TERMS AND CONDITIONS OF SERVICE
1. Applicability. These terms and conditions for services (these “Terms”) are the only terms that govern the provision of Services (as defined below) by InnoServ Solutions LLC, a Michigan limited liability company (“InnoServ”) to a customer, including but not limited to such customer’s own clients and customers (“Customer”). The Services will be provided as described in one or more orders, made on InnoServ’s approved order form and delivered by Customer to InnoServ (each an “Order”, and collectively, the “Orders”), subject to acceptance in writing by InnoServ. The Orders’ and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, oath written and oral. In the event of any conflict between these Terms and an Order, these Terms shall govern. These Terms prevail over any of Customer’s general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Fulfillment of an Order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
2. Services. InnoServ will provide the services to Customer as described in the Order (the “Services”) in accordance with these terms.
3. Prices. Prices quoted are in U.S. Dollars and based on the price at the time of quotation and are subject to change without notice. Clerical errors are subject to correction without liability. Prices do not include any sales, use, excise, privilege, or other taxes, duties, tariffs or assessments now or hereafter imposed or levied (“Taxes”) by or under the authority of any foreign, federal, state, provincial, or local law, rule, or regulation concerning the Services. If InnoServ pays any such Taxes, Customer shall, upon demand, immediately reimburse InnoServ for such amounts.
4. Payment Terms. Unless otherwise agreed to by InnoServ in writing, all payments are due within 30 days from date of invoice. All payments shall be made without abatement, deduction, discount or setoff. Late payments are subject to a service charge of the lesser of 1.5% per month or the highest rate permitted under applicable Law. Customer shall be liable for all costs and expenses related to collection of past due amounts, including, without limitation, attorneys’ fees and costs. If, in InnoServ’s judgment, the financial condition of Customer does not justify continuance on the terms of payment above, InnoServ may require full or partial payment in advance or otherwise adjust the terms including suspending performance of all Services.
5. Inspection; Acceptance. Customer shall inspect the Services upon performance, and Customer shall immediately notify InnoServ in writing of any claims that the Services are different than identified in Customer’s Order whereupon the Parties shall determine the correct remedy, and if they are unable to do so, shall submit to arbitration administered by the American Arbitration Association (“AAA”) and governed by the AAA Commercial Arbitration Rules then in effect. Failure to timely give such written notice upon receipt will constitute irrevocable acceptance by Customer of all Services.
6. Changes or Cancellation. Changes in specifications of any Services, changes in Orders, changes in delivery or performance schedules or reschedules or cancellations of Services are not permitted unless InnoServ has accepted the same in writing; determined the additional charge to be made, if any; and has received payment for the same from the Customer.
7. Service Terms.
(a) The Services will be provided at InnoServ’s then current service rates (which shall be referenced in each Order;
(b) If the Customer site is not prepared for the performance of the Services upon InnoServ’s arrival, InnoServ may charge a service fee and for any delay and/or travel time;
(c) Client shall provide Innoserv with advance notice of any rules, requirements and Laws in connection with providing the Services at the Service site;
(d) InnoServ may refuse, without any liability, to provide Services and to allow InnoServ service personnel to suspend the Services or vacate any site where, in InnoServ’s opinion, provision of the Services would pose a risk to the safety of any person, and in the instance of such event, Customer is responsible for payment of any delay and/or travel time at InnoServ’s regular service rates;
(e) Customer is solely liable for all claims, damages, or injuries caused or contributed to by Customer that may occur; and
(f) Customer must provide at least 72 hours’ notice of cancellation of any Order. If Customer cancels with less than 72 hours’ notice, Customer is responsible for any costs incurred by InnoServ caused by such cancellation.
(g) InnoServ will use reasonable efforts to meet any performance dates specified in an Order, and any such dates shall be estimates only.
(h) Customer acknowledges that all repairs for equipment under manufacturer warranty should be coordinated through the equipment manufacturer. Customer agrees and acknowledges that InnoServ is not liable for the voiding of any manufacturer warranty caused by InnoServ's performance of services on the equipment hereunder.
8. Customer’s Obligations. Customer will (a) cooperate with InnoServ in all matters relating to the Services and provide such access to Customer’s premises for the purposes of performing the Services, (b) respond promptly to any InnoServ request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for InnoServ to perform Services in accordance with the requirements of this Agreement, (c) coordinate for all necessary approvals needed for InnoServ to access equipment that is not on Customer’s premises and (d) provide such Customer materials or information as InnoServ may request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects.
9. Customer’s Acts or Omissions. If InnoServ’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
10. Insurance. The Parties shall, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability in a sum no less than $2 million per occurrence, $2 million products-completed operations aggregate, and $2 million general aggregate with insurance carriers having an AM Best rating of “A- VIII” or better. Upon request, each Party shall provide the other Party with a certificate of insurance from such Party’s insurer evidencing the insurance coverage specified in these Terms. Each Party shall provide the other Party with 30 days’ advance written notice in the event of a cancellation or material reduction of coverage in such Party’s insurance policy. Except where prohibited by law, each Party shall waive, and shall require its insurer to waive, all rights of subrogation against the other Party’s insurers and the other Party.
