The terms and conditions of sale and service contained herein apply to all quotations, purchase orders, confirmation of purchase orders, invoices and service contracts by and for Traffic and Parking Control Co., Inc. (“Company”). Some of the terms set forth herein may differ from those in Customer’s purchase order, and some may be new. The Company’s failure to object to provisions contained in any communication from Customer shall not be deemed a waiver of the provisions of this acceptance. Any changes in the terms contained herein must specifically be agreed to in writing by an officer of the Company before becoming binding for either the Company or the Customer. All orders and contracts must be approved and accepted by the Company. These Terms and Conditions of Sale and Service shall be applicable whether or not they are attached to or enclosed with the equipment or services to be sold or sold hereunder.
“Portal-to-Portal” travel time and mileage charges will be calculated from the time and location service personnel leave their original departure point to travel to the job site until the job is finished and from the time and location of the finished job to the original departure point, or the next jobsite, whichever distance is shorter. If travel time and mileage between job sites is greater than travel time and mileage to return to the original departure point, the subsequent job will be charged for travel exceeding the maximum charged to the prior job site for travel after a job is completed per the above rule. If service personnel travel to more than one job site in one day or over multiple days without returning to the original departure location between jobs, the last job site will be charged the travel time and mileage to return to the original departure point.
ON-SITE SERVICE is calculated in 15-minute increments. Minimum charge of one (1) hour.
PHONE ASSISTANCE is calculated in 15-minute increments. Minimum charge of fifteen (15) minutes.
All invoices are due and payable thirty (30) days from date of invoice. The Company may from time to time demand different terms of payment from those specified herein whenever it reasonably appears Customer’s financial condition requires such changes and may demand assurance of Customer’s ability to pay whenever it reasonably appears such ability is in doubt. Each shipment shall be considered a separate and independent transaction, and payment shall be made accordingly. Interest accrues on overdue invoices at the rate of 1.5% per month, but no more than the amount allowed by law, on the unpaid balance from the original due date of the invoice.
All sales are made F.O.B. point of shipment. Method and route of shipment are at the Company’s discretion, unless Customer supplies explicit instructions. Risk of loss will pass to Customer upon delivery to the F.O.B. point. The Company will not insure shipment. Shipments will normally be made by Parcel Post, United Parcel Service (UPS), Air Express or Air Freight.
Unless otherwise provided herein, prices on the equipment or services covered by this order, or the manufacture or sale thereof, are exclusive of any present or future sales, revenue, excise or other taxes and fees or other charges of any nature, imposed by any public authority (national, state, local or other). Wherever applicable, such taxes, fees and other charges shall be added to the purchase price and shall be paid by the Customer, or in lieu thereof, the Customer shall provide the Company with a tax exemption certificate acceptable to the taxing authority or pay any taxes directly.
Delays; Interruption of Delivery or Service
Shipping and service dates are approximate and estimated. They are based upon prompt receipt from Customer of all necessary information. The Company shall not be liable for any loss, damage, detention or delay resulting from causes beyond its reasonable control, including, without limitation: acts of God, loss of communications, acts of civil or military authority, priorities, fires, strikes, lockouts, slow-downs, shortages, factory or labor conditions, yield problems, and inability due to causes beyond the Company’s reasonable control to obtain necessary labor, materials or manufacturing facilities. The Company shall not be required to furnish services or deliver equipment while and such interruption shall continue and shall have the right to apportion its services and production among its Customers in such a manner as it may consider to be equitable.
Unless otherwise specified, all equipment covered by this order shall be inspected before shipment. If, upon receipt of any such equipment by Customer, the same shall appear not to conform to the contract, the Customer shall immediately (but in no event more than thirty (30) days after receipt of same) notify the Company, stating full particulars in support of its claim and afford the Company a reasonable opportunity to inspect the equipment. No equipment shall be returned without the Company’s consent. Any returns accepted by the Company shall be subject to a reasonable restocking charge and manufacturer’s authorization and terms.
All equipment supplied to the Customer is warranted by the manufacturer’s written warranty only. The Company does not make any independent or supplemental warranty with respect to any equipment supplied to the Customer and shall not be responsible for repair, labor, shipping and/or handling costs associated with any manufacturer’s warranty covering equipment supplied by it. THE COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (INCLUDING, IF APPLICABLE, FITNESS OR COMPLIANCE WITH THE PAYMENT CARD INDUSTRY DATA SECURITY STANDARD (PCI DSS) PROMULGATED BY THE PCI SECURITY STANDARDS COUNCIL), AND ITS AGENTS OR TECHNICIANS ARE NOT AUTHORIZED TO MAKE ANY SUCH WARRANTIES ON BEHALF OF THE COMPANY.
Customer holds the Company harmless from, and releases and agrees not to make claim or suit against the Company because of, any suits, claims, losses or other liability made against or suffered by Customer arising from any claim of, or infringement of, patent, copyright, trademark or other proprietary right, at common law, or claim of unfair trade or of unfair competition, resulting from, or occasioned by, Customer’s use, possession, sale or delivery of the equipment or services covered by this order.
