General Terms and Conditions
This document, together with the Sentry Equipment Corp. confirmation of sale which references this document (the "Confirmation of Sale") constitutes an offer by Sentry Equipment Corp. ("SENTRY") to provide the services and/or goods described in the Confirmation of Sale (collectively, the "Products") to the party to whom the Confirmation of Sale is addressed ("Customer"). The Confirmation of Sale and these General Terms and Conditions are collectively referred to herein as this "Agreement." If this Agreement is deemed an acceptance of a prior offer made by Customer, such acceptance is limited to the express terms contained herein. Customer's acceptance of this Agreement is limited to the terms, covenants and conditions contained in this Agreement, and SENTRY hereby objects to and rejects any additional, different or varying terms proposed by Customer, unless SENTRY expressly agrees to such terms in writing. Such proposal of additional, different or varying terms by Customer shall not operate as a rejection of SENTRY's offer, and SENTRY's offer shall be deemed accepted without such additional, different or varying terms. This Agreement constitutes the final expression of the terms between SENTRY and Customer regarding the Services and is the complete statement of those terms. Any terms, conditions, negotiations or understandings not contained in this Agreement shall have no force or effect unless made in writing and signed by SENTRY and Customer.
B. Out of Scope Services
If, during any Service Visit, SENTRY detects a defect (an “Out of Scope Defect”)in any of Customer’s equipment that is not an item of equipment subject to the performance of Services under this Agreement ("Covered Equipment"), SENTRY may (but shall have no obligation to) notify Customer of such Out of Scope Defect. If Customer elects for SENTRY to repair such Out of Scope Defect, or if SENTRY otherwise performs any Services or provides any materials, parts, or equipment outside the scope of the Services (collectively, “Out of Scope Services”), Customer shall direct SENTRY to perform such Out of Scope Services in writing, and Customer shall pay for such Out of Scope Services at SENTRY’s standard fees or hourly rates. If, after receiving notice of an Out of Scope Defect, Customer elects not to engage SENTRY to repair such Out of Scope Defect, Customer shall defend and indemnify SENTRY from and against any and all losses, damages, claims, costs and expenses arising directly or indirectly out of such Out of Scope Defect. Any Out of Scope Services performed by SENTRY at the direction of Customer pursuant to this Section shall be subject to the terms of this Agreement.
1. SENTRY’s Products and warranty obligations expressly exclude:
(a) disposal of hazardous wastes (except as otherwise expressly provided herein);
(b) supplies, accessories, or any items normally consumed during the use of Covered Equipment;
(c) the furnishing of materials and supplies for painting or refinishing equipment;
(d) replacement of obsolete parts.
2. SENTRY’s Products and warranty obligations do not include repairs or service required as the result of:
(a) abuse, misuse, alterations, adjustments, attachments, combinations, modifications, or repairs to Covered Equipment not performed, provided, or approved in writing by SENTRY;
(b) issues caused by or related to equipment not covered by this Agreement or attachments made to Covered Equipment;
(c) acts or omissions of the Customer, including but not limited to operator error, Customer’s failure to conduct preventive maintenance, issues resulting from Customer’s previous denial of SENTRY access to the Covered Equipment, and Customer’s failure to keep the site clean and free of dust, sand, or other particles or debris, unless such conditions are previously expressly acknowledged by SENTRY in writing;
(d) use of the Covered Equipment in a manner or environment, or for any purpose, for which it was not designed by the manufacturer;
(e) issues resulting from site-related and environmental conditions, including but not limited to power failures and fluctuations in electrical current (or “power surges”);
(f) the effects of erosion, corrosion, acid cleaning, or damage from unexpected or especially severe freezing weather;
(g) any other issues or failures not specifically covered by this Agreement; or
(h) any other issues caused by occurrences beyond SENTRY’s reasonable control and without SENTRY’s fault or negligence.
D. Payment Obligations
Customer shall pay all invoices when due in accordance with the payment terms provided for in the Agreement, and such payment is a condition precedent to SENTRY’s obligation to provide Products under the Agreement. In issuing any purchase order related to this Agreement, and notwithstanding any language to the contrary therein, Customer acknowledges and agrees that any and all SENTRY invoices for an amount greater than $25,000 shall be paid only via wire transfer, check, or money order. If this Agreement is renewed, SENTRY will provide Customer with notice of any adjustments in the Contract Price applicable to any renewal period no later than forty-five (45) days prior to the commencement of that renewal period. Unless Customer terminates the Agreement at least forty-five (45) days prior to the start of such renewal period, the adjusted price shall be the price for the renewal period.
