Unless otherwise specified in the Preventative Maintenance Agreement (the “Maintenance Agreement”), all Services provided by Johnson & Towers (“J&T”) for the Customer/Owner/Agent (“Customer”) are made on the following terms and conditions:
J&T will render maintenance, testing, and/or inspections during J&T’s regular business hours (8:00am-4:30pm, Monday through Friday) unless otherwise stated in the Agreement. Parts and labor provided outside the scope of work in the Agreement will be invoiced at the prevailing labor rate, with a 4-hour minimum labor charge for all emergency service requests performed outside of regular business hours.
PRICES:
Pricing is FOB Customer’s Service location. Prices exclude all federal, state, and local sales, use, or excise taxes, charges and duties assessed upon the Products or Services described in this Agreement. Any such tax, fee, or charge shall be paid by the Customer in addition to the prices quoted or invoiced. Prices do not include taxes, freight, or environmental charges for deliverables inside or outside the scope of the Agreement.
PAYMENT TERMS:
Invoices will be issued upon delivery of goods and/or services. Payment terms will be Net Thirty (30) Days after completion of the service work. Additional charges apply for invoices billed with extended payment terms. Payment is not contingent on payment from or approval of any third-party. J&T reserves the right to add to any account outstanding for more than thirty (30) days a service charge of 1.5% per month on any outstanding or delinquent balance. Customer may not withhold any amount from J&T as retention for failure of Customer to receive payment from other parties. If invoices remain unpaid after forty (40) days, the Customer’s account will be subject to being placed on a cash on delivery (COD) basis and shipments, deliveries, and performance of work may be suspended or terminated until receipt of payment or security, or upon terms and conditions acceptable to J&T. If Customer fails to pay J&T as specified, J&T shall be entitled to recover all collections costs, reasonable 15% attorney fees, and expenses incurred in collecting payment, including interest.
SERVICE:
J&T shall, in accordance with the scope of work in the Agreement and in accordance with generally accepted professional practices, furnish all necessary labor, parts, and materials to maintain/restore the Equipment to good working condition and repair. All J&T supplied parts, replaced by J&T, shall comply with the equipment manufacturer’s published standards and/or specifications. This Agreement does not cover damages caused by misuse, negligence, accident, theft or unexplained loss, abuse, fire, flood, wind, lightning or other electrical surge, tornado, sandstorm, hail, explosion, earthquake, smoke, vandalism, terrorism, acts of God or public enemy, or improper wiring, installation, repair, or other modification by anyone other than J&T. Repairs required by any of the above excepted causes will be made by J&T and invoiced at the prevailing rates for the necessary labor and materials.
DISCONTINUANCE OF PARTS:
For those systems deemed obsolete by the manufacturer (systems typically greater than 15 years of age), J&T will continue to source replacement parts to the best of its ability. Should replacement parts for these obsolete systems not be available, J&T will notify Customer of such and shall be owed for any service work or expenses performed/provided to that point.
ENTRY TO PERFORM WORK:
If J&T is required to enter Customer’s premises in connection with activities related to this Agreement, J&T’s rights of entry shall be subject to applicable governmental security laws and Customer’s security regulations and procedures. If such requirements would prevent a technician from reaching the location where services are to be performed within the time set forth in the Agreement, the required response time set forth in the Agreement will be extended by the additional time taken by the technician to reach the service site due to the security regulations and procedures and Customer will be billed for such time. Once J&T is on site for a scheduled activity, additional labor charges may accrue if work is cancelled and/or postponed due to end-user’s operational requirements or due to failure of auxiliary components/systems which are not part of the equipment covered by this Agreement.
FORCE MAJEURE:
J&T shall not be liable for any delay or failure to perform its obligations hereunder, if such delay or failure is due to any cause beyond the control of J&T, which include but are not limited to acts of God, unavailability or shortages of materials or energy necessary to produce and/or deliver equipment by usual modes of transportation, fire, flood, war, embargo, strikes, labor disputes, explosions, riots, laws, rules, regulations, restrictions or orders of any governmental authority or any cause beyond the reasonable control of J&T or its suppliers.
CANCELLATION:
You may cancel your Service Agreement at any time. You must notify us in writing via email at PMAgreementCancellation@johnsontowers.com to cancel your Agreement. Your cancellation will be effective on the date we receive your notification or on a later date that you request. We may cancel your Service Agreement if you fail to pay for any services or for any other reason in our sole discretion. Customer will pay in full for any work which is complete and will pay J&T’s charges for all work in process, raw materials and supplies on hand or for materials for which commitments have been made by J&T and additional charges J&T may incur.
