Terms and Conditions
Version: December 20, 2011
The parties to this agreement (“Agreement”) are: i) Ollivier Corporation (“Ollivier”)(pronounced Oh-liv'-eeeay) , a California corporation; and ii) The Customer as defined by the entity identified on the face of this Agreement immediately below the first date written above.
This Agreement will be binding on Ollivier only if the Company accepts it as evidenced by: i) Written acceptance with a signature of an authorized representative of Ollivier; ii) Ollivier receives any initial payment identified on the face of this Agreement; iii) the Agreement does not contain any material arithmetic error or authorized price or change; and iv) Completion by Ollivier of a satisfactory evaluation of Customer’s credit. With the Ollivier’s acceptance of this Agreement, Customer may order additional equipment and services thr ough submission of its purchase orders. The provisions of this Agreement will govern the purchase of all such orders.
Unless otherwise stated on the face of this Agreement, in other attachments, or in the terms and conditions stated herein apply. Any discrepancy that exists between what is written: i) On the face of this Agreement; ii) In any of the attachments; and, iii) in these Terms and Conditions shall be determined first according to that written on the face (i), then according to what is written in the attachments (ii) and according to what is written in the terms and conditions.
Additionally, the customer will be responsible for the following:
Provision of space for mounting our electronic equipment. The space must have an operating environment suitable for the specified equipment.
Electrical Conduit and Raceways
Supply and installation of risers, conduit between the risers, raceways, core drilling and conduit, equipped with draglines.
Government Fees and Taxes
Sales and user taxes, permits and fees to the appropriate governmental authority.
Although our 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 may be desirable.
Coordination with Other Trades
We 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.
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 will be charged at cost plus 12%.
The cost of parking at the facility during project duration.
Remote Access for Service
Ollivier will install remote computing connection to the customer’s local area network. The remote connect enables Ollivier to complete the initial configuration and provide prompt service in the future without traveling to the customer location. Ollivier will enable customer personnel to enable and disable Ollivier’s remote capability as needed.
Single Point of Contact
Customer will assign a single point of contact or project coordinator who will serve continuously for the duration of the project without interruption. The project coordinator will provide Ollivier with a single set of comments following any reviews of interim deliverables. The project manager will referee conflicting comments among personnel
Customer will provide review of interim deliverables within 3 business days.
1. Asbestos removal, if necessary, by others.
2. Custom paint for devices, if specified by the client, by others.
3. All power supplied by others
4. All conduit supplied by others
Equipment Order, Delivery or Installation
To be established upon mutually acceptable dates. The Order, Delivery or Installation of Equipment will be deemed complete, for the purpose of invoicing, when fifty percent of the Equipment, by value, has been ordered, delivered or installed, respectively.
Transportation; Risk of Loss; Insurance.
All orders will be shipped F.O.B:
i) Ollivier’s designated shipping point;
ii) Directly to Customer; or
iii) To a staging area designated, in writing and submitted to Ollivier no later than the date and time of the shipment request. Customer will pay all expenses, including insurance, for handling and transporting the Equipment.
Customer will bear all risk of loss or damage to, or theft of, the Equipment once it has left the designated shipping point. Until the Obligations are paid in full, Customer will, at its expense, keep the Equipment insured under policies issued by reputable insurance companies with commercial property coverage based on full insurable value. Customer w ill provide evidence of such insurance to Company or any Assignee, on request. If the Equipment suffers a casualty covered by insurance, Customer will apply all insurance proceeds to pay the Obligations, but will remain liable for any Obligations remaining unpaid.
Time is of the Essence
Work Stoppage (Stoppage) cause Ollivier to sustain unplanned costs resulting from increased carrying charges on equipment purchased, equipment stored, de-mobilizing and re-mobilizing Ollivier resources. These costs are incurred whether the whole 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 such that Ollivier experiences Stoppage. Any Stoppage which 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 7% for each 30-day period of stoppage. This calculation will be prorated for each 30-day period following the initial 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 others may be treated as Additional Work.
