WHEREAS Prestige Automation LLC (“PA”) desires to provide certain maintenance and repair services, and the Client desires to retain PA for the provision of such services, all as provided below;
NOW, THEREFORE, the parties agree to the following terms and conditions in exchange for their mutual promises and covenants.
PA will provide all labor and equipment necessary to maintain the Audiovisual (“AV”) system described in Attachment “A,” subject to the limitations provided below under the Section title “Excluded Equipment,” (the “System”) in its present state of repair, except for ordinary wear and tear. PA will use all reasonable efforts to respond quickly to any System failures, but all service calls will be handled during PA’s regular business hours. The Client may request priority service outside of PA’s regular business hours, but PA will charge at its then current hourly rate for such priority services.
2. RESPONSIBILITIES OF CLIENT
The Client shall be responsible to obtain any necessary permission, permitting or insurance or for meeting any other conditions for the original installation of all equipment which PA will service under this Agreement. Client is also responsible for pre-service and pre-installation construction requirements such as placement and amperage of outlets required by the audio- visual equipment.
3. INITIAL MAINTENANCE AND TESTING
PA will provide an initial maintenance and testing inspection of the System at a time mutually agreeable to PA and the Client as soon as possible after signing this Agreement. If any repairs are required to bring the System into proper working order, the Client will pay PA its current hourly rates for such repair work. If the Client pays PA to bring the System into proper working order, there will be no charge for the initial maintenance and testing inspection of the System, except for fees provided for below.
If the Client does not pay PA its current hourly rate to bring the System into proper working order, PA may terminate this Agreement and collect from the Client PA’s current hourly rate for the initial maintenance and testing inspection of the System.
4. PHONE SUPPORT DURING OFFICE HOURS
Phone service support is provided at no additional charge to the maintenance contract and allows the Client to call PA during office hours for support up to a maximum of 2.00 hours per complete calendar month. The PA team will do their best to resolve any problems over the phone. Time spent in excess of 2.00 hours per complete calendar month will be charged by PA at its then current applicable hourly rate.
5. SEMI-ANNUAL INSPECTION
PA will perform a preventative maintenance inspection and testing of the System semi- annually for the term of this Agreement on dates mutually agreed between the Client and PA.
Labor to repair any damage to the System discovered as a result of the semi-annual maintenance and testing and arising from equipment supplied by PA, subject to there being no manufacturing defect or incorrect use by the client, will be provided by PA at no additional charge under this Agreement, except as provided above for the initial maintenance and testing or as provided elsewhere in this Agreement.
- During these visits, the Engineer will: (these can only be guaranteed as working on the date of inspection)
- Inspect visible cables for obvious faults or defects.
- Inspect connections to items of equipment for loose connections and damage to connectors.
- Inspect items of equipment, ensuring these are functioning and that any and all software updates are applied.
- Check for picture quality on TVs and projectors.
- Realign, clean filters, clean lenses and check lamp life of projectors (where applicable)
- Check Audio EQ and rebalance sound on surround sound and/or other audio systems if needed.
- Check batteries in battery powered equipment to ensure that rechargeable batteries are holding their charge and replace all non-chargeable batteries if needed.
- Attempt to identify any hardware defects within system and contact Client with plan and quote (if applicable) for replacement/repair of items.
- Check network connection with ISP provider and run diagnostics. Changes will be made if needed.
- Post inspection, the office will contact the Client with suggested improvements and upgrades to the system if applicable.
- Advise equipment to be replaced/upgraded and arrange estimates to be provided.
PA will perform two planned scheduled maintenance visits that will be arranged so that the system is regularly inspected through the course of the yearly agreement. Each visit will include an engineer for up to one day and a full inspection of the system. Two planned scheduled maintenance visits – each visit [$1,050.00]
Annual total [$2,100.00]
Paid Monthly: [$175.00]
Paid Quarterly (discounted): [$500.00]
Paid Yearly (discounted): [$1,950.00]
Should an unscheduled visit be required for any reason, these will be carried out during office hours (8 am to 5 pm) and are charged as follows: a $150.00 call out fee, which also covers the first hour of labor, and $110.00 per hour for all subsequent hours of labor. For after-hours/weekend and holiday assistance, the following charges will apply: a $220.00 call out fee, which also covers the first hour of labor, and $150.00 per hour for all subsequent hours of
PA will do its best reasonable effort to get personnel to the Client’s site within one working day of receiving a call from a client with a Maintenance Support Agreement.
