1. Acceptance of Terms
By accepting a quoted sales price from Facility Gateway Corporation (“FGC”) in consideration for the services or products described in the Scope of Work contained herein, the customer (“Customer”) accepts and is bound to these Terms and Conditions. Any attached Manufacturer warranty information or riders are incorporated into this Agreement, and any warranty terms from the Manufacturer shall supersede any contrary or different warranty terms contained in these Terms and Conditions. Both FGC and Customer may be referred to herein individually as a “party” and collectively as the “parties.” This quote expressly limits acceptance to the terms and conditions stated herein. FGC objects to any additional or different terms of Customer. No additional or differing terms or conditions proposed or delivered by Customer, whether proposed or delivered verbally, through writing, electronic communications, facsimile, or any other means, shall retroactively alter the FGC price quotation, service agreement, or these Terms and Conditions in any way. This Agreement, including all of these Terms and Conditions, may only be amended in a writing signed by both parties. Any work authorized by Customer pursuant to this document shall be governed by the Terms and Conditions. Notwithstanding any terms or conditions contained in Customer’s purchase order, the Terms and Conditions of this Agreement shall prevail. This quote shall be valid for 30 days.
The aforementioned UPS System, Batteries, and/or other equipment are to be rented by Customer. Following the rental period, FGC will be selling the same units of equipment to another customer. In this setting, the proper care for and maintenance of the equipment is essential. FGC will use their best efforts and take all necessary precautions to ensure the proper care and timely return of the equipment, and FGC will require that Customer do the same.
2. Term of Agreement
Unless sooner terminated as provided herein, the term of this Agreement shall begin on the date of Acknowledgment ("Contract Commencement Date") and shall end with Factory Authorized Startup.
3. Payment Terms
The price to be paid by Customer shall be the amount set forth on the "Acceptance Page." FGC will invoice according to the following chart of payment terms. Use of any of the specified payment terms requires credit approval from FGC. Additional charges apply for contracts billed with extended payment terms. Late payments may be subject to a late payment charge of 1.5% per month (18% per year), or the maximum allowed by law, whichever is lower, on any outstanding and delinquent balance. All quoted prices are in US dollars. If a credit card payment is preferred, add 4% to the quoted price.
If Customer fails to pay FGC any amounts due pursuant to the Terms of this Agreement within the time period required hereunder, FGC may withhold services to be provided under this Agreement, even if this Agreement is still in effect. This shall be in addition to any other remedy which FGC may have under this Agreement or under applicable law.
Customer will pay any Municipal, County, State, or Federal sales, excise, or other taxes which may be levied upon the service or materials provided pursuant to this Agreement, and shall be responsible for all costs associated with Customer required union labor requirements.
FGC Terms
Equipment under $100,000 total
- Net 30 upon shipment
Equipment over $100,000 total
- 25% down, net 30 upon shipment for remaining balance
Generators
- 50% down, net 30 upon shipment for remaining balance
Start-up
- Net 30 upon shipment of equipment
Installations
- 50% down, net 30 upon "start of work"
Refurbished Equipment
- 50% down, net 30 upon shipment for remaining balance
Overseas Orders
- 100% down prior to shipment
“Turnkey”
- 50% down, net 30 upon shipment for remaining balance
Batteries
- Net 30 upon shipment
Time & Materials with Parts
- 50% net 30 upon shipment, 50% net 30 upon "start of work"
Time & Materials without Parts
- Net 30 upon "start of work"
Full Service Contracts
- Billed annually in advance - Net 30 or prior to contract start date, whichever is earlier
PM Contracts
- Net 30 upon completion of each PM
Designs and Assessments
- 25% down, net 30 upon completion for remaining balance
Please speak with your Facility Gateway representative if you need to discuss alternative terms.
“Start of work” means the first day the installer shows up at the work site with tools in hand, ready to begin work.
“Turnkey” is when FGC oversees one contractor hired to install one piece of equipment.
4. FGC Representations and Disclaimer of Warranties
IN THIS AGREEMENT, FGC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY PRODUCT OR SERVICE OFFERED BY FGC, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. ANY INFORMATION, SERVICES, OR EQUIPMENT EXCHANGED UNDER THIS AGREEMENT IS EXCHANGED ON AN “AS IS” BASIS. THE MANUFACTURER WARRANTY FOR THE EQUIPMENT IS THE SOLE REMEDY FOR PURCHASERS OF THE EQUIPMENT. FOR ANY AND ALL PRODUCTS SHIPPED, FGC WILL NOT BE RESPONSIBLE FOR DAMAGE THAT IS NOT LISTED ON THE CARRIER’S BILL OF LADING. IT IS THE RESPONSIBILITY OF CUSTOMER TO THOROUGHLY INSPECT EACH AND EVERY PALLET FOR POSSIBLE DAMAGE, INCLUDING, BUT NOT LIMITED TO, BROKEN SHRINK WRAP AND VISIBLE DAMAGE TO PRODUCT.