E. Standard of Care and Warranties
(a) SENTRY warrants services included within Products ("Services") will be provided by qualified personnel in a manner consistent with industry standards. SENTRY will promptly re-perform any non-conforming Services for no charge, as long as Customer provides written notice to SENTRY within thirty (30) calendar days from the date the Services were performed. If SENTRY installs or furnishes goods or equipment under this Agreement, and such goods or equipment are covered by an end-user warranty from their manufacturer, SENTRY will transfer the benefits of such warranty to Customer.
(b) SENTRY warrants that all goods manufactured by SENTRY and included within Products ("Goods") will conform to the warranty attached hereto as Exhibit A.
(c) Customer must notify SENTRY in writing within thirty (30) days of any defect or non-conformance of the Services or Goods. Upon receipt of such written notice from Customer, SENTRY will, at its option (i) repair or replace (at SENTRY’s option) the non-conforming Goods or re-perform the non-conforming Services, or (ii) refund the purchase price paid for such non-conforming Goods or Services.
(d) The foregoing warranties do not extend to any Services or Goods that have been misused, altered, or repaired by Customer or third parties without the supervision of and prior written approval of SENTRY, or if SENTRY serial numbers or warranty decals have been removed or altered. All replaced parts or equipment shall become SENTRY’s property. This warranty is not assignable. Warranty service will be provided during normal business hours, excluding holidays. The remedies set forth herein shall be Customer’s sole and exclusive remedy with regards to any warranty claim under this Agreement. Any lawsuit based upon the warranty must be brought no later than one (1) year after the expiration of the applicable warranty period. This limitation is in lieu of any other applicable statute of limitations. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT THESE WARRANTIES ARE SENTRY’S SOLE WARRANTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER'S USE OF A LIVE CHAT FEATURE OF SENTRY'S WEBSITE DOES NOT CREATE OR EXPAND ANY OF THE FOREGOING WARRANTIES. Except with respect to Goods manufactured by SENTRY and furnished to Customer hereunder, SENTRY shall not be considered a merchant or vendor of goods or equipment. If the start date of this Agreement is on or before startup and/or commissioning of new equipment and SENTRY service personnel perform said startup and/or commissioning, any components manufactured by SENTRY shall be considered “in warranty” for as long as this agreement remains in continuous effect. Any break in this Agreement will terminate said coverage. Additional labor may be charged to repair or replace covered equipment should that service fall outside the normal scope of this agreement.
F. Customer Obligations and Commitments to Sentry
Customer warrants it has given SENTRY all information concerning the condition of the Covered Equipment. The Customer agrees and warrants that, during the Term of this Agreement, Customer will:
(1) operate the Covered Equipment according to the manufacturer’s and/or SENTRY’s recommendations;
(2) keep accurate and current work logs and information about the Covered Equipment as recommended by the manufacturer and/or SENTRY;
(3) provide an adequate environment for Covered Equipment as recommended by the manufacturer and/or SENTRY, including, but not limited to adequate space, electrical power, water supply, air conditioning, and humidity control;
(4) notify SENTRY immediately of any Covered Equipment malfunction, breakdown, or other condition affecting the operation of the Covered Equipment;
(5) provide SENTRY with safe access to its Premises and Covered Equipment at all reasonable and necessary times for the performance of the Services;
(6) allow SENTRY to start and stop, periodically turn off, or otherwise change or temporarily suspend equipment operations so that SENTRY can perform the Services required under this Agreement;
(7) obtain all necessary licenses and permits required for and pay all taxes associated with the Services;
(8) notify SENTRY immediately of any claimed inadequacy in, or failure of, the Covered Equipment or other condition affecting the operation of the Covered Equipment;
(9) furnish any necessary 110 volt A/C power and electrical outlets at its expense;
(10) properly maintain, repair, service, and assure the proper operation of any other property, system, equipment, or device of Customer or others to which the Covered Equipment may be attached or connected, in accordance with manufacturer recommendations, insurance carrier requirements, or the requirements of any fire rating bureau, agency, or other authorities having jurisdiction thereof;
(11) not tamper with, alter, adjust, disturb, injure, remove, or otherwise interfere with any Covered Equipment (including any related software) and not permit the same to be done; and
(12) refrain from causing false alarms, and reimburse SENTRY for any fine, penalty, or fee paid by or assessed against SENTRY by any governmental or municipal agency as a result thereof.