Payment of all invoices is due upon receipt. All invoices shall be paid to Prestige Automation, LLC at the address provided above, unless the Client is notified of another name and/or address to which to make payment by an authorized representative of PA. All balances outstanding thirty (30) days after the issuance of an invoice shall bear interest at a rate of ten percent (10%) per annum, compounded monthly.
The Client may add additional equipment to the System under this Agreement at the then prevailing monthly or annual maintenance charge for such additional equipment. PA must consent in writing to the addition of such equipment to the System, which consent shall not be unreasonably withheld.
The term of this Agreement shall be from the date first written above until the date that is twelve (12) calendar months after the date first written above. This Agreement shall be automatically renewed for successive twelve (12) month terms, after the initial twelve (12) month term, unless either party elects to terminate this Agreement by providing written notice to the other party at least thirty (30) days prior to the expiration of the initial or any subsequent term.
8. EXCLUDED ITEMS
The following items are not included in the monthly or annual service fee set forth above, and will be charged to the Client as a separate expense or, if applicable, charged at PA’s then prevailing hourly rate:
A. All labor for maintenance and repair for any equipment that is not part of the System or not supplied by PA;
B. All labor for any maintenance or repair to equipment that has been moved from its original location or reconfigured in any way, such work having been done by any other than PA;
C. All labor for the movement, removal, reconfiguration, or other changes to any portion of the System;
D. All charges by any third parties in connection with the services PA provides under this Agreement, including utilities and other contractors;
E. All state and local taxes or fees imposed with respect to the services provided under this Agreement.
F. Any cost, including labor, necessary to repair equipment due to improper use or storage of the system.
9. EQUIPMENT ON LOAN
PA from time to time may loan the Client equipment that belongs to PA (“Loaner Equipment”), and install Loaner Equipment in the System, so that the System may remain operational while components of the System are being repaired or replaced. PA makes no commitment to provide Loaner Equipment, is not responsible for keeping the System operational while components are being repaired or replaced, and may decide in its sole discretion whether or not to provide Loaner Equipment, the length of time Loaner Equipment will be provided, and the nature of Loaner Equipment. Ownership of and title to Loaner Equipment shall at all times remain with PA.
The Client agrees to indemnify PA for any damage or loss occurring to Loaner Equipment, and any direct or consequential damages resulting from a failure of Loaner Equipment, including claims by third parties for consequential or direct damages, during the period after PA installs Loaner Equipment in the System and before PA removes Loaner Equipment from the System. The Client agrees that it will not hold PA liable for any damages that may occur to the System, or any consequential damages resulting from a failure in the System or Loaner Equipment, that result from or relate to Loaner Equipment. PA will remove Loaner Equipment at the request of the Client, and PA may choose to remove Loaner Equipment at any time in its discretion.
The Client acknowledges that PA provides Loaner Equipment as a gratuitous benefit to customers when PA is reasonably able to do so, and the Client has no right to or expectation of receiving Loaner Equipment.
10. INCREASES IN SERVICE CHARGE
PA may increase the monthly and annual service charge set forth above after the initial twelve (12) month term of this Agreement by providing the Client with written notice of such rate increase at least thirty (30) days prior to the first month for which such increased rate shall be effective. The Client shall have the right to cancel this Agreement if it finds the new rate unacceptable by notifying PA in writing of the client’s intention to cancel the Agreement at least fifteen (15) days prior to the first month for which the increased rate will be effective.
11. DEFAULTS OR TERMINATION
In the event (i) Client fails to pay any amount due, (ii) Client fails to comply with any of the terms or conditions hereof, (iii) Client makes an assignment for the benefit of creditors or if a corporate entity seeks protection under Chapter 7 or Chapter 11 of the US Bankruptcy Code, (iv) an order for relief is entered against Client under any bankruptcy proceeding, (v) a receiver or trustee is appointed for all or substantially all of the assets of Client, (vi) there is a dissolution or termination of the existence of Client, or (vii) unauthorized personnel make any changes to, repair, or replace any portion of the System, PA may, in addition to any other remedies that may be available, terminate without notice all services subscribed for under this Agreement, after which PA shall have no further responsibility under this Agreement in regard to the services furnished under this Agreement.