5. Customer Liability For Damages
Customer will be solely responsible and liable for any and all damage to the equipment, from the time that the equipment is delivered from FGC to the shipping or rigging services provider, up and until the time that the equipment is returned to the possession of FGC. Customer shall also be solely liable for any damages or losses to FGC caused by the improper care of the equipment, failure to keep the equipment in like new condition, or failure of the Customer to return to FGC the equipment at the end of the original rental term. This responsibility and liability includes, but is not limited to, damages caused by improper shipping, tipping of the unit beyond 15 degrees, dents, scratches, overload (beyond 80% of capacity) of the unit, improper installation or energizing of the unit, improper de-installation or shutdown, and any other direct or indirect damages to FGC caused by the failure of Customer to keep the unit in good condition, or to return the equipment to FGC as per the original timeline. Customer shall be solely liable and responsible for the cost of repairing the unit, or replacing the unit with a new system, in addition to any other costs, expenses, or damages that Customer may be liable for.
While the equipment is being rented by Customer, Customer shall engage FGC and only FGC to provide any and all scheduled and/or emergency services, maintenance, repairs, or procedures on the equipment, at FGC’s then current time and material rates. Customer must take the following precautions to ensure the proper care of the UPS System.
Installation - Customer must transfer the unit to the receiving dock padded and blanket wrapped, in an air ride truck. Once at the dock, Customer must use a rigging services provider to move the unit into position. Customer must protect against scratches, dents, and the unit tipping beyond 15 degrees. Additionally, the Customer must allow an FGC approved representative monitor the installation procedure. All electrical wiring, installation, breaker sizing, and energizing must all be done under the supervision of either: FGC personnel, OEM startup technicians, or other FGC approved and authorized personnel.
Usage - While the equipment is being used, Customer must take precautions to ensure that the unit is not overloaded by more than 80%.
De-installation - For proper shutdown and de-installation, the Customer must take all of the same precautions, and follow all of the same steps, as described above for installation and startup.
If there is damage to the equipment while not in the possession of FGC, in no event will Customer be liable to FGC for an amount less than $69,000 if the damage is limited to the UPS System, and $105,000 if the damage affects all of the equipment. In the event that Customer maintains possession of the equipment for longer than the original two month rental term, the equipment shall be rented by Customer on a month-to-month basis, with a rental price of $17,000 per month, due and payable on the first day of each new monthly rental term. The agreement shall be governed by the same terms as otherwise govern this agreement.
6. Termination, Changes in Order
Should Customer cancel or terminate this Agreement or the Purchase Order without FGC's written consent, FGC may recover from Customer a cancellation charge of not less than 20% of the purchase price if the equipment has not yet been shipped, or a restocking fee of not less than 25% of the purchase price if the equipment has been shipped. This amount will be due net 15 upon cancellation date. Customer shall not be entitled to any punitive, actual, consequential, indirect, or incidental damages as a result of termination of this Agreement.
If any changes are requested after Acceptance, such changes will be made only with the written consent of FGC and any cost related to the change shall be the responsibility of Customer.
7. Delay in Shipment
Those orders that are ready for shipment but cannot be delivered for reasons such as job site delay, credit holds, equipment held at Customer’s request for consolidation or pick-up, etc., will be assessed a 2% per month storage charge, starting ten (10) days after the scheduled ship date. Storage will be provided for up to three (3) months at which time the order will be subject to cancellation, with the appropriate cancellation charges applied.
8. Subcontractor Activities
FGC will operate as construction manager to assign maintenance and installation activities to vendors and subcontractors. FGC will maintain insurance certificates for operating subcontractors, and manage scheduled on-site activities, security clearances, and schedules. Subcontractor activities include one-time, non-recurring Time and Materials activities.
9. Time and Materials Activities
Time and Materials Activities are those billable events outside of the base construction management activities which require an equipment installation, an item replacement, or a part replacement. FGC may or may not be a vendor for any type of Time and Materials event.
10. Void of Manufacturer Warranty
Notwithstanding anything in these Terms and Conditions, the warranty terms from the Manufacturer shall be controlling. This manufacturer warranty does not cover damage or defect caused by misuse, improper application, wrong or inadequate electrical current/voltage/frequency, inadequate connections, inadequate water or drain services, user negligence, repair by non-OEM designated personnel, accident during shipment, tampering alterations, a change in equipment and/or accessory location or application, exposure to the elements, acts of God, force majeure event, theft, sabotage, or installation contrary to OEM’s recommendations or specifications. This warranty does not apply if serial numbers have been altered, defaced, or removed.
