Michael Mas, S.P. (assumed name: Savoy Services Group) (“Service Provider”) agrees to sell the services covered herein (“Services”) to the issuer of the Purchase Order and any end-user it may represent (“Customer”) on the following terms and conditions of sale (“Terms and Conditions” or “Agreement”), which supersede any prior or contemporaneous terms of Customer, whether oral or written, unless otherwise agreed in a written and binding agreement signed by a Managing Member of the Service Provider. This Agreement constitutes the entire agreement between the parties with respect to the Services, and this Agreement may not be modified, amended or waived in any way except in writing signed by a Managing Member of the Service Provider. Accordingly, any purchase order or other written documentation of Customer (collectively, “PO”) issued before or after delivery of these Terms and Conditions to Customer, including without limitation, any expanded warranty or indemnity obligation imposed upon Service Provider, will in no way be binding upon Service Provider. In the event of a conflict between these Terms and Conditions and any PO, these Terms and Conditions will control unless the PO contains an express and specific statement that a particular term is to control, this section is referenced, and the statement is executed by a Managing Member of the Service Provider. Service Provider’s acceptance of any PO, whether oral or written, is based on the express condition that Customer agrees to all of these Terms and Conditions.
Service Provider’s quotation for Services is not an offer to sell, but a communication of pricing. Service Provider’s quotations must be in writing and are only valid for 30 days from the date of the quotation. All quotations and pricing are subject to change or withdrawal without prior notice to Customer. Service Provider may refuse any PO and has no obligation to furnish Services, even if a quote has been submitted to the Customer.
Credit and Payment Terms
Prior to performing Services and at any time thereafter, upon Service Provider’s request, Customer will promptly provide Service Provider, and hereby authorizes Service Provider to obtain from Customer or any third party, such credit information and documentation as Service Provider may reasonably require to determine Customer’s creditworthiness. If at any time, in the sole opinion of Service Provider, the financial responsibility of Customer is impaired or unsatisfactory, or Customer fails to provide such credit information, Service Provider may suspend the Services or place Customer on a cash-in-advance status until arrangements are made for security satisfactory to Service Provider until all indebtedness is paid. Terms to Customer whose credit has been approved by Service Provider are net thirty (30) days from date of invoice and payable in U.S. currency at Service Provider’s Dallas, TX office, or at any other location designated by Service Provider. If Customer fails to make payment for the Services when due, Customer’s account shall be deemed delinquent and Customer shall be liable to Seller for a service charge of eighteen percent (18%) per annum or the maximum rate allowed by law on any unpaid amount. Customer shall be liable to Seller for all costs and expenses of collection, including court costs and reasonable attorney’s fees.
Service Provider reserves the right to conduct an on-site survey at the Customer’s facility before the Services are performed. The Customer is solely responsible for the state of its facility and the area where the Services are to be performed (including electrical, gas and plumbing lines). During the on-site survey, Service Provider is under no obligation to excavate, move equipment, or otherwise disassemble or remove covers, fascia, sconces, or the like. Should problems or defects be identified during the on-site survey, Customer shall remedy such problems at its own cost before Service Provider is required to perform or complete the Services.
Service Provider is in the business of performing commercial kitchen equipment installations. The scope of Services that Service Provider will perform are exclusive to the Customer PO and will only be valid upon written acceptance by Service Provider. Service Provider reserves the right to upcharge and/or back charge the Customer (i) if the Customer site where Services are to be performed is further than 60 miles from the closest Service Provider office, (ii) if, at the Customer’s request, Services and travel time are performed outside of Business Hours (defined below), (iii) for any taxes, tolls, and business licenses and permits applicable to Service Provider performing Services for the Customer, and (iv) for any other Services not included in the PO which Service Provider performs for the Customer. For Services that require: (a) use of specialized equipment; or (b) forms of transportation other than by conventional motor vehicle, Customer shall reimburse Service Provider for all rental, transportation, food, and lodging expenses incurred. Permits required for performance of the Services are the responsibility of the Customer or applicable third-party contractor, including all associated permitting costs.
Service Provider may subcontract the Services (in whole or in part) in its discretion. By appropriate written agreement, Service Provider shall require each subcontractor, to the extent of the Services to be performed by the subcontractor, to be bound to Service Provider by terms of this Agreement, and to assume all the obligations and responsibilities that the Service Provider, by this Agreement, assumes in favor of the Customer. Each subcontract agreement shall preserve and protect the rights of the Customer under this Agreement with respect to the Services to be performed by the subcontractor. Service Provider shall make available to each proposed subcontractor, prior to the execution of the subcontract agreement, copies of this Agreement to which the subcontractor will be bound.
