Billing and Term
Customer shall pay or cause to be paid to OLIVER the full price for the Services as specified on the first page of this agreement. OLIVER shall submit invoices upon completion of each service rendered. Payment shall be due within (30) thirty days of the Invoice Date. Payments for Services past due more than (10) days shall accrue interest from the due date to the date of the payment at the rate of one and one-half percent (1.5%) per month, compounded monthly, or the highest legal rate then allowed. CUSTOMER shall pay all attorney and/or collection fees incurred by OLIVER in collecting any past due amounts. OLIVER shall have the right at the renewal period to increase the charges provided herein, to reflect any additional costs which may hereafter be incurred relating to the service provided under the terms of the Agreement and CUSTOMER agrees to pay the same. OLIVER may, at the renewal period, increase the annual service charge. Changes to the covered systems (i.e., if additional systems or equipment are added or deleted to the scope of this Agreement) may result in additional increases or decreases to the price OLIVER charges to the CUSTOMER to perform the SERVICES in this agreement. OLIVER will notify the CUSTOMER during the renewal period of any changes to the charges of the Agreement due to a change in the covered systems.
CUSTOMER may terminate this Agreement for cause after giving OLIVER thirty (30) days written notice. OLIVER may terminate this Agreement for cause (including, but not limited to, CUSTOMER’s failure to make payments as agree herein) after giving CUSTOMER thirty (30) days advance written notice.
CUSTOMER agrees to provide all access to all Equipment covered by this Agreement. OLIVER will be free to start and stop all primary equipment incidental to the operation of the system(s) as arranged with CUSTOMER’s representative. The Agreement assumes that the systems and/or Equipment included in the attached Equipment List are in maintainable condition. If repairs are necessary upon initial inspection, repair charges will be submitted for approval. CUSTOMER will promptly notify OLIVER of any malfunction in the system(s) or Equipment covered under this agreement that come to the CUSTOMER’s attention.
The results of the inspection and/or test shall be detailed on the COMPANY’s then current report form which shall be distributed to the CUSTOMER and any designee of CUSTOMER.
Prior to the COMPANY performing any tests, the CUSTOMER must notify any alarm monitoring COMPANY, the local fire department, and all occupants and tenants.
Emergency or additional inspections requested by the CUSTOMER will be furnished at an extra charge and be subject to all terms and conditions of this Agreement.
In the event additional equipment is installed or the systems are modified after the date of this contract, the annual inspection charge shall be increased in accordance with COMPANY’s prevailing rates as of the first inspection of the additional equipment/modification.
Testing and treatment of the water supply, and any costs associated therewith, are not covered by this Agreement and are the sole responsibility of the CUSTOMER. Equipment is available that is designed to monitor for conditions that can contribute to internal corrosion inside the water-based fire protection system installed in your facility. Such testing and treatment can be provided pursuant to a separate written agreement.
Scope of Inspection
The inspection and testing services provided by this Agreement are designed to determine the functionality of the inspected systems at the time of the inspection/test. The inspection and testing provided under this Agreement does not include: maintenance, repairs, alterations, or replacement of parts or any other field adjustments. COMPANY may choose to offer such services at an additional charge, but is not obligated under this Agreement to do so. The inspections and testing provided under this Agreement are NOT a system survey or engineering analysis of the system, its installation and/or its design. Inspection and testing services under this Agreement are not intended to reveal design or installation flaws or code compliance violations.
Any observations and suggested improvements itemized on any inspection and/or testing report do not constitute an engineering review of the fire protection/suppression system installed in your facility. To the extent such are itemized, they were noticed while conducting an inspection and test of your fire protection system in accordance with applicable NFPA Inspection and Testing Guidelines; however, such items are not part of the NFPA required inspection and test. COMPANY makes no guarantee or assurance that all defects or deficiencies in the systems have been itemized.
The scope of work under this Agreement is limited to the provision of inspection and testing services. COMPANY is not required to move personal property, equipment, walls, and ceilings or like materials which may impede access or limit visibility. Areas that are concealed are excluded from the inspection.
COMPANY does not warrant that the equipment or systems inspected/tested will meet or comply with the requirements of any fire or life safety code, or regulation of any state, municipality or other jurisdiction of CUSTOMER’s particular location.
