PLEASE READ THESE GENERAL TERMS AND CONDITIONS CAREFULLY BEFORE SIGNING THE SERVICE AGREEMENT.
THESE GENERAL TERMS AND CONDITIONS FORM PART OF AND ARE INCORPORATED INTO THE SERVICES AGREEMENT. FEDORA INTERTECH IS WILLING TO PROVIDE SERVICES TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THESE TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS
1.1 The services furnished hereunder by Fedora Intertech are sometimes referred to herein collectively as the “Services” and individually as a “Service”. Services include equipment installation, consulting, inspection, integration, maintenance, repair, and technical services, but do not include Monitoring Services, Software Services, or Extended Services. Services may be specified in (a) a written purchase order issued by Client that references this Agreement; (b) a proposal or service ticket issued by Fedora Intertech to Client and accepted by Client; or (c) a request by Client communicated to Fedora Intertech by telephone, email or facsimile (each an “Order”). For purposes of this Section, an email from Client, facsimile from Client, or purchase order issued by Client requesting the Services described in Fedora Intertech’s proposal or service ticket evidences Client’s acceptance of Fedora Intertech’s proposal or service ticket. Orders are not intended to be separate or distinct contracts; Orders are intended to form part of this Agreement and to be subject to and governed by the terms and conditions of this Agreement, unless otherwise expressly provided within the Order. Any supplemental terms or conditions contained within an Order are limited in application to the scope of the Order, unless otherwise expressly provided within the Order. No Order is binding upon Fedora Intertech until the earlier of (i) Customer’s acceptance of Fedora Intertech’s proposal, or (ii) Fedora Intertech’s written express acceptance of Client’s purchase order, or (iii) the delivery of the requested Services to Client by Fedora Intertech.
1.2 Monitoring Services. Any reference to system monitoring services (“Monitoring Services”) in the Specific Terms or an Order is included for pricing purposes only. Monitoring Services, if requested by Client, are performed only pursuant to Fedora Intertech’s standard terms and conditions for Monitoring Services and are subject to a separate agreement.
1.3 Preventative Maintenance and Extended Service. Any reference to a fixed fee or fixed charge for an annual (or multi-year) program of preventative maintenance or extended-warranty services (collectively “Extended Services”) in the Specific Terms or an Order is included for pricing purposes only. Extended Services, if requested by Client, are performed only pursuant to Fedora Intertech’s standard terms and conditions for Extended Services and are subject to a separate agreement.
1.4 Software Services. Any reference to software service, software technical support, or software maintenance (collectively “Software Service”) in the Specific Terms or in an Order is included for pricing purposes only. Software Services, if requested by Client, are performed only pursuant to Fedora Intertech’s standard terms and conditions for software services and are subject to a separate agreement.
1.5 Excluded Services. Unless otherwise expressly agreed in writing between the parties, Fedora Intertech is not obligated to perform the following excluded services (each an “Excluded Service”): (a) eliminating electro-magnetic interference or radio-frequency interference (RFI), which may hinder operation of any installed system; (b) the refurbishment or replacement of doors or door jams; (c) remedying any contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, or from radio-active, toxic, explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly; (d) remedying any contamination by any hazardous material or hazardous waste; (e) identification, testing, removal, or disposal of hazardous materials; (f) any other service excluded in the applicable Specific Terms or Order. Excluded Services requested by Client may be provided at Fedora Intertech’s discretion. Fedora Intertech, however, may decline to perform any Excluded Services for any reason or for no reason. Excluded Services (if any) performed by Fedora Intertech will be charged on a time-and-materials basis at Fedora Intertech’s applicable service rates in effect at the time the service is supplied, unless otherwise agreed in writing between by the Parties.
1.6 Software License Purchases. Software is licensed and not sold to Client. Fedora Intertech may resell third-party software licenses to Client, however, Fedora Intertech is not the licensor of software. Software is subject to the terms and conditions of the license between Client and the third-party licensor of the Software (each a “Software License”). Software Licenses are between Client and the licensor. Client further acknowledges and agrees that Fedora Intertech is not party to any Software License and has no obligation to Client and no liability to Client under any Software License.
1.7 Client acknowledges and agrees that Fedora Intertech will perform the Services in reliance upon the information provided by Client.
1.8 Code Compliance. Fedora Intertech has no obligation to inspect Client’s site(s) for compliance with laws or regulations unless expressly specified in the Specific Terms or Order. Client acknowledges that local authorities, including for example a fire marshal, may establish additional requirements for compliance with local codes which may affect the cost of Services. Any additional Services or equipment required to comply with such additional requirements will be provided at an additional charge to Client.
1.9 Normal Business Hours. All Services under this Agreement will be performed during the normal business hours of Fedora Intertech’s normal business days (Monday to Friday 7:00 am – 5:00 pm, excluding Fedora Intertech holidays) (“Normal Business Hours”) unless otherwise expressly specified in the applicable Specific Terms or Order or otherwise expressly agreed in writing between the Parties. “Holiday” means any state or U.S. federal holiday for which financial institutions or post offices are generally closed in the state where the customer site is located, Good Friday, and the Friday immediately following Thanksgiving.
1.10 Estimates. Any estimate of charges in an Order is only an estimate, not a fixed charge or an agreed limit, unless otherwise expressly agreed in writing.