12. PA IS NOT AN INSURER; LIMITATION OF LIABILITY
A. The Client understands and agrees that : (i) PA is not an insurer, and that insurance, if any, covering personal injury and property loss or damage to, or resulting from, the System shall be obtained by Client; (ii) the payments provided herein are based solely on the value of the maintenance and repair services to be performed and are unrelated to the value of the System; (iii) PA makes no guaranty or warranty, including any implied warranty of merchantability or fitness for a particular purpose or that the System will be adequate for the Client’s purposes.
The Client acknowledges that it is impractical to fix the actual damages, if any, which may proximately result from the failure of PA to perform any of the obligations or services covered by this Agreement, including, but not limited to, maintenance and repair services, or from the failure of the System to operate properly with resulting loss to Client because, among other things: (i) PA does not operate, possess, or control the use of the System, (ii) the System may be extensively damaged by improper use or storage, (iii) the cause of damage to the System may be difficult or impossible to determine, (iv) PA’s services provided under this Agreement are not intended to, and are not capable of, preventing damage to the System as a result of improper use or storage, (v) the inability to ascertain what portion, if any, of any loss will be proximately caused by PA’s failure to perform its obligations under this Agreement, and (vi) the
uncertain nature of any occurrences that may result from the improper functioning of the System.
B. The Client understands and agrees that if PA should be found liable for loss or damage because of the failure of the System to perform properly or the failure of PA to perform any of its obligations or to provide any of the services subscribed for under this Agreement, or any services provided in connection with services provided under this Agreement, PA’s liability shall not exceed a sum equal to four (4) times the monthly service charge or one third (1⁄3) the annual service charge, as applicable, set forth above, and this liability shall be exclusive; and that the provisions of this Section shall apply if loss or damage, irrespective of cause or origin, results directly or indirectly, to persons or property, from the performance or non-performance of the obligation imposed by this Agreement, or for negligence, active or otherwise, of PA, its agents, assigns, employees or subcontractors. Client irrevocably and unconditionally accepts that PA will not under any circumstances be liable for any indirect, consequential, or incidental losses, including, but not limited to, any loss of profits.
C. The Client shall be responsible for all loss of or damage to the System due to fire, theft, wind, water, flooding, or other similar causes.
13. ASSIGNMENT BY CLIENT
This Agreement may not be assigned by the Client without the written consent of PA. The Client acknowledges that the sale or transfer of the Client’s premises or the System shall not relieve the Client of its duties and obligations under this Agreement unless PA agrees to release the Client from such duties and obligations.
14. ASSIGNMENTS OR SUB-CONTRACTING BY PA
PA shall have the right to assign this Agreement in whole or in part to any other person, firm, or corporation and shall have the further right to sub-contract any maintenance, repair, or other services that it is obligated to perform under or in connection with this Agreement. The Client acknowledges that this Agreement is applicable to any assignees and/or sub-
contractors of PA.
15. CHOICE OF LAW; VENUE; WAIVER OF JURY TRIAL
This Agreement shall be construed and enforced pursuant to the laws of the State of Florida, without giving effect to any choice or conflict of law provisions and that the exclusive venue and jurisdiction for any action arising under or relating to the enforcement of this Agreement shall be in the Courts located in Miami-Dade County, Florida, with the Parties expressly consenting to and submitting themselves to jurisdiction and venue in Miami-Dade County and waiving any
objection thereto. By entering into this Agreement, PA and Client agree that neither PA nor Client, nor any assignee, successor, heir, or legal representative of PA or Client (all of whom are hereinafter referred to as the “Parties”) shall seek a jury trial in any lawsuit, proceeding, counterclaim, or any other litigation or other dispute resolution procedure based upon or arising out of this Agreement, any related agreement or instrument, the dealings or the relationship between or among the Parties or any action in which a jury trial has already been waived. The provisions of this Section have been fully negotiated by the Parties and shall be subject to no exceptions. PA has in no way agreed with or represented to any of the other Parties that the provisions of this Section will not be fully enforced in all instances.
Client’s agreement in this Section is a material part of the consideration to PA in making this Agreement. Furthermore, Client affirms it has taken appropriate legal advice before entering into this Agreement.
