TECHNICAL SERVICES TERMS AND CONDITIONS
BAYSIDE POWER SYSTEMS, INC., sets forth the following terms and conditions below for all customer accounts (hereinafter “CUSTOMER”).
WHEREAS, BAYSIDE provides technical advice and assistance including testing, adjustment, servicing and maintenance of power generating equipment through the use of its officers, directors, affiliates, associated third parties, including, without limitation, Precision Rentals, LLC, subcontractors, suppliers, employees and/or agents (hereinafter collectively “BAYSIDE”); and
WHEREAS, CUSTOMER requires such services for its own machinery and equipment; and
WHEREAS, the parties have agreed to the terms and conditions regarding BAYSIDE’s duties, responsibilities, limitations, and compensation to supply such technical services to CUSTOMER.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties do agree as follows:
- Premises. The premises set forth above are true and accurate and are adopted by both parties to this agreement.
- The parties have agreed to the service rate schedule and the specific scope of work as set forth in the “Rates and Services” documentation, which by its attachment is incorporated. The service rates schedule is subject to change on a calendar year basis; however, current hourly rates for additional services associated with the indicated turbine-generator set will be held as specified in the “Rates and Services” documentation for the duration of any multi-year service package initially purchased under this agreement.
- Customer’s Responsibilities.
- CUSTOMER will render all reasonable assistance to BAYSIDE in connection with the rendering of services including necessary space and facilities adjacent to the work area for use as a field office and for the safe and secure storage of drawings, tools, materials, and accessories. Purchaser shall also furnish equipment, supplies, and language interpreters or translators as needed to accomplish the work outlined.
- CUSTOMER shall make available all necessary equipment and tooling, including, without limitation, heavy lifting equipment and instruments. BAYSIDE may bring certain tools and testing equipment to the site which shall remain BAYSIDE’s property. At CUSTOMER’s request, BAYSIDE may make available certain special test or installation instruments/equipment under BAYSIDE’s established rental provisions.
- Unless otherwise provided in BAYSIDE’s proposal, CUSTOMER shall supply at its own cost any labor including labor supervision that may be required in connection with the services of BAYSIDE.
- The operation of the equipment at CUSTOMER’s site is the primary responsibility of the CUSTOMER. CUSTOMER shall indemnify and save harmless BAYSIDE, from any expense and liability including reasonable attorney’s fees incurred by or imposed upon BAYSIDE, based upon injury or death to persons or damage to property resulting from operation of equipment, use of apparatus, technical advise rendered, and/or methods or processes utilized by BAYSIDE’s personnel.
- CUSTOMER shall at all times exercise all necessary precaution for the safety of BAYSIDE’s employees at the site. BAYSIDE may from time to time conduct safety audits to insure safe conditions exist and make recommendations to CUSTOMER concerning corrections. Neither the conduct of safety audits nor the making of any recommendations by BAYSIDE shall relieve the CUSTOMER of the responsibility to provide a safe place to work.
- Payment. Absent any written agreement attached to this contract to the contrary, BAYSIDE shall be paid by CUSTOMER within ten (10) days of the presentation of BAYSIDE’s invoice. Payment shall be made in U.S. dollars. If the invoice is not paid in full within thirty (30) days of the date of delivery of the invoice to CUSTOMER, the invoice shall bear interest at the rate of 1-1/2% per month on any unpaid balance. As to multi-year service packages, CUSTOMER may terminate a multi-year package only upon payment of reasonable charges based upon expenses already incurred and commitments made by BAYSIDE. Upon termination, unused portions of the contract will be refunded pro rata based upon remaining one year increments; however, no refund will be made to CUSTOMER for any promotional bonus service periods.
- If CUSTOMER fails to fulfill any condition of its payment obligations, BAYSIDE may withhold deliveries, suspend performance or continue performance at BAYSIDE’s sole election. In the event payment in full is not made in accordance with the payment agreement, BAYSIDE shall be entitled to an extension of time for its performance equal to the period of time of CUSTOMER’s failure to pay on the schedule set forth above, whether or not BAYSIDE elects to suspend performance.
- Changes, Deletions and Extra Work. If CUSTOMER makes any change in the scope of work of the contract as established in the “Rates and Services” documentation hereto and such change results in increased cost to BAYSIDE or will require additional time for BAYSIDE’s performance of obligations or if BAYSIDE is otherwise adversely affected by such CUSTOMER change, then the schedule, warranty, price, and other terms and conditions of the contract shall be adjusted. In no event shall BAYSIDE be obligated to proceed with any change unless the written contract modifications have been made and agreed in writing signed by both parties.
- Taxes, Duties, Fees, Charges or Assessments. Any taxes including, without limitation, income, stamp, turnover, value added, any duties, fees, charges or assessments of any nature levied by any governmental authority or unit in connection with the services provided by BAYSIDE shall be the responsibility of the CUSTOMER and shall be paid directly by the CUSTOMER to the governmental authority concerned. In the event BAYSIDE is required to pay any fines, levies, penalties, or assessments as a result of CUSTOMER’s failure to comply with applicable laws or regulations governing the payment of such levies, the amount of such payments plus the expense of any required currency conversion shall be promptly reimbursed in U.S. dollars by CUSTOMER within ten (10) days of BAYSIDE’s submission of invoices therefore.