Work of Others
COMPANY makes no warranty as to the quality of work performed by others or the functionality and design of the originally installed/modified fire sprinkler/suppression or alarm system(s). COMPANY makes no warranties, express or implied, regarding the adequacy, performance or condition of any fire protection/suppression or notification equipment. COMPANY cannot and does not guarantee that loss or damage will not occur.
Limitation of Liability – Liquidated Damages
The parties hereto agree that it is impractical and extremely difficult to fix the actual damages, if any, that may proximately result from failure on the part of COMPANY to perform any of its obligations hereunder. CUSTOMER does not desire that this contract provide for full liability of COMPANY and agrees that COMPANY shall be exempt from liability for loss or damage due directly or indirectly to occurrences, or consequences there from, which the inspection and/or testing is designed to detect or avert. If COMPANY shall be found liable for loss or damages due to a failure of inspection and/or testing in any respect, COMPANY’s liability shall be limited to the lesser of a sum equal to one-half (1/2) of the current annual inspection charge paid (or to be paid) by the CUSTOMER or $1,000.00 as liquidated damages and not as a penalty. The amounts payable to COMPANY hereunder are based upon the value of the services and the scope of liability as herein set forth and are unrelated to the value of the premises, CUSTOMER’s property or the property of others located in CUSTOMER’s premises. IN NO EVENT WILL CONTRACTOR BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND.
LIMITATION OF LIABILITY AND WARRANTY – NO EXPRESS OR IMPLIED WARRANTIES – THE CUSTOMER UNDERSTANDS AND AGREES THAT COMPANY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF ANY KIND OR TYPE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY AND ANY IMPLIED WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE. THE CUSTOMER FURTHER UNDERSTANDS AND AGREES THAT COMPANY MAKES NO EXPRESS WARRANTIES AS TO THE SERVICES RENDERED, AND THAT NO REPRESENTATIVE OF COMPANY HAS ANY AUTHORITY TO MAKE ANY WARRANTIES OR OTHERWISE VARY THE TERMS OF THIS AGREEMENT.
Waiver of Subrogation
COMPANY is not an insurer against loss or damage. Sufficient insurance shall be obtained by and is the sole responsibility of OWNER/CUSTOMER. CUSTOMER agrees to rely exclusively on CUSTOMER’s insurer to recover for injuries or damage in the event of any loss or injury to the premises or property therein. CUSTOMER does hereby, for itself and all others claiming by or through it under this Agreement, release and discharge COMPANY from and against all damages covered by CUSTOMER’s insurance, it being expressly agreed and understood that no insurance company, insurer or other entity/individual will have any right of subrogation against COMPANY.
Limitation On Lawsuits
It is agreed that no suit, cause of action or other proceeding shall be brought against COMPANY more than one (1) year after the accrual of the cause of action or one (1) year after the claim arises, whichever is shorter, whether known or unknown when the claim arises, or whether based on tort, contract, or any other legal theory. It is agreed that CUSTOMER shall forfeit any right of recourse against COMPANY, and COMPANY has no liability to CUSTOMER for any damage, injury, or loss, when a claim or lawsuit is not brought against COMPANY within the time period specified herein.
COMPANY will make every reasonable effort to prevent the discharge of water into or onto areas of landscaping, decorative pavement, etc. CUSTOMER must provide sufficient and readily accessible means to accept the full flow of water that may be required by tests as determined by the type of inspection and accepts all liability for water discharge. CUSTOMER is responsible for maintenance of any drains on or within their premises, including but not limited to floor drains and roof drains, and verifies they are unobstructed and capable of accepting the flow of water from testing of their fire sprinkler system(s).
If any provisions of this Agreement shall be invalid or unenforceable under the laws of the jurisdiction applicable to the Agreement, such invalid or unenforceable provision(s) shall be severed from the Agreement and the Agreement shall be construed as if not containing the particular invalid or unenforceable provision(s), and the rights and obligations of COMPANY and the CUSTOMER shall be construed and enforced accordingly.