1.11 Changes, Alterations, Additions. Changes, alterations, and additions to the Specific Terms, Order, any plans, any specifications, or any installation schedule shall be invalid and of no effect unless approved in writing by Fedora Intertech. Should changes be approved by Fedora Intertech that increase or decrease the cost of the Services to Fedora Intertech, the parties shall agree, in writing, to the change in price prior to performance of Services. However, if no agreement is reached prior to the time for performance of said Services, and Fedora Intertech elects to perform said Services so as to avoid delays, then Fedora Intertech’s estimate as to the value of said Services shall be deemed accepted by Client. In addition, Client shall pay for all extra Services requested by Client or made necessary because of incompleteness or inaccuracy of plans or other information submitted by Client with respect to the premises, type of occupancy or use of the premises, or other details of the Services to be performed. In the event that the layout of Client’s facilities varies from the site plans, blue prints, or drawings submitted by Client to Fedora Intertech, or has been altered, or is altered prior to the completion of the Services, Client shall advise Fedora Intertech, and the prices, delivery and completion dates shall be changed by Fedora Intertech as may be required.
2.1 The pricing for any equipment in the Specific Terms or Order is based on the number of devices to be installed as set forth in the Specific Terms or Order. If the actual number of devices requested by Client and installed by Fedora Intertech is greater than that set forth in the Specific Terms or Order, the price will be increased accordingly. If the actual number of devices delivered to Client’s site is greater than the number set forth in the Specific Terms or Order, then Fedora Intertech shall retain ownership of the excess devices and may remove them from Client’s site without any adjustment to the price. All prices are exclusive of applicable taxes and duties.
2.2 Additional Charges. The pricing for Services in the Specific Terms or Order is conditioned on the notes and assumptions (if any) set forth in the applicable Specific Terms or Order (“Notes and Assumptions”). Any variance from or exceptions to those Notes and Assumptions, whether arising from actual conditions on Client’s premises or change requests received from Client, may result in additional charges. Additional charges (if any) are calculated on a time-and-material basis at Fedora Intertech’s then-prevailing rates for material, labor, and related items, in effect at the time supplied. Additional charges for Services are determined by multiplying the number of hours of Service performed by Fedora Intertech’s applicable service rates in effect at the time Services are performed. Unless otherwise expressly agreed in writing, a trip fee is applicable to each visit of an Fedora Intertech technician to a Client site to perform Services (each a “Trip Fee”). Trip Fees are calculated in accordance with the trip fee rates and rules set out in the Fedora Intertech Rate Schedule in effect at the time the Services are performed. The Fedora Intertech Rate Schedule is found at https://www.intertechci.com/legal/service-rates/ [RT1] and is incorporated in this Agreement by this reference.
2.3 Service Rates; Fedora Intertech Rate Schedule[RT2] . Unless otherwise expressly specified in the applicable Specific Terms or Order, all Services are subject to the service rates set out in the Fedora Intertech Rate Schedule, as the Fedora Intertech Rate Schedule may be modified from time to time by Fedora Intertech with written notice to Client. The Fedora Intertech Rate Schedule may be changed, altered or amended by Fedora Intertech at any time and from time to time with thirty (30) days’ advance written notice to Client. Changes to the Fedora Intertech Rate Schedule will become effective immediately at the end of said notice period and will be deemed to modify and supplement the terms of this Agreement. IF ANY MODIFICATION OF THE RATE SCHEDULE IS UNACCEPTABLE TO CLIENT, CLIENT’S ONLY RECOURSE AND SOLE REMEDY IS TO TERMINATE THIS AGREEMENT WITH WRITTEN NOTICE TO FEDORA INTERTECH WITHIN THIRTY (30) DAYS OF SUCH NOTICE.
2.4 Prevailing Wages. “Prevailing Wage Work” means Services subject to the Davis-Bacon Act, the McNamara-O’Hara Contract Service Act, or any other federal, state, or municipal prevailing wage law. The prices for Services do not reflect prevailing wages unless otherwise expressly stated in the Specific Terms or Order. Client shall provide Fedora Intertech with prior written notice of all Prevailing Wage Work (a “Prevailing Wage Notice”). Each Prevailing Wage Notice shall: (i) clearly specify the Prevailing Wage Work requested; (ii) clearly identify the applicable prevailing wage law; and (iii) prominently state that the Services are subject to the prevailing wage law. If Client fails to give Fedora Intertech a Prevailing Wage Notice prior to the date of Fedora Intertech’s issuance of the applicable Specific Terms or Order, then (A) Client acknowledges that the prices quoted in the applicable Specific Terms or Order do not reflect prevailing wages; and (B) Client agrees to pay to Fedora Intertech such additional amount or amounts as will compensate Fedora Intertech for any increased cost arising from Fedora Intertech’s obligation to pay prevailing wages in connection therewith. Client shall defend, indemnify, and hold harmless Fedora Intertech and its respective officers, directors, employees, and agents, from and against any assessment, penalty, fine, forfeiture, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and claims (including but not limited to reasonable attorneys’ fees and investigation expenses) to, by, or against Fedora Intertech and/or its respective officers, directors, employees, and agents resulting (directly or indirectly) from, arising out of, or relating to Client’s failure to provide a timely and accurate Prevailing Wage Notice, regardless of the fault or negligence of a party indemnified hereunder.