Work that is requested outside of the statement of work will be treated as "Additional Work". Additional Work will be performed subject to a:
i)Service ticket; or
ii) Change order.
A surcharge of 12% will be added to the total labor quoted here in the event that Ollivier is required to comply with a union's prevailing wages for the location of this or any project. This surcharge will cover increased labor rates, union fees and other union charges, payment of union-mandated drive time and related costs.
The systems, other equipment and accessories specified on Ollivier’s proposal and in Customer's purchase order(s) which are accepted subsequently by Company, including additions, replacements and replacement parts are referred collectively as the “Equipment”.
This Agreement will be binding on Ollivier only if Ollivier accepts it, as evidenced only by either: i) The signature of an authorized representative of Ollivier or receipt and deposit of the initial payment; and ii) this Agreement do es not contain any mathematical error or unauthorized price or change. With Ollivier’s authorization, Customer may order additional Equipment through submission of its purchase orders or change orders. The provisions of this Agreement will govern the purchase of all Equipment under such orders.
Taxes and Fees
Customer will pay when due all taxes, including sales, use, privilege, excise, personal property, value added and other taxes, but not federal or state income or franchise taxes imposed on Ollivier, and all other governmental charges, assessments, fees and any related interest or penalties imposed with respect to the Equipment or the transactions contemplated 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 in Section 12). If Ollivier is required to obtain any local permit or license to enable it to install the Equipment at Customer's sites, Customer will reimburse Company for any related fees or charges.
Obligations; Late Charges
Customer will pay Ollivier or any assignee of Ollivier (an "Assignee") the purchase price for the Equipment, the installation, maintenance and any other charges set forth on the face of this Agreement or any applicable purchase order. All such payments and other obligations in connection with this 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, Ollivier deems appropriate. Customer will make all payments to Ollivier or any Assignee at such address as Ollivier or such Assignee designates in writing. Ollivier or its Assignee shall invoice Customer for all Equipment, installation, maintenance and other charges, and payment shall be due Net 30 days after 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 this Agreement, and installation charges shall be invoiced at the milestones specified on the face of this 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 this Agreement and installation charges shall be invoiced upon completion of identifiable milestones or as specified on the face of this Agreement. If Ollivier or any Assignee does not receive any payment within 10 days after its due date, Customer will pay a late charge of 1.25% per month or 15% per annum or the maximum amount permitted by law on such payment. Any such late charges, if assessed, will be part of the Obligations.
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 other agreement between them, Customer grants to Ollivier and any 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, 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 any 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 any 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; Use of the Equipment
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. Customer will use the Equipment only in accordance with Ollivier’s specifications and instructions.
Customer shall provide electrical power and telephone lines for the Equipment in accordance with Ollivier’s specifications.
All supplies, components and replacement parts used in conjunction with the Equipment, which are not furnished by Ollivier, must meet Ollivier’s specifications. Company 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 re pair under any applicable warranty or maintenance service if Customer uses non-conforming supplies, components or replacement parts in conjunction with the Equipment.
Warranties; Limitation of Liability
Ollivier warrants that the Equipment will be free from defects in materials and workmanship on delivery or, if Ollivier installs the Equipment, on installation. Ollivier’s sole obligation under this warranty will be to repair or replace broken or defective Equipment as necessary to return the Equipment to normal operating order, at no charge for parts for the first twelve (12) months and no charge for labor for the first ninety (90) days following the earlier of substantial completion and/or acceptance by the customer.
EXCEPT AS SET FORTH IN THIS SECTION, OLLIVIER DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT OR ITS OPERATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE OR USE. If Ollivier or its employees or agents fail for any reason to provide maintenance service or 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 or 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 customer from any obligations. Ollivier and 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 with 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 liabilit y in connection with the sale or use of the equipment.