Attics are excluded from this agreement unless after the COMPANY’s investigation and in its sole discretion the attic and its entry are deemed safe and accessible. Only those attics having a floor-level entry door with stairs, pull down stairs, and/or a permanently mounted access ladder will be considered for inclusion in the agreement. Further, only those attics having appropriate, permanently attached flooring and appropriate lighting will be considered for inclusion in the agreement. Assessment of the suitability of access, flooring and lighting is solely within the discretion of the COMPANY. Any attic deemed safe and accessible must be specifically listed on the front of the Agreement to qualify for inclusion in the Agreement. To the extent that any attic is included in the agreement, only such equipment as is safely visible and accessible from the floored area of the attic will be subject to the agreement.
Dry Pipe System
CUSTOMER is responsible for locating and/or identifying, in writing to COMPANY, all devices that are not marked, such as dry pipe system low point auxiliary drains and other devices. CUSTOMER is aware that dry pipe sprinkler systems must be drained after each operation of the dry valve to remove water from the system. CUSTOMER is also aware that other sources of water can exist in dry pipe systems in the absence of the operation of the dry valve, e.g. condensation from the air compressor maintaining air pressure in the dry system and temperature changes in the space(s) surrounding the piping. CUSTOMER is aware that residual water left in a dry pipe system may freeze, causing damage to the pipes or other components, and cause water damage to the premises and property therein. During inspection and testing of dry pipe systems, CUSTOMER must provide COMPANY full access to all low point auxiliary drains (drum drips) so that residual water from testing can be drained. CUSTOMER acknowledges their duty to perform regular, proper draining of low point auxiliary drains in accordance with the intervals described in NFPA 25 and otherwise required. If any dry pipe or pre-action systems are included in this Agreement, inspection or testing of proper pitch or slope of the pipe is excluded and outside the scope of this agreement.
CUSTOMER shall ensure that all areas of the building containing water-filled sprinkler pipe or components shall be maintained at a minimum temperature of 40°F. COMPANY is not responsible for assessing or maintaining building conditions including, but not limited to, the heating, cooling, insulation and conditioning of spaces in which water-filled piping is located. Conditions of temperature for water-filled piping are outside the scope of this inspection.
The person executing this Agreement on behalf of the CUSTOMER, expressly warrants and covenants that he/she is the authorized representative of the Owner of the premises and is authorized to enter into this Agreement for and on behalf of the Owner or Owner’s designee.
CUSTOMER has reviewed and is familiar with the National Fire Protection Association Standard 25 (NFPA 25) and understands the requirements and consequences of failure to comply with the requirements therein. CUSTOMER shall comply with the requirements of NFPA 25. CUSTOMER is responsible for maintaining all fire protection equipment in good, working order as outlined in the applicable NFPA Standards and any and all local rules, codes or standards applicable to the jurisdiction where the system(s) is/are located.
CUSTOMER agrees to indemnify, hold harmless and defend COMPANY, to the fullest extent permitted by law, against any and all losses, damages, costs, including expert fees and expenses including reasonable defense costs, brought by any party, including all third-party claims and losses, for personal injury, death, property damage or economic loss, which in any way relate to any of the services or goods contracted for and provided under this agreement. This indemnity covers claims against COMPANY, whether caused in whole or in part by the COMPANY and whether such claims are based upon contract, warranty, tort (including but not limited to active or passive negligence), strict liability or otherwise. COMPANY reserves the right to select counsel to represent it in any such action.
- “Equipment” means the equipment covered by the Services to be performed under this Agreement, and is identified in the respective work scope attachments under the “Equipment List”
- “Services” means those services and obligations to be undertaken by Oliver Fire Protection and Security in support of CUSTOMER to this Agreement, as more fully detailed in the attached work scope document(s), which are incorporated herein.
- “Renewal Period” means the one-year anniversary date of the initial service agreement.
This Agreement contains the entire understanding and final expression of Agreement and supersedes and replaces any previous Agreements between the parties. This Agreement may be amended only in a writing signed by both parties.
THIS AGREEMENT IS SUBJECT TO ALL TERMS AND CONDITIONS INCLUDED HEREIN.
GENERAL TERMS AND CONDITIONS OF SALE
- Terms of Sale of Services and Equipment
(a) In the event any proceeding is brought against the Customer, voluntarily or involuntarily under the bankruptcy or insolvency laws, or if the financial condition of the Customer at any times does not, in the judgment of Oliver Fire Protection & Security, justify continuance of Oliver Fire Protection & Security performance under this Agreement, then Oliver Fire Protection & Security may require full or additional partial payments of the total purchase price in advance or shall be entitled to cancel the order or any portion thereof then outstanding.