3.1 Charges. Client agrees to pay Fedora Intertech the amounts specified in the Specific Terms and each Order (if any) together with any additional charges arising hereunder for Services performed hereunder (collectively referred to herein as “Charges”). Charges are due and payable by Client no later than thirty (30) days after the date of Client’s receipt of Fedora Intertech’s invoice unless otherwise specified in the applicable Specific Terms or Order. All invoices are payable without set-off or counter-claim and without any deduction or withholding.
3.2 Payment Methods. Unless otherwise agreed in writing between the parties, Client shall make all payments to Fedora Intertech by check, electronic transfer through the Automated Clearing House (ACH), or wire transfer to the account indicated on Fedora Intertech’s invoice without any cash discount or offset, and Fedora Intertech shall not be required to incur any expense to receive timely payment in full as required by this Agreement. Client shall be deemed to have performed its payment obligations only when Fedora Intertech’s bank has received payment of the respective sums due in actually and finally collected funds.
3.3 Late Payment. If Client fails to make any payment when due, in addition to any other rights and remedies available, Fedora Intertech shall have the right, at Fedora Intertech’s sole discretion, to suspend performance of any Services and/or withhold further deliveries of materials, until the account is current. In the event payment is not received when due, Fedora Intertech may, at its discretion, assess late fees at the rate of 1.5% per month or the maximum rate allowed by law. Client agrees to pay all costs of collection, including without limitation costs, fees, and attorneys’ fees.
3.4 Taxes. Client assumes all liabilities for taxes, including any applicable VAT, sales, use, personal property, ad valorem, excise, and other taxes, duties, levies or charges imposed by any governmental authority (but excluding any taxes payable by Fedora Intertech with respect to its net income) arising out of or connected with the provision of the Services or invoicing of Charges.
3.5 Disputed Charges. If Client disputes any fee, expense, or other charge, Client will promptly provide Fedora Intertech with notice of such dispute. Client and Fedora Intertech will use their best efforts to resolve the dispute within (15) days. Such amount (or such amount as may be ultimately determined to be correct) shall be due (5) days after the dispute is resolved. Client shall have no obligation to pay a disputed amount until resolution of the dispute. The existence of a good faith billing dispute shall not constitute valid ground for non-performance hereunder, except only as to the payment of the amount in dispute.
4. Client Responsibilities.
4.1 Unless otherwise expressly agreed in writing between the parties, Client shall: (a) grant Fedora Intertech technicians full and free physical access to the facilities, equipment, and network connections required to perform the Services under this Agreement; (b) furnish adequate space for storage and handling of materials, light, heat, ventilation, electric current (120VAC), elevator service (if applicable), and all necessary permits; (c) provide all LAN connections, phone lines, and internet access (suitable for downloading software images by Fedora Intertech on-site personnel) for any equipment installed and/or serviced by Fedora Intertech hereunder; (d) procure all software and pay for all applicable software licenses and software support fees, except for items supplied by Fedora Intertech in accordance with the applicable Specific Terms or Order; (e) supply required schematics and drawings, except for items that are to be supplied by Fedora Intertech in accordance with the applicable Specific Terms or Order; (f) provide a safe and secure work environment, outlets, and local telephone extension for the use of Fedora Intertech service personnel; (g) provide hoists, harness, and ladders for servicing equipment that is installed outdoors or that is installed indoors but which requires similar equipment in order for Fedora Intertech service personnel to safely install and/or service it; (h) supply and install any conduit or wire mold (furnished with drag lines); (i) comply with all laws, codes, and regulations; and (j) fulfill any additional Client responsibilities specified in the applicable Specific Terms or Order.
4.2 Legacy Systems. For previously installed systems (each a “Legacy System”) for which Client requests Service, Client represents and warrants that Client is the owner of the Legacy System, or, if not the owner, that Client has authority from the owner to grant Fedora Intertech access to the Legacy System and to have Fedora Intertech perform the Services (if any) contemplated by the Specific Terms or Order on such Legacy System, including (if applicable) the repair, modification, replacement and/or removal of the Legacy System.
4.3 Hazardous Materials. Client represents that, except to the extent that Fedora Intertech has expressly acknowledged in writing Client’s prior written notice of the following hazards within the applicable Specific Terms or Order, to the best of Client’s knowledge, after reasonable inquiry and investigation, there is no: (a) “permit confined space,” as defined by OSHA; (b) risk of infectious disease; (c) need for air monitoring, respiratory protection, or other medical risk; or (d) asbestos, asbestos-containing material, formaldehyde or other potentially toxic or otherwise hazardous material contained in or on the surface of the floors, walls, ceilings, insulation or other structural components of the area of any building where Services are required to be performed under this Agreement. All of the foregoing are hereinafter referred to as “Hazardous Conditions”. If Hazardous Conditions are encountered by Fedora Intertech during the course of Fedora Intertech’s Services, the discovery of such conditions shall constitute an event beyond Fedora Intertech’s control and Fedora Intertech shall have no obligation to further perform in the area where the Hazardous Conditions exist until the area has been made safe by Client as certified in writing by an independent testing agency, and Client shall pay disruption expenses and re-mobilization expenses as reasonably determined by Fedora Intertech. This Agreement does not provide for the cost of capture, containment or disposal of any hazardous waste materials or hazardous materials encountered during performance of the Services. As between the parties, hazardous waste materials and hazardous materials on Client’s premises are at all times the responsibility and property of Client. Notwithstanding anything to the contrary, Fedora Intertech is not responsible for identifying, testing, removing, or disposing of any hazardous waste materials or hazardous materials.