16. EVENTS BEYOND THE CONTROL OF PA
PA assumes no liability for delay or for interruption of any services to be provided under or in connection with this Agreement due to strikes, riots, floods, storms, earthquakes, fire, power failures, insurrection, interruption or unavailability of electrical service, acts of God, or for any other cause beyond the control of PA, and will not be required to provide services to the Client while interruption of services due to any such cause may continue. PA assumes no liability for delay of service due to non-cooperation of the Client or its agents in providing access to the area of its premises necessary to maintain or repair the System.
Section titles used in this Agreement are for reference only and are not to be construed as governing the construction of the provisions of this Agreement.
18. ENTIRE AGREEMENT; MODIFICATIONS; WAIVER
The Parties intend this written Agreement to be a final expression of their agreement and as acomplete and exclusive statement of the terms thereof. This Agreement supersedes all prior representations, understandings, or agreements of the Parties, written or oral, and shall constitute the sole terms or conditions of the sale of services. This Agreement can be modified only in writing, signed by the Parties or duly authorized agent. No waiver of a breach of any term or condition shall be construed to be a waiver of any succeeding breach.
All notices required to be given under this Agreement shall be addressed to Prestige Automation LLC, Attention: 4120 Bayhead Drive Apt.102, Bonita Springs, Florida 34134, the address provided above, and to the Client at the address provided above, or such other addresses as either party may from time to time designate by written notice to the other or by receipted email to [email protected] in the case of PA. Notice shall be deemed to have been given of the date such notice has been mailed by certified mail, return receipt requested, with the United States Postal Service or in the case of receipted email on electronic proof of delivery.
In the event any provision of this Agreement is determined by a court to be invalid, the Parties agree that such invalidity shall not affect the remaining portions of this Agreement.
21. MANUFACTURER WARRANTIES
Any component of the System that is or was at the time of initial installation the subject of a warranty by the manufacturer of that component (“Covered Equipment”) shall remain subject to the manufacturer’s warranty. PA will cover labor to return the unit to the manufacturer and labor to reinstall the factory repaired item for all items supplied by PA, within the PA warranty period. The shipping costs to return the item shall be paid by the Client.
22. EXCLUDED EQUIPMENT
The System shall consist solely of equipment that PA both (i) sells to the Client and (ii) installs on the premises of the Client. Any other equipment, regardless of whether such equipment is attached to, installed with, or an integral part of the overall sound system on the premises of the Client, including but not limited to equipment that the Client installs, equipment installed by a third party, or equipment the Client purchases from a third party and that is installed by PA, shall not be a part of the System, and this Agreement does not provide for maintenance, testing, and repair services to such excluded equipment; unless a rider is attached to this Agreement in which (i) reference is made to this Section, (ii) Client recognizes that certain identified equipment was not sold and installed by PA, and (iii) PA specifically agrees to service such identified equipment.
23. EXCLUDED SERVICES
The services that PA will provide under this Agreement are only the maintenance and repair to be performed directly on the System and that are necessary to keep the System in proper working order. PA is not obligated to provide any additional ancillary services, including, but not limited to, painting, carpentry, wall repair, woodwork, structural improvements or reinforcements, conduit, or any services relating to the delivery of electricity to the System, and all such excluded services shall be the sole obligation of the Client, regardless of whether the need for such services relates to or rises from PA’s provision of services under this Agreement.
24. AUTHORITY TO EXECUTE
Each of the Parties hereby represents and warrants that they have the authority to enter into this Agreement, and that each person signing on behalf of a corporate entity (where appropriate) has all of the requisite power to bind that entity.
25. COSTS AND EXPENSES; ATTORNEYS’ FEES
In the event any Party hereto fails to perform any of its obligations under this Agreement or in the event a dispute arises concerning the meaning or interpretation of any provision of this Agreement, the prevailing party in proceedings to enforce this Agreement shall recover their reasonable attorneys’ fees and costs as awarded by a Court of competent jurisdiction from which there is no further right of appeal.
THE PERSON SIGNING ON BEHALF OF THE CLIENT ALSO SIGNS IN THAT PERSON’S PERSONAL CAPACITY AS GUARANTOR OF THE OBLIGATIONS OF THE CLIENT UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE CLIENT’S OBLIGATIONS TO MAKE THE SERVICE CHARGE PROVIDED FOR ABOVE.