(b) Customer agrees to pay Oliver Fire Protection & Security an amount equal to 1% (1.5%?) per month on all amounts outstanding which are not paid when due, but in no event shall such amount exceed the maximum amount allowed by law. In any lawsuit arising out of the Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees to the extent permitted by law.
(c) Customer agrees to immediately purchase equipment upon shipment and that title of equipment passes to the customer upon said shipment. Installation of said equipment shall be billed in accordance with herein “TERMS OF PAYMENT”, and with acceptance by customer evidencing complete installation. In the event the Customer fails to pay Oliver Fire Protection & Security for the equipment as provided herein, Oliver Fire Protection & Security shall have the right to exercise any and all legal and equitable remedies arising from such non-payment.
(d) In addition to the purchase price, the Customer shall also pay and be liable for all duties, taxes (including without limitation, any additional sales or use taxes), tariffs or other governmental charges of any nature whatsoever with respect to the Equipment or this Agreement
(e) The price shown on this proposal is valid for thirty (30) days after the date on the proposal. Oliver Fire Protection & Security reserves the right to revise the price if the proposal is not accepted within thirty days of the date shown on the proposal.
The Equipment and installation services sold hereunder are subject to the following LIMITED WARRANTY:
Equipment installed by Oliver Fire Protection & Security is warranted to be free from defects in workmanship or materials for a period of one ( 1 ) year from the date of shipment to the original Customer. The foregoing warranty shall not apply to Equipment that shall have been altered or repaired after shipment by any person not authorized by Oliver Fire Protection & Security, and Oliver Fire Protection & Security shall in no event be liable for any alterations or repairs made without its written consent. Customer shall be solely responsible for determining suitability for use and Oliver Fire Protection & Security shall in no event be liable in this respect. Oliver Fire Protection & Security obligations and liabilities hereunder shall not be enforceable until the full purchase price has been paid. No Equipment may be returned without the express prior written approval of Oliver Fire Protection & Security after a determination by Oliver Fire Protection & Security that such Equipment is defective in workmanship or materials. Oliver Fire Protection & Security shall replace or repair, at its sole and exclusive option, such defective Equipment or parts thereof at its own expense. This warranty is void in the case of abuse, misuse, abnormal usage, or repair by unauthorized persons or if Oliver Fire Protection & Security determines that such Equipment is not operating properly as a result of causes other than defects in workmanship or materials.
- Maximum Liability
The maximum liability of Oliver Fire Protection & Security to the customer or any other person arising out of or in connection to any materials or services provided to the customer hereunder shall in no event exceed the original price paid for material and labor or the price of the restoration or repair of such equipment, whichever is the lesser.
- Installation Schedule
(a) If installation is provided hereunder, then Oliver Fire Protection & Security shall deliver and install the Equipment at the Site. A projected schedule may be included in Addendum A at the option of Oliver Fire Protection & Security. Oliver Fire Protection & Security shall not be liable, however, for any delays in delivery or installation of the Equipment for any cause whatsoever. The fulfillment of any obligations by Oliver Fire Protection & Security is subject to strikes, labor disputes, lockouts, accidents, fires, delays in manufacture or transportation or delivery of material, site conditions, floods, severe weather or other acts of God, embargoes, unknown Site conditions, governmental actions, or any other cause beyond the reasonable control of Oliver Fire Protection & Security, whether similar to, or different from, the causes listed above, and whether affecting Oliver Fire Protection & Security or Oliver Fire Protection & Security subcontractor, supplier. Any such causes shall absolve Oliver Fire Protection & Security from any liability to Customer and entitle Oliver Fire Protection & Security to an extension in schedule.
(b) The performance of the work associated with this Agreement shall be performed within the normal working hours of Oliver Fire Protection & Security unless specifically agreed to the contrary by means of a specific addendum attached hereto.
(c) The Customer shall provide easy and timely access to all areas of the Site, including locked or limited access areas, whether they are deemed private or public, throughout the performance period.
(d) In the event of any delay, acceleration or other change in schedule caused directly or indirectly by the Customer or its agents or representatives, then Oliver Fire Protection & Security shall be entitled to an extension of time and an equitable adjustment of the purchase price.