4.4 Client Representations. Client represents and warrants that all walls, doors, skylight windows and other elements of the premises on which Services are to be performed, as now constructed or to be constructed, are or will be placed and maintained in such condition, at Client’s expense, as to permit the safe servicing and/or installation of the system(s) to be installed and/or serviced hereunder.
4.5 Telephone, Cellular, Network Connections. Client represents, warrants, and agrees that Client is responsible for the proper installation, connection, maintenance and repairs of any telephone line, LAN, internet service, public utility or other system or network for the transmission of signals from the relevant components of any system specified in the Specific Terms or an Order and that Fedora Intertech has no responsibility therefor.
5. Term. Upon Client’s acceptance, the terms and conditions of this Agreement will apply retroactively to the date Fedora Intertech first performed Services on Client’s behalf and shall remain in effect until terminated pursuant to the terms hereof.
6.1 Termination by Either Party. This Agreement may be immediately terminated by a party in the event: (a) the other party breaches or fails to perform any of its obligations in any material respect, and such breach or failure continues uncured for thirty (30) days after receipt of written notice of a breach; or (b) the other party becomes insolvent or proceedings are instituted by or against it under any provision of any federal or state bankruptcy or insolvency laws.
6.2 Termination by Fedora Intertech. This Agreement may also be immediately terminated by Fedora Intertech in the event that: (a) any payment due from Client to Fedora Intertech remains overdue for a period of more than thirty (30) days; or (b) Client attempts to assign or otherwise transfer its rights, obligations, or duties under this Agreement.
6.3 Effects of Termination; Survival. Notwithstanding anything to the contrary, the exercise of any rights of termination by Fedora Intertech hereunder shall not affect any of Fedora Intertech’s rights which have accrued prior to termination, including without limitation Fedora Intertech’s right to receive Charges that accrued prior to (or at) termination as provided in this Agreement. Sections 7.2, 7.3, 7.5, 7.6, 8.1, 8.2, 8.3, 8.4, 8.5, 9.1, 9.2, 9.3, 9.4, 9.5, 10.6, 10.11, 10.12, 10.17, and 10.18 shall survive the termination of this Agreement.
7. Limited Warranties; Warranty Exclusions; Warranty Disclaimer.
7.1 Limited Warranties.
7.1.1. Equipment. Subject to the limitations and exclusions herein, Fedora Intertech warrants any equipment (excluding software and batteries) supplied by Fedora Intertech pursuant to this Agreement to be free from defects in material and workmanship under normal use for a period of one (1) year from the date of first beneficial use of all or any part of said equipment, provided, however, that Fedora Intertech’s sole liability, and Client’s sole remedy, under this limited warranty is the repair or replacement, at Fedora Intertech’s sole option, of the equipment or any part thereof which Fedora Intertech determines is defective.
7.1.2 Services. Subject to the limitations and exclusions herein, Fedora Intertech warrants for a period of one (1) year from the date Services are performed, that Services will be performed by trained individuals in a professional and workman-like manner; provided, however, that Fedora Intertech’s sole liability, and Client’s sole remedy, under this limited warranty is, at Fedora Intertech’s option, either to correct the non-conformity or to re-perform any non-conforming Service for no additional charge.
7.1.3 Software. Subject to the limitations and exclusions herein, Fedora Intertech warrants that any software supplied by Fedora Intertech pursuant to this Agreement, as well as software contained in or sold as part of any equipment supplied by Fedora Intertech pursuant to this Agreement, will reasonably conform to its published specifications in effect at the time of delivery for a period of one (1) year from the date of first beneficial use of all or any part of said software; provided, however, that Fedora Intertech’s sole obligation and sole liability with respect to software, and Client’s sole remedy, shall be to make available published modifications, designed to correct inherent defects, which become available during the warranty period, on condition that Client has returned the registration form (if any) delivered with the software.
7.2 Warranty Exclusions. Notwithstanding anything to the contrary, Fedora Intertech has no obligation to Client hereunder if Client’s claim is for normal wear and tear or results from or arises out of: (a) the use of equipment in combination with any software, hardware, supplies, accessories or any other materials or services not furnished by Fedora Intertech; (b) the use of the equipment in a manner or environment, or for any purpose for which the equipment manufacturer did not design the equipment or in violation of the manufacturer’s recommendations or instructions on use; (c) any alteration, modification, repair, or enhancement of the equipment by Client or any third party not approved in writing by Fedora Intertech; (d) failure to continually provide a suitable operating environment for all equipment or systems as prescribed by Fedora Intertech and/or the equipment manufacturer, including, but not limited to, the failure to provide, or the failure of, adequate and regulated electrical power, air conditioning or humidity control; (e) accident or disaster, or other acts of God, including, but not be limited to, fire, flood, water, wind, lightning; (f) power-line transients (including voltage, current or energy spikes); (g) mechanical, electrical or electronic interconnection to equipment and devices not supplied by Fedora Intertech; or (h) electro-magnetic interference or radio-frequency interference (RFI) caused by equipment and devices not supplied by Fedora Intertech; or (i) electrical work external to the equipment furnished by Fedora Intertech; (j) intentional misuse, vandalism, terrorism, riots, or any other criminal acts; (k) contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, or from radio-active, toxic, explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly; (l) contamination by any hazardous material or hazardous waste.