Service Provider’s standard Business Hours are Monday – Friday (excluding Federally recognized holidays), from 8am to 5pm.
Any Services performed outside of Business Hours, at the Customer’s request, will be subject to an upcharge by Service Provider.
Customer will indemnify, defend and hold harmless Service Provider, its parents, affiliates and subsidiaries and their respective shareholders, officers, directors, employees and agents (“Service Provider Indemnitees”) from and against any and all claims, liability or expense, including, without limitation, all court costs and attorneys’ fees incident thereto (collectively, “Losses”), for (i) personal injury or death of any person (including, without limitation, Customer’s employees); or (ii) damage to real or personal property that arises out of, are connected with, or relate in any way to Services (including, without limitation, receipt, possession, use, handling, transfer, storage, disposal, resale and/or retransfer of equipment). Such indemnification and obligation to defend shall apply without regard to the cause or causes thereof, including, without limitation, strict liability; provided, however, that Customer will not be obligated to indemnify the Service Provider Indemnitees to the extent the Losses are directly caused by Service Provider’s gross negligence or willful misconduct.
Service Provider carries the following insurance: i) commercial general liability including products and completed operations of $1,000,000 per occurrence, $3,000,000 general aggregate, and $3,000,000 products and completed operations aggregate; and ii) umbrella liability insurance of $1,000,000 per occurrence and $1,000,000 aggregate.
Limited Warranty & Limitation of Liabilities
Service Provider warrants to Customer that (i) it will perform the Services in a timely, competent and professional manner and (ii) the Services shall conform to the PO, as accepted by Service Provider.
The above warranties (the “Warranty”) apply directly to Customer and may not be assigned. The Warranty does not apply to defects caused by accident, misuse, neglect, unauthorized alteration or repair or improper testing by Customer or a third party. Customer’s sole remedy, and Service Provider’s sole liability, for a breach of the Warranty regarding Services is for Savoy, at its option, to re-perform the Services, repair, or credit Customer’s account for such defective Services. In no event shall Service Provider’s obligation to pay or refund the Customer exceed the purchase price actually paid for the portion of the nonconforming Services. Service Provider’s obligations herein are contingent upon (i) Customer making any claim under this warranty upon the earlier of 10 business days from the Service Provider’s performance of the Services, or 5 business days after the manufacturer’s authorized representative has performed training and start up on said equipment with the Customer (ii) such claim includes detailed explanation of any alleged deficiencies, (iii) Service Provider is given a reasonable opportunity to investigate all claims; and (iv) Service Provider’s examination of such Services confirms the alleged deficiencies and that the deficiencies were not caused by accident, misuse, neglect, unauthorized alteration or repair or improper testing by Customer or a third party.
THE EXCLUSIVE REMEDY OF CUSTOMER AND THE SOLE LIABILITY OF SERVICE PROVIDER, FOR ANY LOSS, DAMAGE, INJURY OR EXPENSE OF ANY KIND ARISING FROM THE SERVICES AND WHETHER BASED ON CONTRACT, WARRANTY, TORT OR ANY OTHER BASIS OF RECOVERY WHATSOEVER, SHALL BE, AT THE ELECTION OF SERVICE PROVIDER, THE REMEDIES DESCRIBED ABOVE.
IN NO EVENT WILL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE PURCHASE PRICE OF THE PORTION OF SERVICE RELATED TO SUCH CLAIM. THE FOREGOING IS INTENDED AS A COMPLETE ALLOCATION OF THE RISKS BETWEEN THE PARTIES AND CUSTOMER UNDERSTANDS THAT IT WILL NOT BE ABLE TO RECOVER CONSEQUENTIAL DAMAGES, WHICH ARE WAIVED BY CUSTOMER, EVEN THOUGH IT MAY SUFFER SUCH DAMAGES IN SUBSTANTIAL AMOUNTS. BECAUSE THIS AGREEMENT AND THE PRICE PAID REFLECT SUCH ALLOCATION, THIS LIMITATION WILL NOT HAVE FAILED OF ITS ESSENTIAL PURPOSE EVEN IF IT OPERATES TO BAR RECOVERY FOR SUCH CONSEQUENTIAL DAMAGES.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING, TRADE PRACTICE, OR OTHERWISE UNDER THE UNIFORM COMMERCIAL CODE. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY, SHALL SERVICE PROVIDER BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT, LOSS OF USE OF EQUIPMENT, EQUIPMENT, DAMAGE TO OTHER PROPERTY, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, DOWNTIME, OR THE CLAIMS OF CUSTOMER FOR ANY OF THE AFORESAID DAMAGES.