Customer agrees that any liability of Ollivier or its employees or agents due to any failure of the Equipment or any other act or omission of 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. Further, 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 such as Customer with adequate and prudent minimum limits of liability.
Customer will be in default if, while any Obligations are outstanding: i) Customer fails to pay when due any Obligations or any amount due under any other 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 it s assets is appointed, with or without Customer's consent; 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 this Agreement or any applicable purchase order as to any Equipment; iii) Enter, with or without notice or legal process, any premises in which the Collateral may be located and take possession or remove it, without any liability for doing so; iv) Cause 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 or private sale or lease, and have the right to bid and purchase at such sale; vi) Enforce Customer's performan ce 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 loss of a bargain, and not as penalty, an amount equal to the sum of: 1) All Obligations then 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 Company would have incurred in the performance of its obligations hereunder after the default, if the default had not occurred, all as reasonably determined by Ollivier; B) Discounted to present value as of the date of default at the rate of 7%. 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 any of its rights and remedies; and b) All expenses incurred by Ollivier in connection with the enforcement of this Agreement, the collection, removal, repossession, holding, preparation for sale and disposition of the Collateral, 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 under the Uniform Commer cial Code to give Customer notice of the time and place of any public sale or the time after which any private sale or other disposition of the Collateral is to be 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 exiting. 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 or to 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 s uch right or remedy, nor will it in any way affect Ollivier’s right to enforce any such provision thereafter.
Non-Solicitation, 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, including missed business opportunities, from Customer’s failure to comply with this condition as written here.
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 or use or permit the use of such information or data to compete with Ollivier in any manner.
Customer acknowledges that Ollivier may elect to assign, or grant a security interest in this Agreement or in 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 Ollivie r. An Assignee's interest in this Agreement, 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 being 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 Company’s prior written consent: i) Assign, transfer, pledge or otherwise encumber any Equipment or this 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 or 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.
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.
Maintenance Service (if applicable)
Ollivier will, only upon written request from the Customer, provide maintenance service for the equipment listed in Attachment A (the “Maintained Equipment”) in accordance with the provisions outlined immediately below for the charges, if any, specified on the face of this Agreement. Upon approval via a separate maintenance contract, maintenance service would commence upon the expiration of the warranty period and continue throughout the term specified on the face of the agreement. Upon expiration of the original term, the client will have the option of renewing the maintenanc e for a successive twelve month periods unless otherwise specified at Ollivier’s then prevailing maintenance charges unless one party serves written notice of cancellation on the other party at least 30 days prior to the expiration of the then current term. Either party may terminate any such renewal term upon 30 days written notice. However, in no event shall Customer be permitted to terminate maintenance service until all obligations under this agreement have been paid in full.
Maintenance service is intended to keep the Maintained Equipment in, or restore it to, manufacturer’s specifications but does not assure uninterrupted operation of the Maintained Equipment. Ollivier shall have full and free access to the Maintained Equipment during the hours specified on the face of this Agreement to perform maintenance services. For services rendered at Customer’s request outside of such hours, Customer will be charged for labor, travel time and expenses at Ollivier’s established rates. Such modifications shall be made at a time mutually agreeable to Customer and Ollivier. Subject to O llivier’s instruction and direction, Customer shall at its own expense and when necessary, perform certain duties and services of a housekeeping nature, such as but not limited to, the replacement of printer toner, ink and paper, and cleaning of magnetic tape heads.
Customer shall provide, free of charge and with ready access, storage space for spare parts, working space, heat, light, ventilation, electric current and outlets for the use of Ollivier’s maintenance personnel. Customer shall maintain site environmental conditions throughout the term of this Agreement in accordance with the specifications established by Ollivier for the Maintained Equipment. Customer’s personnel shall not perform maintenance or attempt repairs to Maintained Equipment except as specified and approved by Ollivier in writing.
