Maintenance Agreement Terms & Conditions

EXHIBIT B
PREVENTATIVE MAINTENANCE SERVICE PROGRAM TERMS AND CONDITIONS

Acceptance of Terms and Conditions: These Preventative Maintenance Service Program Terms and Conditions (“Terms and Conditions”) govern the purchase by the customer named in the Agreement (“Customer”) from [INSERT CONTRACTOR LEGAL NAME] (“PowerChampions”) of the Program Plan(s) described in the Agreement (collectively, “Maintenance Services”) and shall supersede any terms and conditions in any documents provided by Customer. Any offer by PowerChampions to provide the Maintenance Services is expressly conditioned upon Customer’s acceptance of these Terms and Conditions, and PowerChampions expressly rejects any terms or conditions provided or posted by Customer, at any time and in any manner, in relation to the Maintenance Services.

Services and Additional Services: The Agreement (including these Terms and Conditions) is strictly a maintenance agreement only. No provision of this Agreement shall be construed as a product repair and/or replacement warranty or a warranty of any other type. If PowerChampions determines that other work beyond the Maintenance Services is required, such work shall not constitute a part of the Maintenance Services, and PowerChampions will provide Customer with a quotation for such work.

Price and Payment: The price for the Maintenance Services is set forth in the Agreement. Payments are due within fifteen (15) days from the date of the invoice. Late payments will incur interest at the lesser of (a) the rate of 1.5% per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly, until paid in full. Customer shall reimburse PowerChampions for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees, costs, and expenses. If Customer disputes any portion of the invoice, Customer shall notify PowerChampions in writing of the basis of the dispute within five (5) days of receipt of the invoice. Amounts not disputed within five (5) days of receipt are deemed accepted. Customer shall pay all undisputed amounts when due. Payment of the invoice shall constitute full and final acceptance by Customer of the work performed and delivered by PowerChampions that is included in the invoice. All payments are nonrefundable. Payments shall be made as instructed on the invoice. PowerChampions reserves the right to suspend Maintenance Services without liability if any amount not disputed in good faith is not paid when due.

Term and Termination: The term of this Agreement shall be as set forth in the Agreement. Either party may terminate this Agreement for convenience by sending thirty (30) days prior written notice to the other party. PowerChampions may immediately terminate this Agreement for cause if Customer fails to comply with the Agreement (including these Terms and Conditions). Customer shall pay PowerChampions for all work completed prior to termination.

Limitation of Liability: PowerChampions shall not be liable for operation or failure of the equipment, its components, or any other part of the system, nor for injury to person or damage to property, except to the extent such injury or damage to property is caused by the grossly negligent acts of PowerChampions, and only to the proportionate extent attributable to PowerChampions’ gross negligence. WITHOUT LIMITING THE FOREGOING, POWERCHAMPIONS SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST TIME, LOST USE, LOST RENT, LOST PROFITS, LOST SALES, LOST GOODWILL OR BUSINESS REPUTATION OR DAMAGES TO PROPERTY) ARISING FROM TRANSACTIONS BETWEEN CUSTOMER AND POWERCHAMPIONS EVEN IF POWERCHAMPIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL POWERCHAMPIONS’ LIABILITY TO CUSTOMER FOR ANY DAMAGES ARISING OUT OF THE AGREEMENT (INCLUDING THESE TERMS AND CONDITIONS) OR THE MAINTENANCE SERVICES EXCEED THE PURCHASE PRICE PAID BY CUSTOMER TO POWERCHAMPIONS FOR MAINTENANCE SERVICES DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT POWERCHAMPIONS IS NOT THE MANUFACTURER OF THE EQUIPMENT AND SYSTEMS. NOTHING CONTAINED HEREIN SHALL BE CONSTRUED AS AN EXPRESS OR IMPLIED WARRANTY, PROMISE, OR GUARANTEE RELATING TO THE MATERIALS, PERFORMANCE, OR WORKMANSHIP OF THE EQUIPMENT, THE SYSTEM OR THE MAINTENANCE SERVICES.

Arbitration: In the event of any dispute, controversy or claim arising out of or relating to the Agreement (including these Terms and Conditions) or the Maintenance Services (collectively “Claims”), Customer and PowerChampions shall first attempt to resolve any such Claims by direct negotiation of the principals of each of the parties or a designee thereof. If direct negotiation fails to result in a resolution of such Claim, Customer and PowerChampions agree that mediation shall be a condition precedent to any further dispute resolution proceeding. Any Claims not resolved by mediation shall be resolved through binding arbitration according to the latest Construction Industry Arbitration Rules of the American Arbitration Association. IN SO AGREEING, THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO A JURY TRIAL, IF ANY, ON THESE ISSUES AND FURTHER AGREE THAT THE AWARD OF THE ARBITRATOR SHALL BE FINAL AND BINDING UPON THEM AS THOUGH RENDERED BY A COURT OF LAW AND SHALL BE ENFORCEABLE IN ANY COURT HAVING JURISDICTION OVER THE SAME. The prevailing party in any arbitration shall be entitled to recover its reasonable attorneys’ fees as part of the arbitration award. Any such mediation or arbitration shall be conducted in the city and state where the Maintenance Services were performed, or in such other location as the parties may mutually agree. CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY MEDIATION OR ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS ONLY, AND CUSTOMER EXPRESSLY WAIVES ANY RIGHT TO PARTICIPATE IN ANY CLASS ACTION.

Miscellaneous: This Agreement may be assigned by PowerChampions without notice to Customer. The Agreement shall be governed by the laws of the State in which the Maintenance Services were performed, without giving effect to the conflicts of law provisions of such State. Any waiver by a party of any rights or obligations under this Agreement must be in writing and signed by such party, and any such waiver shall not apply to any subsequent rights or obligations. If any provision of the Agreement (including these Terms and Conditions) is held to be invalid or unenforceable, the other provisions shall not be affected. PowerChampions shall not be liable for extraordinary events beyond its control, such as a war, strike, riot, crime, or an event that can be described as an act of God. The Agreement (which incorporates these Terms and Conditions) constitute the entire agreement between the parties relating to the Maintenance Services. Any amendment to the Agreement (including these Terms and Conditions) must be in writing and signed by PowerChampions.