Customer acknowledges that its failure to meet these obligations will relieve SENTRY of any responsibility for any Covered Equipment breakdown, or any necessary repair or replacement of any Covered Equipment. If Customer breaches any of these obligations, SENTRY shall have the right, upon written notice to Customer, to suspend its Services until Customer cures such breach. In addition, Customer shall be responsible for paying or reimbursing SENTRY for any costs associated with corrective work required as a result of Customer’s breach of these obligations.
SENTRY and Customer shall each indemnify the other party and its officers, agents, directors, and employees, from any and all damages, losses, costs and expenses (including reasonable attorneys’ fees) arising out of third party claims, demands, or suits for bodily injury (including death) or damage to tangible property to the extent arising out of the gross negligence or intentional misconduct of the indemnifying party or its employees or agents. Customer expressly agrees that in no event shall SENTRY be liable for any injury, damage, or loss only to the extent arising due to any cause other than SENTRY’s gross negligence or intentional misconduct. The obligations of SENTRY and Customer under this section are further subject to sections H and I below.
H. Limitation of Liability
NEITHER SENTRY NOR CUSTOMER WILL BE RESPONSIBLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS). SENTRY’S TOTAL LIABILITY TO CUSTOMER FOR DAMAGES RESULTING FROM ANY CAUSE WHATSOEVER SHALL BE LIMITED TO $250,000. IN NO EVENT SHALL SENTRY’S INDEMNIFICATION OBLIGATION EXCEED THE AMOUNTS PAID TO SENTRY UNDER THIS AGREEMENT OR THE AMOUNT OF INSURANCE REQUIRED BY THIS AGREEMENT, WHICHEVER IS GREATER. CUSTOMER UNDERSTANDS THAT SENTRY IS NOT AN INSURER REGARDING THE PRODUCTS. SENTRY SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT MAY RESULT FROM FIRE SAFETY OR SECURITY EQUIPMENT THAT FAILS TO PERFORM PROPERLY OR FAILS TO PREVENT A CASUALTY OR LOSS.
I. Force Majeure
SENTRY WILL NOT BE RESPONSIBLE FOR DAMAGE, LOSS, INJURY OR DELAY CAUSED BY CONDITIONS THAT ARE BEYOND THE REASONABLE CONTROL, AND WITHOUT THE INTENTIONAL MISCONDUCT OR NEGLIGENCE, OF SENTRY. SUCH CONDITIONS INCLUDE, BUT ARE NOT LIMITED TO: (A) ACTS OF GOD; (B) ACTS OF GOVERNMENT AGENCIES; (C) STRIKES; (D) LABOR DISPUTES; (E) FIRE; (F) EXPLOSIONS OR CASUALTIES; (G) THEFTS; (H) VANDALISM; (I) RIOTS OR WAR; (J) TERRORISM; AND (J) UNAVAILABILITY OF PARTS, MATERIALS, OR SUPPLIES.
J. Resolution of Disputes
If a dispute arises under this Agreement, the parties shall promptly attempt in good faith to resolve such dispute by negotiation. In the event the dispute is unable to be resolved, either party shall have the right to initiate arbitration by filing with the American Arbitration Association provided no other legal action has been previously filed. Upon filing of the arbitration, the AAA shall have the exclusive jurisdiction over the Dispute. Thus, either party may decide to file an action in a court of competent jurisdiction and if that court filing is the first legal proceeding filed, that court shall have jurisdiction over the Dispute to the exclusion of any arbitration. Arbitration shall be conducted in accordance with the then current arbitration rules of the American Arbitration Association or other arbitration service mutually agreed to by the parties. Arbitration must be completed within sixty (60) days after the Dispute is submitted to arbitration unless the parties mutually agree otherwise. The award rendered by the arbitrator shall be final, and judgment issued by the Arbitrator may be entered in accordance with applicable law in any court having competent jurisdiction. The party prevailing in the arbitration or court proceeding shall be entitled to an award of its reasonable costs, including reasonable attorneys’ fees, incurred as a result of the Dispute. CUSTOMER MUST BRING ANY CLAIM AGAINST SENTRY WITHIN ONE (1) YEAR AFTER THE CLAIM AROSE. IF CUSTOMER DOES NOT, CUSTOMER WILL HAVE IRREVOCABLY WAIVED ITS RIGHT TO SUE SENTRY AND/OR INSTITUTE OTHER PROCEEDINGS, AND SENTRY SHALL HAVE NO LIABILITY TO CUSTOMER FOR SUCH CLAIM. TIME IS OF THE ESSENCE RELATIVE TO CUSTOMER PURSUING ANY SUCH CLAIM. THE PROVISIONS OF THIS AGREEMENT WHICH APPLY TO ANY CLAIM SHALL REMAIN IN EFFECT EVEN AFTER THE AGREEMENT IS TERMINATED. SENTRY AND CUSTOMER EACH WAIVE THEIR RIGHT TO A JURY TRIAL.