EXCLUSIONS: Ollivier is not responsible for servicing tags, labels, pedestal covers, access cards, ink, toner, paper, printer material or other cabinetry. Ollivier shall not be responsible for any failure to render maintenance service due to work stoppage, fires, floods or causes beyond its control. Customer will be charged at Ollivier’s applicable service charges then in effect for service (including labor, travel charges, parts and materials) requested or required as a result of: (1) reinstallation or relocation of Maintained Equipment; (2) any service calls prompted by systems alarming due to tag proximity (migrating tags); (3) any request by Customer for changes to Maintained Equipment; (4) accident, disaster, lightning and other acts of God, misuse (including, but not limited to, use of the Maintained Equipment not in accordance with Ollivier’s specifications or operational procedures), neglect, abuse, alterations, adjustments, repairs or maintenance not done by Ollivier, or by parts, accessories, attachments or other devices not furnished by Ollivier; (5) failure to continually provide suitable installation environment with all facilities as prescribed by Company including, but not limited to, adequate space and electrical power; or (6) any causes external to the Maintained Equipment, such as but not limited to, power failure or air-conditioning failure.
Parts removed and taken by Ollivier shall become the property of Ollivier. Any Maintenance Aids provided by Ollivier hereunder, including but not limited to maintenance software, are the property of Ollivier and are proprietary to it. Customer agrees to keep confidential and to utilize its best efforts to prevent and protect the contents of these Maintenance Aids or any part thereof, from unauthorized disclosure by its agents, employees or customers. Customer agrees that it will not make or have made copies of any Maintenance Aids or part thereof without the prior written consent of Ollivier. If, after the initial term of maintenance service, any item of Maintained Equipment is, in Ollivier’s opinion, in need of refurbishment or overhaul, Ollivier shall submit to Customer a description of the necessary refurbishment and Ollivier’s charges to Customer for such refurbishment. If Customer does not elect to have Company refurbish such equipment, Ollivier shall: (i) be relieved of maintenance responsibility for such equipment under the terms of this Agreement, and (ii) upon mutual agreeme nt provide maintenance service for such equipment on a time and materials basis in accordance with its published terms, conditions and charges for such services.
After the initial term of maintenance service, Customer, by written amendment to this Agreement, may change the maintenance service provided under this Agreement, to another plan then offered by Ollivier to its customers for the equipment specified herein. In the event of such change, the published rates and terms then in effect for the maintenance plan selected shall apply. Changes in specifications for the Maintained Equipment may result in an adjustment of the Maintenance Service Fee. Such adjustment will become effective upon the installation of the specific change. Ollivier may change the rates specified herein effective upon expiration of the first year of maintenance service or at the end of any calendar month thereafter, by giving at least thirty (30) days written notice. Rental charges for any special equipment such as forklifts, man lifts, cherry pickers, etc. required to provide the maintenance service hereunder shall be paid by cus tomer as additional charges.
Customer shall not cause modifications to be made, or accessories, attachments, features or devices to be added to the Maintained Equipment without the prior written approval of Ollivier. Upon mutual agreement, Ollivier shall perform modifications to the Maintained Equipment and Ollivier shall adjust the Maintenance
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 being agreed that this Agreement bears a reasonable relation to such laws. 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, with venue in Los Angeles, in connection with any matter arising out of this Agreement and that service of process may be made by registered or certified mail, return receipt requested, to the last known address of the party being served. Process may also be served by any other legal means and Ollivier may bring an action with respect to any such matter in another jurisdiction.
If the Equipment contains computer programs, this Agreement is subject to the additional provisions of the Software License Addendum attached to this Agreement. This Agreement and such Addendum, if applicable, constitute the entire agreement between Ollivier and Customer with respect to their subject matter, and no representation, statement, term or condition not set forth he rein will bind Ollivier. Except with respect to terms set forth in a subsequent customer purchase order regarding delivery dates, quantities and prices which have been agreed to by Ollivier, this Agreement will supersede and will not be modified by any such purchase order or any other document, without Ollivier’s written agreement. 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 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 its address set forth on the face of this 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.