Maintenance contracts shall be for the term set forth on the maintenance contract and shall renew automatically for the same term unless terminated by either the Company or the Customer within sixty (60) days prior to the expiration of the current term, with any changes to price and other terms as stated in writing by the Company.
Maintenance of Equipment by Customer; Release
The Customer acknowledges the Company is not in the position to maintain the general safety of the equipment on a daily basis and that the Customer shall be responsible for daily maintenance and upkeep (routine or otherwise) and shall follow all safety precautions for the safe operation and use of the equipment. The Customer shall notify the Company promptly of any problems with the scheduled and/or “per call” basis as set forth in its Maintenance Contract with the Customer. Customer agrees to indemnify, defend and hold the Company harmless from, and releases and agrees not to make claim or suit against the Company because of, any suits, claims, losses or other liability made against, or suffered by, Customer arising from any injury to persons or property resulting from, or occasioned by, Customer’s use, possession, sale, delivery, operation of the equipment or services covered by this order or any Maintenance Contract between the Company and the Customer, for any reason, including, without limitation, the malfunctioning or non-functioning of any such equipment, non-performance or negligent performance or otherwise by the Company, or its noncompliance with the PCI DSS.
Items Not Covered
Unless otherwise specified in its Maintenance Contract with the Customer, services to be provided by the Company shall not include repair of damage or increase in service time caused by any of the following: (a) failure to continually provide a suitable operating environment in all facilities as prescribed by the Company 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; (b) use of the equipment for other than the ordinary use for which the equipment was designed or purpose for which it was intended; (c) use of unauthorized supplies or equipment; (d) accident or disaster, which shall include, without limitation, fire, flood, water, wind, lightning, power problems and Acts of God; (e) transportation, neglect or misuse, and alterations, including, without limitation, any deviation from the Company’s physical, mechanical or electrical design or attachment of equipment or devices not supplied by the Company. Unless otherwise specified in its Maintenance Contract with the Customer, the Company shall not be obligated to maintain, repair, service, replace, operate or assure the operation of any device, system or property belonging to the Customer or to any third party to which the systems or equipment installed or maintained by the Company are attached.
The Customer shall provide the Company’s technicians with full and free access to any equipment covered under any Maintenance Agreement between the Company and the Customer.
Limitation of Liability
The Customer acknowledges that, in order for the Company to perform certain services for the Customer, the Company requires access to the Customer’s computers, databases and other equipment and machinery. The Customer shall be responsible for backing up any data or other systems which the Company may access. THE COMPANY SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY DAMAGES RESULTING FROM OR RELATED TO THE SERVICES PERFORMED BY THE COMPANY HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA OR SOFTWARE OR INABILITY OR DELAY OF THE COMPANY IN PERFORMING ANY SERVICES HEREUNDER. IN NO EVENT SHALL THE COMPANY BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THE EQUIPMENT OR SERVICES PROVIDED HEREUNDER, EVEN IF THE COMPANY WAS ADVISED OF THE POSSIBILITY THEREOF OR KNEW OR SHOULD HAVE KNOWN THEREOF. THE COMPANY’S LIABILITY HEREUNDER TO THE CUSTOMER, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL FEES PAID TO THE COMPANY BY THE CUSTOMER.
Unless otherwise agreed to by the Company in writing, the Customer shall not hire, or solicit the employment of, any of the Company’s employees, contractors or consultants directly or indirectly associated with the performance of any Maintenance Contract or other services to be performed under this order during the period of the performance of any Maintenance Contract or other services to be performed under this order and for one year thereafter. In the event the Customer breaches the foregoing restriction, the Customer will pay, as liquidated damages and not a penalty, within thirty (30) days of receipt of a notice of breach, a sum equal to two (2) years of salary or fees the Company would have paid to its employee, contractor or consultant.
1. The validity, performance and construction of these terms and all sales hereunder shall be governed by the laws of the state of Wisconsin.
2. Controversies arising herein or relating to alleged breach thereof shall be determined by arbitration in accordance with the rules of the American Arbitration Association in Milwaukee, Wisconsin or at a location mutually agreed upon by the parties. It is understood that such arbitration is final and binding upon the parties waiving their rights to seek damages in court, including the right to a jury trial.
3. In the event that any provision of this contract is prohibited by any law governing its construction, performance or enforcement, such provision shall be ineffective to the extent of such prohibition without invalidating thereby any of the remaining provisions of these Terms and Conditions. The captions of sections herein are intended for convenience only and shall not be interpretative of the content of such section.
4. If Customer is in breach of its obligations herein, Customer shall remain liable for all unpaid charges and sums due to the Company and will reimburse the Company for all damages suffered or incurred by the Company as a result of Customer’s breach. The Company shall be entitled to a mechanic's lien for all such unpaid charges and sums. The remedies provided herein shall be in addition to all other legal means and remedies available to the Company. Waiver by the Company of any breach by Customer shall not be construed as a waiver of any other breach.