Repair of defective equipment, equipment parts, and/or accessories does not extend the respective original warranty period. All defective equipment, equipment parts, and/or accessories shall be the property of the OEM upon replacement.
This warranty shall constitute the sole and exclusive remedy of all purchasers and users of the equipment, equipment part, and/or accessories. OEM’s responsibility for equipment, equipment parts, and/or accessories shall not exceed one times the net equipment, equipment part, and/or accessory purchase price.
Replacement of a defective product/unit does not include cost of removal, shipping, or any charges or costs associated with unit replacement. Battery warranties are manufacturer based; batteries may be replaced with the same or like manufacturer.
11. Battery Information
General operating and warranty conditions for batteries: (1.) Charging float voltage should range between 2.27 to 2.30 volts per cell. (2.) Average annual ambient temperature shall not exceed 25 degrees Celsius (77 degrees Fahrenheit). Cell temperature shall not exceed 33 degrees Celsius (92 degrees Fahrenheit) for more than 30 days annually. (3.) Warranty does not cover damage due to neglect or abuse such as freezing, fire, flooding, explosives, or any acts of nature. (4.) Registration, installation, and periodic inspection reports are to be maintained by the end user and made available to FGC on request as required to support any warranty adjustment claim.
12. Insurance
Customer will be required to maintain insurance requirements as specified by FGC, and customer shall name Facility Gateway Corporation as the certificate holder, and as additional insured and with a waiver of subrogation as applicable.
13. Standard of care
FGC agrees to provide its professional services in accordance with the standards of other firms providing similar services. FGC will use its best efforts to satisfy the functional requirements of Customer for this Agreement. FGC shall comply with codes, laws and regulations applicable to performance of the Contract Duties and shall promptly notify Customer of any material deviations therefrom.
14. Indemnification
To the fullest extent permitted by law, Customer shall indemnify, defend (with counsel meeting the approval of FGC, not to be unreasonably withheld), save, and hold harmless FGC from and against all suits, claims, demands, liabilities, damages, losses, expenses, and costs, incurred by reason of any cause whatsoever, either in or about the premises, resulting from FGC carrying out the provisions of this Agreement, unless such damages or injuries result from: (i) the willful misconduct or gross negligence of FGC, (ii) acts or omissions by FGC in violation of this Agreement, and (iii) breach of fiduciary duty or fraud.
15. Waiver of Consequential Damages
Notwithstanding any other provision of this agreement, and to the fullest extent permitted by law, neither FGC nor any of its respective officers, directors, trustees, employees, or agents shall be liable to the other for, and Customer hereby waives any and all rights it may have to, consequential, punitive, incidental, or indirect losses or damages arising out of or connected in any way to this agreement, regardless of the foreseeability or the cause thereof. This waiver of consequential damages shall include, but is not limited to, loss of use, loss of profit, loss of business, loss of income, loss of reputation, or any other consequential damages that Customer may have incurred from any cause of action including, but not limited to, negligence, strict liability, breach of contract, and breach of either strict or implied warranty.
16. Confidentiality
In the performance of its duties hereunder, FGC may provide information to Customer that FCG considers confidential. All information provided by FGC to Customer that is marked "confidential" or otherwise identified by FGC to Customer as confidential ("Confidential Information") shall be maintained in strict confidence by Customer. Except as may be authorized by FGC in writing, Customer shall not disclose Confidential Information to any person other than Customer's attorneys, accountants, employees and subcontractors directly engaged in the activities under this Agreement. Customer shall use at least the same degree of care to protect the Confidential Information of FGC as it uses to protect its own confidential information, but not less than a reasonable degree of care. Involuntary disclosure, such as pursuant to a subpoena or court order, or made as part of any proceeding brought to resolve a dispute between Customer and FGC, shall not constitute a breach by Customer of this Section, provided that Customer shall give FGC prior written notice of such disclosure so that FGC may seek any protective orders they deem reasonably necessary.
Any processes, ideas, concepts and techniques used by FGC in the performance of its services under this Agreement are proprietary to FGC. Customer shall maintain all such proprietary information in strict confidence, and only for use pursuant to this Agreement. Customer shall not disclosure any such proprietary information to others, or use any such proprietary information in connection with services provided outside of this Agreement, without FGC's prior written consent.
The covenants set forth in this Section shall survive the termination of this Agreement and shall be specifically enforceable.