1. If either party fails to perform any of its obligations under this Agreement, the other party shall provide written notice thereof to the party alleged to be in default. Should the party alleged to be in default fail to respond in writing or take action to cure the alleged default within ten (10) days of receiving such written notice, the notifying party may terminate this Agreement by providing written notice of such termination.
2. Upon termination of this Agreement for any reason, Customer shall pay to SENTRY all undisputed amounts owed through the date of termination within thirty (30) days of such termination. Customer shall also provide SENTRY with reasonable access to the Premises to remove any SENTRY property. Customer shall be liable for all fees, costs, and expenses that SENTRY may incur in connection with the enforcement of this Agreement, including without limitation, reasonable attorney fees, collection agency fees, and court costs.
3. If the Agreement is for a multi-year term, either party may terminate the Agreement after the first full year by giving the other party no less than forty-five (45) days written notice.
L. Asbestos, Mold and Hazardous Materials
“Hazardous Materials” means any material or substance that, whether by its nature or use, is now or hereafter defined or regulated as a hazardous waste, hazardous substance, pollutant, or contaminant under any local, state, or federal law, regulation, or ordinance relating to or addressing public and employee health and safety and protection of the environment, or which is toxic, explosive, corrosive, flammable, radioactive, carcinogenic or otherwise hazardous or which is or contains petroleum, gasoline, diesel, fuel, another petroleum hydrocarbon product or polychlorinated biphenyls. “Hazardous Materials” specifically includes mold, lead-based paints, and asbestos-containing materials (“ACM”).
Neither Customer nor SENTRY desires to or is licensed to undertake direct obligations relating to the identification, abatement, cleanup, control, removal or disposal of ACM. It is SENTRY’s policy to seek certification for facilities constructed prior to 1982 that no ACM is present, and Customer shall provide such certification for buildings it owns, or aid SENTRY in receiving such certification from facility owners in the case of buildings that it does not own, if SENTRY will undertake Services in the facility that could disturb ACM.
SENTRY will be responsible for removing or disposing of any Hazardous Materials that it uses in providing the Services (“SENTRY Hazardous Materials”) and for the remediation of any areas affected by the release of SENTRY Hazardous Materials. For other Hazardous Materials that may be present at its facilities (“Non-SENTRY Hazardous Materials”), Customer shall supply SENTRY with any information in its possession relating to the presence of Hazardous Materials if their presence may affect SENTRY’s performance of the Services. If either Customer or SENTRY becomes aware of or suspects the presence of Non-SENTRY Hazardous Materials that may interfere with SENTRY’s Services, it shall immediately stop the Services in the affected area and notify the other party. As between Customer and SENTRY, Customer shall be responsible at its sole expense for removing and disposing of Non-SENTRY Hazardous Materials from its facilities and for the remediation of any areas impacted by the release of the Non-SENTRY Hazardous Materials and must provide a certificate of abatement before SENTRY will be obligated to perform or continue its Services, unless SENTRY had actual knowledge that Non-SENTRY Hazardous Materials were present and acted in disregard of that knowledge, in which case (i) SENTRY shall be responsible at its sole expense for the remediation of any areas impacted by its release of such Hazardous Materials, and (ii) Customer shall remain responsible at its sole expense for the removal of Hazardous Materials that have not been released and for releases not resulting from SENTRY’s performance of the Services. Customer shall defend and indemnify SENTRY against any losses, costs, damages, expenses, and claims arising out of its failure to comply with this Section M.