7.3 Notwithstanding anything to the contrary, no representation or other affirmation of fact, including without limitation statements regarding capacity, suitability for use, or performance of the systems, equipment, software, or Services whether made by Fedora Intertech’s employees, agents, or otherwise that is not specifically contained or referenced in Section 7.1 shall be deemed to be a warranty by Fedora Intertech for any purpose, or give rise to any liability of Fedora Intertech whatsoever. Fedora Intertech makes no warranties and expressly disclaims all warranties and liabilities for any telecommunications, internet, or data transmission services that may be used in connection with any equipment or software. Fedora Intertech makes no warranties and expressly disclaims all warranties and liabilities for any batteries that may be supplied by Fedora Intertech.
7.4 Warranty service (if any) will be performed during Fedora Intertech’s Normal Business Hours. If Client requests warranty service at other than Normal Business Hours, warranty service will be charged to Client on a time-and-materials basis at Fedora Intertech’s then current service rates. If Client requests warranty service after the expiration of the warranty period in Section 7.1 or service that is outside the scope of the warranty in Section 7.1, the Service will be charged to Client on a time-and-materials basis at Fedora Intertech’s then applicable service rates. If Client requests service on any equipment that is not covered by the warranty in Section 7.1, the service will be charged to Client on a time-and-materials basis at Fedora Intertech’s then applicable service rates. All repairs or adjustments that are or may become necessary to equipment or software covered by a warranty in Section 7.1 shall be performed by an authorized representative of Fedora Intertech. Any repairs, adjustments or interconnections to equipment or software covered by a warranty in Section 7.1 that are performed by Client or any third party not authorized by Fedora Intertech shall void all warranties on said equipment or software.
7.5 WARRANTY DISCLAIMER. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1, FEDORA INTERTECH MAKES NO REPRESENTATIONS AND GRANTS NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND FEDORA INTERTECH SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ANY WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES WITH RESPECT TO THE SERVICES PERFORMED OR THE PRODUCTS, SYSTEMS, SOFTWARE, OR EQUIPMENT SUPPLIED HEREUNDER. FEDORA INTERTECH MAKES NO WARRANTY, EXPRESS OR IMPLIED, THAT ANY SYSTEMS IT INSTALLS OR THE SERVICES IT FURNISHES WILL AVERT OR PREVENT OCCURRENCES, OR THE CONSEQUENCES THEREFROM, WHICH THE SYSTEMS AND/OR SERVICES ARE DESIGNED TO DETECT.
7.6 FURTHER DISCLAIMERS. This agreement is not an extended warranty or service level agreement. Fedora Intertech does not guarantee any level of up-time for Client’s installed systems. FEDORA INTERTECH DOES NOT WARRANT THAT CLIENT’S SYSTEMS WILL OPERATE UNINTERRUPTED OR ERROR-FREE; NOR DOES FEDORA INTERTECH MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM CLIENT’S USE OF THE SYSTEMS OR AS TO THE ACCURACY, COMPLETENESS, RELIABILITY, USEFULNESS, OR CONTENT OF ANY INFORMATION OR DATA CONTAINED IN OR PROVIDED THROUGH THE SYSTEMS, OR THAT SYSTEMS WILL MEET ANY CLIENT REQUIREMENTS, WILL BE TIMELY, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE, OR DATA.
8. ALLOCATION OF RISK; INDEMNITY
8.1 THE SERVICES, SYSTEMS, SOFTWARE, AND EQUIPMENT FURNISHED BY FEDORA INTERTECH DO NOT CAUSE AND CANNOT ELIMINATE OCCURRENCES OF THE EVENTS THEY ARE INTENDED TO DETECT OR AVERT. FEDORA INTERTECH MAKES NO GUARANTY OR WARRANTY THAT THE SERVICES, SYSTEMS, SOFTWARE, OR EQUIPMENT SUPPLIED WILL DETECT OR AVERT SUCH EVENTS OR THE CONSEQUENCES THEREFROM. ACCORDINGLY, FEDORA INTERTECH DOES NOT UNDERTAKE ANY RISK THAT CLIENT’S PERSON OR PROPERTY, OR THE PERSON OR PROPERTY OF OTHERS, MAY BE SUBJECT TO INJURY OR LOSS IF SUCH AN EVENT OCCURS. IF ANY OTHER PERSON, INCLUDING CLIENT’S SUBROGATING INSURER, MAKES ANY CLAIM AGAINST FEDORA INTERTECH IN ANY WAY RELATING TO A FAILURE OF THE SYSTEM(S), SOFTWARE OR EQUIPMENT THAT ARE INSTALLED AND/OR SERVICED UNDER THIS AGREEMENT (EACH A “SYSTEM FAILURE”), THEN CLIENT SHALL, TO THE EXTENT PERMITTED BY LAW, INDEMNIFY AND HOLD FEDORA INTERTECH HARMLESS FROM ANY AND ALL SUCH CLAIMS, INCLUDING BUT NOT LIMITED TO CLAIMS OF FEDORA INTERTECH’S NEGLIGENCE, AND FURTHER INCLUDING THE PAYMENT OF ALL DAMAGES, EXPENSES, COSTS AND ATTORNEYS’ FEES, EXCEPT FOR INJURY OR LOSS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF FEDORA INTERTECH.