- BAYSIDE warrants to CUSTOMER that BAYSIDE’s technical services will be performed in a competent manner and in accordance with any mutually agreed specifications. BAYSIDE further warrants that any material furnished by BAYSIDE will be free from defects in material, workmanship, and title. BAYSIDE will re-perform any defective services to the extent necessary and feasible and will, at its option, repair or replace any defective material furnished by BAYSIDE; provided, however that any defect in services and material shall occur within one (1) year from the completion of services, that BAYSIDE is notified in writing within thirty (30) days of the discovery of such defective service or material and that, as to material, such material is available to BAYSIDE at the time the notice of defect is presented. Except for compliance with the foregoing warranties, risk of loss, or damage to any material or equipment shall remain with CUSTOMER regardless of where BAYSIDE’s services are provided.
- The foregoing warranties set forth the exclusive remedies of CUSTOMER and the sole liability of BAYSIDE for claims based on failure of, or defect in BAYSIDE furnished services or material, whether a claim, however instituted is based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN, IMPLIED, ORAL, OR STATUTORY INCLUDING ANY WARRANTY OF MERCHANTABILITY.
- BAYSIDE does not warrant any products or services provided by others.
- BAYSIDE shall have no obligation or liability for damage which results because CUSTOMER fails to store, operate, or maintain the material or equipment being worked upon in accordance with generally approved industry practices or operating or maintenance instructions furnished to CUSTOMER.
- Limits of Liability.
- The total liability of BAYSIDE, on all claims of any kind (excluding claims for death or bodily injury), whether based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, resulting from this Contract, its performance or breach or from any services covered by or furnished under this Contract or any extension or expansion thereof (including remedial warranty efforts), shall in no case exceed $10,000. All such liability shall terminate upon the expiration of the warranty period specified in the Warranties section above.
- In no event, whether in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, shall BAYSIDE, be liable for loss of profits or revenue; loss of use of the equipment being worked on or any associated equipment or facilities; cost of capital; cost of purchased power or fuel; cost of substitute equipment, facilities or services; downtime costs; penalties; any special, consequential, incidental or exemplary damages; or claims of CUSTOMER for any of the foregoing items, and CUSTOMER will indemnify BAYSIDE, against any such claims from CUSTOMER’s customers, affiliates, subsidiaries, or customers.
- Unless otherwise agreed by BAYSIDE’s authorized representative, services and material furnished hereunder are not intended for use in connection with any nuclear facility or activity. If so used, BAYSIDE disclaims all liability for any nuclear damage, injury of contamination, and CUSTOMER shall indemnify BAYSIDE, against any such liability, whether in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise.
- BAYSIDE shall not be liable for any loss or damage whatsoever arising from its failure to discover or repair latent defects or defects inherent in the design of the equipment being worked on. In no event shall BAYSIDE be liable for loss or damage which results when equipment is put in use against its advice.
- To assure adequate technical services coverage as defined in this agreement, BAYSIDE personnel assigned to the contracted scope of work shall not be required to work on other units or projects during the duration of the scope of work performed at the CUSTOMER’s site. The intent of this limitation is to assure that technical services are not extended beyond the capability of company personnel. Variations and/or service extensions will be considered by BAYSIDE’s main office through the means of a separate proposal or a mutually acceptable modification of this Contract.
- If BAYSIDE furnishes CUSTOMER with advice or assistance concerning any products, systems or work which is not required pursuant to the Contract or any other contract between the parties hereto, the furnishing of such advice or assistance will not subject BAYSIDE to any liability, whether in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise.
- If CUSTOMER is furnishing BAYSIDE’s services or material to a third party by contract, CUSTOMER shall obtain from such third party a provision affording BAYSIDE, the protection of the “Limits of Liability” specified in this contractual agreement.
- In the event of any conflict, this Article shall take precedence over any other Article in the Contract. The invalidity, in whole or part, of any of the foregoing paragraphs will not affect the remainder of such paragraph or any other paragraph of this Article.
- Complete Agreement; Amendments. This contract contains the complete agreement between the parties. All previous and collateral agreements (including letters of intent and purchase orders issued by CUSTOMER), representations, warranties, promises and conditions relating to its subject matter are superseded by this contract. This contract is binding upon the parties only when executed by both parties.
- Transfer of Equipment Ownership or Control. The purchased services and contract terms and conditions are transferable as a value-added benefit to a new plant operator or owner, provided that the plant’s physical location has not changed and that the new owner/operator accepts an assignment of this contract and agrees to its terms.
- Notices and Correspondence. Notices authorized or required under this agreement shall be made in English, signed by a duly authorized representative of the party initiating such notice and shall be sent by regular or courier mail, delivery prepaid to the following addresses: Bayside Power Systems, Inc., c/o Michael McKinney, 5813 Mariners Watch Drive, Tampa, Florida 33615-4257. Notices will not be effective until such notices are received.
- Governing Law. This Agreement shall be governed and construed in accordance with the statutory and decisional law of the State of Florida governing contracts performed in their entirety in Florida. The parties agree that any dispute or claim arising under this contract shall be litigated in Tampa, Hillsborough County, Florida, the sole proper venue.