M. Customer Data
Customer data is owned by and shall belong to Customer. SENTRY will access and use Customer data to provide Services to Customer. SENTRY will not disclose to any third party any individual Customer data acquired through performance of the Services without Customer’s consent. Customer agrees that SENTRY and its subsidiaries, affiliates and approved third party contractors and developers may collect and use Customer data for any reason, as long as any external use of the data is on a de-identified basis that does not personally identify Customer or any individual. Customer hereby grants SENTRY a perpetual, worldwide, irrevocable, royalty free license to use, modify, manipulate, sublicense, and create derivative works from such data. SENTRY shall retain all rights to any intellectual property, data, materials and products created as a result of its performance of Services.
N. Export Restrictions
Unless authorized by SENTRY in writing, in no event shall Goods be exported by Customer, directly or indirectly to any jurisdiction outside of the United States. Without limiting the foregoing, Customer shall comply with all federal, state and local laws, ordinances, statutes, rules, regulations, license and permit conditions or requirements, including, without limitation, all laws pertaining to environment and/or natural resources, health and safety, and any other laws relating to the operation or use of the Goods. Customer shall comply with all applicable laws, regulations and treaties relating to the sale and destination of the Goods, including, without limitation, U.S. export control regulations. Customer agrees not to sell any of the Goods in any territory or country prohibited by applicable U.S. laws and to obtain representations from its customers that they will not resell or transfer the Products to such countries or territories.
O. Sentry's Intellectual Property
SENTRY shall retain all right, title and interest in any (a) work provided to Customer, including without limitation, all software source and object code, documentation, technical information or data, specifications and designs and any changes, improvements or modifications thereto (“Deliverables”), and (b) Know-How (defined below) employed by SENTRY in the creation of the Deliverables or Goods or performance of the Services, whether known to SENTRY prior to, or developed or discovered or acquired in connection with, the performance of its obligations under this agreement. Ownership of all Deliverables and Know-How shall vest solely in SENTRY and no Deliverables shall be deemed “works made for hire.” Without limiting the generality of the foregoing, ownership of all source files used in the course of performing the Services shall remain the exclusive property of SENTRY. For purposes of this Agreement, “Know-How” means any know-how, processes, techniques, concepts, methodologies, tools, analytical approaches, database models and designs, discoveries, and ideas furnished, produced by, developed, or used by SENTRY in the creation or provision of the Deliverables or in the performance of the Services, and any changes, improvements, or modifications thereto or derivatives thereof.
P. Miscellaneous Provisions
1. All notices required to be given hereunder shall be in writing and shall be considered properly given if: (a) delivered in person, (b) sent via the United States Postal Service, postage prepaid, registered or certified with return receipt requested, (c) sent by overnight delivery service (e.g., FedEx, UPS), or (d) sent by facsimile, email or other electronic means and confirmed by facsimile, return email or telephone.
2. This Agreement may not be assigned by Customer without SENTRY’s prior written consent. SENTRY shall have the right to assign this Agreement to any other person, firm, or corporation without Customer’s consent. SENTRY shall also have the right, in its sole discretion, to subcontract any portion of the Products. This Agreement inures to the benefit of and is applicable to any assignees or subcontractors of SENTRY, and is binding upon Customer with respect to said assignees or subcontractors with the same force and effect as it binds Customer to SENTRY.
3. This Agreement shall be subject to and governed by the laws of the State where the Services are performed.
4. If any provision of this Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
5. This Agreement is the entire contract between SENTRY and Customer and supersedes any prior oral understandings, written agreements, proposals, or other communications between the parties.
6. Customer acknowledges and agrees that any purchase order issued by Customer in connection with this Agreement is intended only to establish payment authority for Customer’s internal accounting purposes and shall not be considered to be a counteroffer, amendment, modification, or other revision to the terms of this Agreement. No term or condition included or referenced in Customer’s purchase order will have any force or effect and these terms and conditions shall control. Customer’s acceptance of any Services shall constitute an acceptance of these terms and conditions. Any proposal for additional or different terms, whether in Customer’s purchase order or any other document, unless expressly accepted in writing by SENTRY, is hereby objected to and rejected.
7. If there are any changes to Customer’s facilities or operations, or to applicable regulations, laws, codes, taxes, or utility charges, that materially affect SENTRY’s performance of the Services or its pricing thereof, SENTRY shall have the right to an equitable and appropriate adjustment to the scope, pricing, and other affected terms of this Agreement.