WARRANTY:
Materials provided herein are warranted by J&T for 12 months from the date of invoice, limited to defects in materials and workmanship from J&T’s supplier. Services provided herein are warranted by J&T for ninety (90) days or 50 running hours, whichever is less, and limited to defects in service workmanship provided by J&T. Inspection and/or service by J&T does not guarantee that failures will not occur in any given time frame or between J&T’s visits. Customer reserves the right to accept/reject any recommendation made by J&T regarding service, maintenance or repair of engines and equipment.
LIMITATION OF LIABILITY:
J&T’s liability is limited to the value of the work, repair, or material actually used in the Agreement during the effective dates of the Agreement
J&T shall not be liable for any losses, damages, injuries, claims, demands and expenses including, but not limited to, consequential or incidental damage caused by war, Acts of God, acts of terrorism, governmental regulations, strike, loss damage, destruction, obsolescence, claims by third parties, or loss by Customer as a result of the failure of the equipment to perform or any loss or claim not herein specified, but of a contingency nature. J&T shall not be liable for damages to the Equipment if Customer authorizes service, operation, and/or modification of said Equipment by another party and shall not be liable for future damages arising from the services performed by a Customer-authorized third-party.
INSURANCE:
J&T maintains insurance coverage and limits as it deems necessary. Upon Customer’s request, J&T (a) shall provide Customer with a Certificate of Liability Insurance, and (b) shall provide Customer with thirty (30) days advance notice of any cancellation or material change in coverage. If Customer requires coverage or limits in addition to those in effect as of the date of the agreement, premiums for additional insurance shall be paid by the Customer.
INDEMNIFICATION:
Customer shall defend, indemnify, and hold harmless J&T, its employees, directors, affiliates, customers, agents, vendors, successors, and assigns against any and all damages, claims or liabilities, expenses (including attorney’s fees) or injuries, including death, arising out of or resulting in any way from any negligent act or omission of Customer, its agents, employees, or subcontractors. The foregoing indemnity shall not apply to any damages or liabilities to the extent caused by the willful misconduct or gross negligence of J&T.
CHANGE IN TERMS:
We reserve the right to change this agreement at any time. Any changes will be effective upon posting of the revisions at www.westernbranchdiesel.com which is reflected in the date last updated. For existing active Service Agreements, such changes shall be effective thirty (30) days after posting of the revisions at www.westernbranchdiesel.com. Services performed after that date will constitute your acceptance of such changes.
REGISTRATION/TRAINING FEES:
If Customer requires J&T to register with an entity, or incur additional costs such as third-party billing or training specific to the servicing requirements of Customer’s Equipment, then Customer shall reimburse J&T all costs affiliated with these fees. Costs include direct cost, time and expenses, plus 20% for administration.
MODIFICATION:
The foregoing terms and conditions and the related Agreement constitute the entire agreement between J&T and the Customer with respect to the subject matter thereof, superseding all previous communications and negotiations whether written or oral. No modification of these terms and conditions or the related Agreement shall be binding unless it is in writing and executed by authorized representatives of J&T and the Customer.
APPLICABLE LAW:
This Agreement and any subsequent Purchase Orders issued hereunder shall be governed by and construed in accordance with the laws of the State of Virginia. Additionally, if any legal action or inquiry is taken against J&T, such action must be filed with a Court of competent jurisdiction in the State of Virginia.
CONCLUSION:
All orders accepted by J&T are with the express condition that the Customer agrees with these Terms and Conditions of Service. Notwithstanding terms and conditions contained in Customer’s purchase order, these Terms and Conditions of Service and the related Agreement shall prevail. Other communications shall not be deemed a waiver of the Terms and Conditions of Service unless signed by both Parties. No representations or guarantees other than those contained herein shall be binding upon J&T unless made in writing and signed by an Officer of J&T. If Customer objects to any Terms and Conditions of Service or the related Agreement, Customer shall within forty-eight (48) hours after receipt of this Agreement, notify J&T in writing of Customer’s specific objections. The parties understand and agree that J&T has the right to reject Customer’s objections to this Agreement and J&T, at its election, may terminate this Agreement.