Unless otherwise specified in a PO, the following is not included in the scope of Services and will be subject to additional charges: any repair costs, including labor, parts and travel expense required due to damage by fire, water, burglary, accident, abuse, acts of God, acts of terrorism, failure of Customer to operate or maintain equipment in conformity with Service Provider’s or other manufacturer’s recommended operating and maintenance instructions, inappropriate or improper use, improper water conditions, failure due to improper cleaning, failure to maintain water treatment equipment, relocation, adjustment or repair of equipment by any Customer or any third party without Service Provider’s supervision or consent.
In addition, the following are not included and will be subject to additional charges: (i) Customer requested calibrations and/or adjustments to alter temperature or product appearance; (ii) attachments; (iii) accessories such as bowls, adapters, bowl trucks, attachment shelves, agitators (beaters, whips, dough hooks, etc.), splash covers and extension rings; (iv) expendable items such as plastic flight links, curtains, blades, slicer knives, sharpening devices, pulley wipes, shredder plates, fryer baskets, customer removable seals, door gaskets; (v) consumable components or ordinary wear items including but not limited to rinse arm strainers, final rinse nozzles, filters (including water filters), wash arm end caps, lower arm bushing, rollers, retaining rings, wash arm plugs, dish-limit rubber bumper, lamps, dish racks; (vi) consumable items, such as paper supplies, filters, printing materials, and dishwashing and sanitizing compounds; (vii) certain refrigeration parts, such as condenser and evaporator coils, ice machine plates, refrigeration or HVAC motors and compressors, Flight Type dish machine conveyer assembly, refrigeration gasses (viii) water related issues; (ix) feature upgrades, including firmware, software, label format, or graphics; (x) welding services; (xi) wireless DPAC network assembly; and (xii) Customer network related issues for Service Provider connected devices. Loaner equipment is not included but may be provided by Service Provider at additional cost based on availability.
For any on-site Service, Customer shall:
- prepare the site for the Services. If the site is not prepared for the Services upon Service Provider personnel’s arrival at the agreed upon time and date, Service Provider may invoice Customer for the full PO amount, even if Services were not rendered. If, in Service Provider’s opinion, performance of Services would pose a risk to the safety of any person, Service Provider may refuse, without any liability, to provide Services and to allow Service Provider’s personnel to suspend Services or vacate any Customer site. In such event, Service Provider may invoice Customer for the full PO amount, even if Services were not rendered.
- provide Service Provider with at least 30 days’ written notice of any rules, regulations, statutes and requirements applicable to the Services, including any required permits and licenses, that are applicable to Customer’s local jurisdiction;
- provide at least a five (5) business day notice of cancellation of any PO. Upon cancellation, Customer will be responsible for any costs incurred by Service Provider caused by such cancellation. If cancellation occurs within five (5) days of scheduled Services, then Service Provider may invoice Customer for the full PO amount, even if Services were not rendered.
Customer will not solicit, offer work to, employ, or contract with, directly or indirectly, any of Service Provider’s employees while Service Provider provides Services hereunder and for a period of twelve (12) months after the conclusion of such Services, without obtaining the prior written consent of the Service Provider.
Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 180 days, Customer shall be entitled to give notice in writing to Service Provider to terminate this Agreement.
No waiver by either party of any obligation, performance, breach or default hereunder or of its failure to enforce any of the provisions of this Agreement shall limit or waive the right of such party to enforce this Agreement and compel strict compliance with each and every provision.
Any action against Service Provider under this Agreement or related to its subject matter must be brought within three (3) months after the cause of action occurs.
This Agreement shall be governed and construed in accordance with the laws of the State of Texas. In the event of any dispute between Service Provider and Customer relating to this Agreement, such dispute shall be resolved by arbitration in accordance with the Construction Arbitration Rules of the American Arbitration Association, unless the parties mutually agree otherwise. Unless otherwise provided by law, such arbitration shall be conducted in Dallas County, Texas, and Customer expressly consents to jurisdiction in such venue and, in which case, the parties also expressly waive trial by jury.
Customer will cause subsequent Customers to abide by the terms in this Agreement.
The obligations hereunder survive the termination of this Agreement.
If any provision of this Agreement shall, to any extent, be held to be invalid or unenforceable, it shall be deemed to be separate and severable from the remaining provisions of this Agreement, which shall remain in full force and effect and be binding as though the invalid or unenforceable provision had not been included.
The relationship of the parties is that of independent contractors. Nothing in the Agreement or the course of dealing of the parties may be construed to create a partnership, joint venture, or agency or as authorizing either party to obligate the other in any manner.
The Agreement may not be assigned or transferred by Customer without Service Provider’s prior written consent.