17. Employees
FGC is an independent contractor of Customer and FGC shall not be considered an agent, employee, joint venturer or partner of Customer. FGC will provide all employees necessary to perform its obligations under this Agreement, including managers and other supervisory personnel ("Employees"). All Employees will be employees of FGC and no joint employment will be initiated or maintained. FGC will pay all wages and salaries of all Employees and all benefits and costs relating to their employment, subject to reimbursement as provided herein. FGC will be solely responsible for hiring, training, discharging and disciplining all such Employees in accordance with its policies and procedures. FGC will direct its employees to obey and cooperate with all reasonable rules and regulations, which may be established by Customer for the work location and promptly provided to FGC.
18. Governing Law, Dispute Resolution
This Agreement, and all rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement shall be governed, interpreted, and enforced by the laws of the State of Wisconsin without regard to the conflicts of law provisions thereof.
The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court located in the State of Wisconsin, and the parties agree not to raise, and waive, any objections or defenses based upon venue or forum non conveniens.
19. Waiver of Jury Trial
FGC and Customer acknowledge that the right to trial by jury is a constitutional one, but that it may be waived. Each party, after consulting (or having had the opportunity to consult) with counsel of its choice, knowingly, freely, voluntarily, and for their mutual benefit, waives any right to trial by jury in the event of litigation regarding the performance or enforcement of, or in any way related to, this agreement.
20. Attorneys’ Fees
Should FGC be the prevailing party in any legal proceeding between the parties to this Agreement seeking to enforce any of its provisions, including, but not limited to, fee provisions, then FGC shall be entitled, in addition to such other relief as may be granted, to a reasonable sum for attorneys' and expert witnesses' fees, which shall be determined by the court or forum in such a proceeding or in a separate action brought for that purpose.
21. Remedies Cumulative
All remedies of FGC under these Terms or any related documents are cumulative and may, to the extent permitted by law, be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed to be an election of such remedy to the exclusion of all others or to preclude the exercise of any other remedy.
22. Force Majeure
Except for the payment of monies when due and owing, to the extent that a party hereto is prevented from fulfilling, in whole or in part, its obligations hereunder by reasons of any law or governmental regulation or other governmental act, or flood, war, fire, riots, strikes, explosion or other natural catastrophe or act of God, or acts of third parties or other causes beyond the reasonable control of such party (a "Force Majeure Event"), such party shall be temporarily excused from such obligations to the extent so prevented until the abatement of such Force Majeure Event. The term of this Agreement will not be extended by the period or duration of the Force Majeure Event. Notice of any such disability and the abatement will be immediately given to the other party by the party claiming same.
23. No Third Party Benefit
Nothing in this Agreement is intended to create a contractual relationship for the benefit of any third party. There are no intended beneficiaries of this Agreement except FGC and Customer.
24. Entire Agreement, No Other Representations, Headings
This Agreement constitutes the entire understanding of the parties with respect to the matters contained herein, superseding all prior oral or written understandings or communications between the parties, and it may be modified only by written agreement signed by the parties. There are no representations, warranties, promises or undertakings other than those contained herein.
The language used in this Agreement will be deemed the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against either party.
All headings herein are inserted for ease of reference only and are not to be considered in the construction or interpretation of any provision of this Agreement.
25. Severability
No provision or clause contained in this Agreement shall be construed, interpreted, or enforced in such a manner that violates any applicable laws or regulations. In the event that any term or provision of this Agreement is found to be void, invalid or unenforceable for any reason, that term or provision shall be deemed to be stricken from this Agreement, and the balance of this Agreement shall survive and remain enforceable.
26. Successors and Assigns
This Agreement is binding upon and shall inure to the benefit of the parties hereto and their successors and assigns.
27. Non-Waiver
No term or provision of this Agreement will be deemed waived and no default or breach will be deemed excused, unless such waiver or consent is in writing and signed by duly authorized representative of each party. No course of conduct or dealing between Customer and FGC shall act as a modification or waiver of any provision of this Agreement, unless such modification or waivers are contained in writing and signed by duly authorized representative of each party.
Failure on the part of any party hereto to object to any act of the other party or to declare the other party in default hereunder, irrespective of how long such failure continues, shall not constitute a waiver by such party of its rights hereunder.
28. Notice Information
Any and all notices, consents, demands, approvals, directives, or other communications required or permitted under this Agreement shall be in writing and shall be sent by certified mail, return receipt requested, and postage prepaid to the other party at the address provided to the other. Either party hereto may change its address as set forth herein for the receipt of notice by giving written notice to the other party in the manner set forth herein. The date of receipt shall be the date any notice is deemed given.
Liability for Damages