(e) All patching & painting of ceiling and walls and the replacement of ceiling tiles is excluded from Oliver Fire Protection & Security scope of work unless it is specifically included in the proposal or scope of work.
- Other Services/Changes
If Customer wants Oliver Fire Protection & Security to provide any additional materials or services, such as testing and maintenance of the Equipment, signal receiving and notification service or any other services offered by Oliver Fire Protection & Security, then such additional services shall only be furnished to Customer pursuant to agreements separately negotiated between the parties. If any additional equipment or services are required by for the installation of the project at the Site due to any instructions or requirements issued by the Customer, any government Authority Having Jurisdiction (“AHJ”), insurance company or any of their respective agents or representatives, then Oliver Fire Protection & Security shall be entitled to an equitable increase in the purchase price with materials charged at the manufacturer’s published price and services at Oliver Fire Protection & Security current rates.
- General Provisions
(a) No waiver of the forgoing terms and conditions shall be effective unless such waiver is in writing and signed by an authorized representative of Oliver Fire Protection & Security.
(b) If a Fire Watch is either recommended or deemed necessary by any person, including any government AHJ, then the procurement and all associated costs of the Fire Watch shall be the sole responsibility of the Customer and shall in no event be the responsibility of Oliver Fire Protection & Security
(c) If, at any time, during the performance of this Agreement, asbestos or any other toxic or hazardous substance is found to be present on the Site, then Oliver Fire Protection & Security will cease all activities until such time as the Customer’s legal representative completes proper abatement services for the asbestos, toxic and hazardous substances. In any event, the procurement of any abatement procedures / services, including the associated costs, shall be the sole responsibility of the Customer, and Oliver Fire Protection & Security will not be held responsible for any delay of completion.
(d) If the planned installation includes the reuse of any existing electrical wiring or devices, then that wiring must be found by Oliver Fire Protection & Security to be clean, properly installed, free of ground faults, and in total compliance with the current codes in effect at the time of the installation. If any electrical deficiency is found to be present, then Oliver Fire Protection & Security will cease its activities until the Customer corrects the faulty condition through either Oliver Fire Protection & Security or another supplier of the Customer’s choice. Oliver Fire Protection & Security will not be held responsible for any delay of completion. In no event shall Oliver Fire Protection & Security have any obligation to correct, abate, clean up, control or remove any defective premises electrical wiring or other equipment or any existing code or permit violations, any defect at the Site Equipment location, or any toxic or hazardous material at the Site unless agreed to in writing in an addendum to this Agreement. In no event shall Oliver Fire Protection & Security have any obligation to coordinate the provision of other services, install or service any sprinkler systems or controls, travel cable for elevators, elevator recall or any other equipment of any kind in elevators unless agreed to in writing in an addendum to this Agreement.
(e) This Agreement supersedes all prior oral or written agreements, if any, between the parties and constitutes the entire agreement with respect to the work and any material to be furnished. This Agreement contains all the agreements and conditions under which the work is to be performed, and no agreement or other understanding in any way modifying or waiving the terms and conditions hereof will be binding unless made in writing as modification or amendment to this Agreement and executed by an authorized officer of Oliver Fire Protection & Security. Customer agrees that any purchase order or other written authorization (“Order”) issued by Customer will only operate to accept this Agreement and to establish payment authority for Customer’s internal accounting purposes. Any such Order will not be considered a counteroffer, amendment, modification, or other revision to the terms of this Agreement. Any term or condition in such Order will have no effect on this Agreement.
(f) If any provision of this Agreement, including any limitation of liability, is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held to be invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
(g) The Agreement may not be assigned by Customer without the express written consent of Oliver Fire Protection & Security. When this Agreement is signed by Customer and approved and signed by an authorized representative of Oliver Fire Protection & Security, it shall constitute a binding agreement between Customer and Oliver Fire Protection & Security. If such approval of the authorized representative is not obtained, the only liability of Oliver Fire Protection & Security shall be to return to Customer the deposit amount, if any, paid to Oliver Fire Protection & Security upon signing of this Agreement by its sales representative. Customer warrants and represents that it is fully authorized to enter into this Agreement and to allow the installation of Equipment at the Site
(h) This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvania. Both parties also agree to submit to the exclusive venue and jurisdiction of the courts of the Commonwealth of Pennsylvania for any litigation pertaining to this Agreement.