11. Limited Warranty. Unless otherwise provided by InnoServ in its written warranty provided in any Order accepted in writing InnoServ, InnoServ warrants that the Services will be performed in a professional and competent manner in accordance with generally recognized industry standards’ for similar services. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN THE IMMEDIATELY PRECEDING SENTENCE, INNOSERV MAKES NO WARRANTIES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. If during the applicable warranty period, Customer notifies InnoServ in writing that the Services are not in conformity with the warranty and InnoServ agrees, after InnoServ’s inspection (at its option), Customer’s sole remedy is for InnoServ, at its sole option, to re-perform the Services. THESE SHALL BE CUSTOMER’S EXCLUSIVE REMEDIES FOR INNOSERV’S LIABILITY. Any claims not made during the warranty period are deemed waived. InnoServ does not warrant components and other products manufactured by third parties which are utilized in connection with the Services, but to the extent that the applicable manufacturer provides an end-user warranty, InnoServ will use reasonable efforts to assist Customer in enforcing such warranties directly against such manufacturer, at Customer’s cost and expense. Any contract created between InnoServ and Customer is subject to the specific conditions that (a) InnoServ is not obligated to provide insurance or indemnify Customer, and (b) there are no flow-downs from any person or entity that become part of the contract.
12. Limitation of Liability. IN NO EVENT SHALL INNOSERV BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL INNOSERV’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE APPLICABLE ORDER.
13. Indemnification. Customer, shall defend, indemnify, and hold InnoServ, its affiliates and their respective officers, directors, members, managers, shareholders, employees, customers, successors and assigns, harmless against any and all claims, demands, damages, losses, liabilities, lawsuits, dispute resolution, judgments, fines, settlements, penalties, costs and expenses including without limitation all attorneys’ fees and litigation costs and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, whether direct, indirect, incidental, consequential, or otherwise (collectively, “Claims”) arising out of relating to (i) the Services (including death, injury and property damage); (ii) actual or alleged act, omission, negligence or failure to comply with any agreement between Customer and InnoServ; (iii) any recall; and (iv) loss or damage to Customer’s Property. InnoServ shall not enter into any settlement without Customer’s prior written consent.
13. Intellectual Property. All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights, trademarks, patents and applications therefor, and other information or intellectual property disclosed or otherwise provided to Customer by InnoServ and all rights therein (collectively, “IP”) are and will remain the property of InnoServ. Customer shall have no claim to, nor ownership interest in, any IP and such information, in whatever form and any copies thereof, shall be promptly returned to InnoServ upon written request from InnoServ. Customer acknowledges that no license or rights of any sort are granted to Customer hereunder in respect of any IP.
16. Confidentiality. All non-public or proprietary information of InnoServ, including all IP, quotations and pricing information, is confidential, solely for the use in performing hereunder and may not be disclosed, used or copied unless authorized by InnoServ in writing.
17. Force Majeure. InnoServ shall not be liable for any delay in or failure to perform due to any event or contingency beyond its reasonable control (an event of “Force Majeure”), including acts of God, epidemics, acts of war whether declared or undeclared, blockades, labor disputes (whether of InnoServ’s employees or the employees of others), raw material shortages and material increases in costs of raw materials, including those material increases in costs resulting from the imposition of tariffs. In the event of Force Majeure, the time for performance will extend for such time as reasonably necessary to enable InnoServ to perform. If InnoServ’s delay or failure remains uncured for a period of 30 days, either party may thereafter terminate any Order upon ten (10) days’ written notice. InnoServ may, during any period of shortage due to any of the above circumstances, allocate its available resources among itself and its purchasers in such manner as InnoServ, in its sole judgement, deems fair and equitable. The parties acknowledge that, as at the date hereof, the parties are aware of, and have knowledge of, the pandemic and global health crisis commonly known as COVID-19 (“COVID”). Notwithstanding any such awareness or knowledge, the parties agree COVID and its effects could constitute force majeure events under this section that could potentially excuse delay or non-performance under this Agreement. The parties also waive any argument that COVID and its effects cannot constitute force majeure events because of the parties’ awareness or knowledge of COVID and its effects or that COVID and its effects were allegedly foreseeable.
18. Termination. In addition to any remedies that may be provided under this Agreement, InnoServ may terminate this Agreement or any Order with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Customer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (c)becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
19. Notices. All notices to either Party are to be given in writing and will be effective upon personal delivery, on the third day after mailing if sent by certified mail, postage prepaid, return receipt requested, or two business days after deposit if sent by a nationally recognized courier service which maintains evidence of the time, place and receipt of delivery, and in each case if addressed as set forth in the most recent Order (or such other addresses a party may designate in writing from time to time).
20. Waiver. All waivers by either Party shall be in writing. Failure of either Party at any time to require the other Party’s performance of any obligation hereunder shall not affect such Party’s right to require performance of that obligation. No delay or omission in the exercise of any right, power, or remedy hereunder shall impair such right, power, or remedy or be considered to be a waiver of any default or acquiescence therein.
21. Governing Law; Venue. Any dispute arising out of or related to this Agreement will be governed by and construed in accordance with the laws of the State of Michigan without regard to any rules on conflicts of laws and exclusively litigated in either a state or federal court located in Kent County, Michigan. Both Parties shall comply with all applicable laws.
22. Severability. The unenforceability or invalidity of any clause in this Agreement shall not have an impact on the enforceability or validity any other clause in this Agreement. Any unenforceable or invalid clause shall be regarded as removed from this Agreement to the extent of its unenforceability and invalidity.
23. Invoices. The Parties agree that for any transactions, facsimile signatures shall be accepted as original signatures, orders may be transmitted electronically and any document created pursuant to any Order may be maintained in electronic format; a copy of which shall be deemed an original. Neither party shall raise any objection to the authenticity of any Order nor any other document created thereto, based on the use of a facsimile signature, electronic order or the use of an electronic copy.
24. Survival Upon Termination. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.
25. Relationship of Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
26. Assignment. Customer shall not assign any of ’its rights or delegate any of its obligations under this Agreement without the ’prior written consent of InnoServ. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
27. Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.