8.2 Notwithstanding anything to the contrary, Client acknowledges and agrees that: (i) Client is responsible for assessing and addressing security and safety risks in connection with Client’s personnel, property, and premises; (ii) all security decisions are the responsibility of Client and Client’s professional staff; (iii) Fedora Intertech does not make security or safety decisions concerning Client’s premises, personnel, or property; (iv) Fedora Intertech’s Services are not a substitute for competent, properly trained, and knowledgeable Client staff who bring professional judgment and analysis to the security and safety of Client’s personnel, property, and premises. Notwithstanding anything to the contrary, as between the parties, Client retains all responsibility for: (i) the security, life, and safety of all persons in any Client premises protected by a system installed and/or serviced by Fedora Intertech; and (ii) protecting against losses to Client’s own property and to the property of others in such premises. Client acknowledges that: (i) Fedora Intertech is not an insurer; (ii) any insurance, if desired, for whatever reason or purpose and in whatever amount, shall be obtained by Client; and (iii) the sums payable hereunder to Fedora Intertech by Client are based upon the value of equipment and services furnished by Fedora Intertech (and the allocation of risk herein) and are not related to the value of property belonging to Client or to others located on Client’s premises. Client agrees to look exclusively to Client’s insurer to recover for injuries or damage in the event of any loss or injury arising from or connected with a System Failure. TO THE EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, Client agrees that, IN THE EVENT OF A SYSTEM FAILURE, Fedora Intertech shall not be liable for any INJURY TO PERSON or PROPERTY damage, irrespective of origin, whether directly or indirectly caused by performance or non-performance of obligations imposed by this agreement or by negligent acts or omissions of Fedora Intertech its agents or employees IN CONNECTION WITH THE SERVICES.
8.3 Exclusive Remedy. It is agreed that it is impractical and very difficult to determine actual damages to person or property which may arise from the occurrence of events that the system installed or serviced by Fedora Intertech is designed to detect or avert. If, notwithstanding the provisions of Sections 8.1 and 8.2, Fedora Intertech should become liable for any losses or damages attributable to a SYSTEM failure in any respect, Fedora Intertech’s total liability to Client therefore shall be limited to the sum of $1,000, which Client agrees is reasonable and Client’s sole and exclusive remedy. The payment of this amount shall be Fedora Intertech’s sole and exclusive liability regardless of the actual amount of loss or damage incurred by Client.
8.4 Time to Bring Claims. Any claim of failure to perform against Fedora Intertech arising hereunder shall be deemed waived unless received by Fedora Intertech, in writing specifically setting forth the basis for such claim, within ten (10) days after such claim arises. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST FEDORA INTERTECH MORE THAN ONE (1) YEAR AFTER THE DATE OF THE INCIDENT THAT RESULTED IN THE LOSS, INJURY OR DAMAGE, OR THE SHORTEST DURATION PERMITTED UNDER APPLICABLE LAW IF GREATER THAN ONE (1) YEAR.
8.5 Additional Insured. During the term of this Agreement and for a period of two (2) years thereafter, Client shall maintain, at Client’s expense, commercial general liability insurance (“CGL”) that is: (i) written on an occurrence form; (ii) provides coverage for liability arising from all operations, including coverage for liability arising from premises, products, and completed operations for at least two (2) years following completion of the Services; (iii) names Fedora Intertech as an additional insured; (iv) includes an insurer’s waiver of subrogation in favor of each additional insured; (v) contains a cross liability and severability of interest clause; and (vi) is primary and non-contributory with any similar insurance coverage (primary or excess) maintained by the additional insured.
9. LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES.
9.1 LIMITATION OF AGGREGATE LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND EXCEPT FOR ANY DAMAGES ARISING OUT OF FEDORA INTERTECH’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE MAXIMUM AGGREGATE LIABILITY OF FEDORA INTERTECH ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, FEDORA INTERTECH’S SERVICES, OR THE SYSTEM(S) INSTALLED AND/OR SERVICED HEREUNDER, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL IN NO EVENT EXCEED THE GREATER OF (1) THE AMOUNT OF $1,000 OR (2) THE ACTUAL AMOUNT OF FEES PAID TO FEDORA INTERTECH BY CLIENT FOR THE SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE DAMAGES OR LOSSES OCCURRED OR THE CAUSE OF ACTION AROSE.
9.2 LIMITATION OF LIABILITY PER OCCURRENCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND EXCEPT FOR ANY DAMAGES ARISING OUT OF FEDORA INTERTECH’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE MAXIMUM AGGREGATE LIABILITY OF FEDORA INTERTECH ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, FEDORA INTERTECH’S SERVICES, OR THE SYSTEM(S) INSTALLED AND/OR SERVICED HEREUNDER, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL IN NO EVENT EXCEED PER OCCURRENCE THE ACTUAL AMOUNT PAID TO FEDORA INTERTECH BY CLIENT FOR SERVICES UNDER THE APPLICABLE SPECIFIC TERMS OR ORDER. FOR THE PURPOSES OF THIS SECTION 9.2, “OCCURRENCE” INCLUDES WITHOUT LIMITATION, CONTINUOUS OR REPEATED EXPOSURE TO SUBSTANTIALLY THE SAME GENERAL HARMFUL CONDITIONS.
9.3 EXCLUSION OF DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL FEDORA INTERTECH BE LIABLE FOR SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY SORT ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION AND REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE.
9.4 CLIENT AGREES AND ACKNOWLEDGES THAT THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN CLIENT AND FEDORA INTERTECH, THAT FEDORA INTERTECH’S PRICING REFLECTS THIS ALLOCATION OF RISK, AND BUT FOR THIS ALLOCATION OF RISK AND LIMITATION OF LIABILITY, FEDORA INTERTECH WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITH CLIENT.
