublease, or relinquish possession or control of the Equipment; ii) make or cause to be made any alteration, attachment, or repair to the Equipment other than by Ollivier; or iii) remove the Equipment from the installed location; b) the Equipment at all times will remain personal property and Customer will not cause or permit any Equipment to become permanently affixed to any real property; and c) Customer will comply with all laws and regulations applicable to the possession and use of the Equipment and will use the Equipment in the regular course of its business in a careful and proper manner. The provisions of this Section will also apply to any
Collateral which is not Equipment.
The customer represents and warrants that any site at which the Equipment is to be installed is free of asbestos and any other hazardous or toxic substances. If any such substance exists at any site, Ollivier will not be required to install or service the Equipment at such site and Ollivier may arrange, at customer’s expense, for the Equipment to be installed and serviced by persons qualified to handle such substances.
Governing Law; Mediation; Arbitration
Governing Law. This agreement will be governed by and construed in accordance with the laws of the State of California, applicable to agreements made and fully to be performed in such state, without giving effect to conflicts of laws principles, it is agreed that this agreement bears a reasonable relation to such laws.
Mediation. In the event of a dispute between the parties arising from or relating to this agreement, including, without limitation, construction, interpretation, implementation, or enforcement of this agreement or the performance or breach of any provision in this agreement, the parties shall mediate the dispute before one (1) mediator appointed by JAMS or Judicate West in Los Angeles County, California.
Arbitration. In the event such mediation does not resolve the dispute within sixty (60) days from the date the dispute arises, either party may demand arbitration by JAMS or Judicate, before one (1) arbitrator, under its then-existing Commercial Arbitration Rules, such arbitration to be final, conclusive, and binding on the parties. Judgment on the award rendered by the arbitrator may be entered by any court having proper jurisdiction. The arbitrator shall base his/her award on the terms of this agreement, and he/she will follow relevant and applicable law and judicial precedents. The arbitrator shall render the award in writing and, unless both parties agree otherwise, shall include an explanation of the reasons for his/her award, the findings of fact and conclusions of law upon which his/her award is based. The arbitration would take place in Los Angeles County, California. Notwithstanding the foregoing, any party may seek or assert entitlement to injunctive relief or specific performance in court as an initial matter and shall have no prior obligation to establish in mediation or arbitration the entitlement to injunctive relief or specific performance. For such injunctive relief or specific performance, Ollivier and Customer submit to the personal jurisdiction of the state and federal courts of the State of California and agree that such courts will have jurisdiction over them, within the venue in Los Angeles County.
Miscellaneous
No provision of this agreement may be changed, waived, discharged, or terminated, except by an instrument in writing executed by the party against which enforcement is sought. All notices or other communications must be provided in writing and will be deemed to have been given when mailed, postage prepaid, by registered or certified mail, addressed to Ollivier or Customer, at the address set forth in the agreement, or such other address as is properly designated by notice. If a court of competent jurisdiction declares any provision of this agreement illegal or unenforceable, it will be ineffective only to the extent of such illegality or unenforceability, without affecting the validity and enforceability of the other provisions. The headings in this agreement are inserted for convenience of reference only and will not be used in the interpretation of this agreement.