9.5 IN JURISDICTIONS THAT LIMIT THE SCOPE OF OR PRECLUDE LIMITATIONS OR EXCLUSION OF REMEDIES OR DAMAGES, OR OF LIABILITY, SUCH AS LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED, THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR LIABILITY SET FORTH ABOVE ARE INTENDED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY HEREIN SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
10.1 Compliance. Subject to Section 1.8 and to Section 2.4, Fedora Intertech will, comply with all federal, state, and local laws and regulations applicable to Fedora Intertech’s performance of the Services. Notwithstanding the foregoing, Client acknowledges that Fedora Intertech’s compliance with prevailing wage laws is dependent on Client timely furnishing Fedora Intertech with accurate information concerning the Services requested by Client in accordance with Section 2.4. Fedora Intertech shall have no liability to Client in connection with violations of prevailing wage laws, if Client has failed to provide Fedora Intertech with a timely and accurate Prevailing Wage Notice.
10.2 Independent Contractor. Client and Fedora Intertech are independent contractors and nothing in this Agreement shall create or imply any agency relationship between the Parties, nor shall this Agreement be deemed to constitute a joint venture, partnership, franchise, or lease between the Parties. Neither Party shall have authority to bind or otherwise obligate the other in any manner whatsoever.
10.3 Assignment. Neither party may assign or otherwise transfer its rights, obligations, and/or duties under this Agreement without the prior written consent of the other party, given at the other party’s sole discretion. Notwithstanding the foregoing, Fedora Intertech shall have the right without any requirement to obtain consent hereunder, but with notice to Client, to assign this Agreement to a subsidiary or affiliate, or a successor by merger, acquisition or consolidation, or to an acquirer of all or substantially all of the assets of Fedora Intertech, its subsidiary or affiliate. Any prohibited assignment is void. Notwithstanding anything to the contrary, Fedora Intertech is permitted to (i) transfer, sell, pledge, or grant a security interest in any receivables arising under this Agreement and (ii) subcontract any of the Services to a third party.
10.4 Delays; Interruption of Service. Fedora Intertech shall not be liable for any delays, however caused, or for interruptions of service caused by accident, disaster, strikes, riots, floods, fire, explosions, earthquakes, hurricanes, tornadoes, tidal waves, flood, water, wind, lightning, power-line transients (including voltage, current or energy spikes), contamination by radioactivity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, contamination from radio-active, toxic, explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly, contamination from any hazardous material or hazardous waste, acts of God, loss of communication and or other signal transmission lines (whether foreseen or unforeseen), or by any event (whether foreseen or unforeseen) beyond the control of Fedora Intertech (each a “Force Majeure Event”). If a Force Majeure Event occurs, Fedora Intertech is excused from whatever performance is prevented by the Force Majeure Event to the extent prevented.
10.5 Confidential Information. “Confidential Information” means the terms of this Agreement and any information relating to or disclosed in connection with this Agreement by either Party, including without limitation, technical processes, security procedures, product designs, sales, pricing, costs, and other unpublished financial information, product and business plans, and projections and marketing data, and any information that is marked as confidential or proprietary or should be reasonably understood to be confidential or proprietary to the disclosing Party.
10.6 Confidentiality Obligation. The receiving Party shall take all reasonable steps (defined below) to ensure that the Confidential Information of the disclosing Party is retained by the receiving Party in strict confidence and is not used or disclosed to any third party except as may be reasonably necessary by a Party in connection with the performance of its duties or exercise of its rights under this Agreement. As used herein, “reasonable steps” means those steps the receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care.
10.7 Exceptions. Nothing in this Agreement shall in any way restrict the right of the receiving Party to use, disclose, or otherwise deal with any information that was: (a) already known to the receiving Party at the time of disclosure as evidenced by written documents in the receiving Party’s possession prior to disclosure; (b) generally available to the public or becomes publicly known through no wrongful act of the receiving Party; (c) received by the receiving Party from a third party who had a legal right to provide it; or (d) developed independently of knowledge of Confidential Information received by the receiving Party from the disclosing Party. Nothing in this Agreement shall prevent a receiving Party from disclosing information as may be required to be disclosed by the disclosing or receiving Party pursuant to any order of a court or governmental agency of competent jurisdiction if the Party compelled to disclose has notified the other Party of such order as soon as possible prior to disclosure.
10.8 Required Disclosures. Client acknowledges that Fedora Intertech may be required by law or other legal obligations to disclose the work price and/or the due dates for payments from Client to Fedora Intertech under the Specific Terms or Order (“Payment Information”) to third-party subcontractors that may perform work on a project in connection with the Specific Terms or Order (“Subcontractors”), and Client hereby consents to Fedora Intertech’s disclosure of Payment Information to Subcontractors.
10.9 Nothing in this Agreement will be construed to prevent or in any way limit Fedora Intertech from using general knowledge, skill, and expertise acquired in the performance of this Agreement in any current or subsequent endeavors. Client has no interest or claim to such endeavors.
10.10 Entire Agreement. This Agreement is the final and complete agreement between Fedora Intertech and Client with respect to the subject matter hereof. No representations, inducements, promises, or understandings in relation to the subject matter hereof, whether oral or written, exist unless expressly set forth in this Agreement, and this Agreement supersedes all prior understandings, agreements, contracts, or arrangements between the parties, whether oral or written, unless otherwise expressly incorporated in this Agreement. No agreement or other understanding purporting to add to or to modify the terms and conditions hereof is binding on Fedora Intertech unless agreed to by duly authorized representative of Fedora Intertech in writing, except for modifications of the Fedora Intertech Rate Schedule which are effective pursuant to the terms of Section 2.3. In resolving conflicts or discrepancies between any of the Agreement documents, the following order of precedence shall be used: (1) the General Terms; (2) the Specific Terms; (3) Orders (if any); (4) the Fedora Intertech Rate Schedule. Any additional or different terms or conditions contained in Client’s purchase order shall be deemed rejected by Fedora Intertech and shall be void and of no effect. No general terms and conditions of Client shall at any time form a part of the content of any contract or agreement between Client and Fedora Intertech, even if they are not further expressly rejected by Fedora Intertech. This Agreement shall be construed neither against nor in favor of either Party, but shall be construed in a neutral manner.
10.11 Fedora Intertech Intellectual Property. No right, express or implied, is granted by this Agreement to a Party to use in any manner the name or any other trade name or trademark of the other Party in connection with the performance of this Agreement or otherwise. As between the Parties, Fedora Intertech has and retains title to all intellectual property, trade secrets, ideas, concepts, know-how, methods, techniques, templates, and computer software and/or code conceived, developed, or reduced to practice by Fedora Intertech (“Fedora Intertech Intellectual Property”) prior to or after Fedora Intertech’s performance of the Services hereunder, and Client has no title or ownership interest therein. Furthermore, as between the Parties, Fedora Intertech has and retains all right and title to Fedora Intertech Intellectual Property which is developed during Fedora Intertech’s performance of the Services hereunder, including but not limited to any designs that are developed under this Agreement. Any design developed by Fedora Intertech, whether or not requested and/or paid for by Client, and whether or not developed in conjunction with Client’s employees or agents, is the exclusive property of Fedora Intertech.
10.12 No Solicitation. During the term of this Agreement and for a period of two (2) years thereafter, Client shall not (i) interfere with or attempt to disrupt the relationship, contractual or otherwise, between Fedora Intertech and any employee, independent contractor, consultant, client, vendor, or supplier of Fedora Intertech or (ii) induce or solicit any employee, independent contractor or consultant of Fedora Intertech to terminate employment or any other relationship with Fedora Intertech to become self-employed or to enter into any employment, independent contractor, consulting or other business relationship with any other person, firm or corporation. The foregoing will not apply to individuals hired as a result of the use of an independent employment agency (so long as the agency was not directed to solicit a particular individual) or as a result of the use of a general solicitation (such as an internet advertisement) not specifically directed to employees of Fedora Intertech.
10.13 Severability. If any provision of this Agreement is held to be void or unenforceable by any tribunal or administrative authority, or is unlawful or unenforceable under any applicable law, the remaining provisions are considered to be severable and their enforceability is not to be affected or impaired in any way by reason of such law or holding.
10.14 Notices. All notices under this Agreement must be in writing and be given by either party by prepaid mail, overnight courier service, or hand delivery. Notices to Fedora Intertech shall be sent to:
Fedora Intertech Security, LLC
1501 Preble Avenue
Pittsburgh, PA 15233
Notices to Client shall be sent to the address specified in the Specific Terms.
Either party may change its address and/or addressee for notices at any time with fifteen (15) days’ prior written notice to the other party.
10.15 This Agreement does not and is not intended to confer any rights or remedies upon any person other than the Parties.
10.16 Choice of Law. This Agreement, and all other aspects of the business relationship between the parties, is construed, interpreted, and enforced under and in accordance with the laws of the Commonwealth of Pennsylvania without regard to choice of law provisions. The United States Arbitration Act (Title 9 US Code) shall govern the interpretation and enforcement of the arbitration clause in this Agreement.
10.17 Dispute Resolution; Arbitration. If a dispute arises from or relates to this contract or the breach thereof, and if the dispute cannot be settled through direct discussions, the parties agree to, at Fedora Intertech’s election, endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures. Any unresolved controversy or claim arising from or relating to this contract or breach thereof shall be settled: (1) at Fedora Intertech’s election by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and in such case (a) judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, (b) the place of arbitration shall be Pittsburgh, Pennsylvania, and (c) except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties; or (2) in the event that Fedora Intertech does not elect arbitration as permitted in point (1) above, exclusively in the United States District Court for the Western District of Pennsylvania or, if such court does not have jurisdiction, in any court of general jurisdiction in Allegheny County, Pennsylvania and each party consents to the exclusive jurisdiction of any such courts and waives any objection which such party may have to the laying of venue in any such courts. Fedora Intertech retains the right to apply to any court of competent jurisdiction for provisional and/or conservatory relief, including pre-arbitral attachments or injunctions, and any such request shall not be deemed incompatible with an election to arbitrate or a waiver of the right to arbitrate. Any claim or controversy that Fedora Intertech elects to arbitrate shall be arbitrated on an individual basis and shall not be consolidated with a claim of any other party.
10.18 JURY TRIAL WAIVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, SYSTEMS, SOFTWARE, EQUIPMENT, OR SERVICES, INCLUDING CONTRACT, TORT, BREACH OF DUTY, AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR ALL PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
Fedora Intertech Commercial General Terms and Conditions Rev. 1.0 (8 Sept 2021)