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Home My WebLink About129918 M G E UPS SYSTEM - CONTRACT - CONTRACT - 16198 CAD SERVICEMRR 17 2003 11:17RM MGE 71443GO167 p.2 MGE UPS SYSTEMS formerly EPE Technologies, Inc SERVICE AGREEMENT This Agreement made and entered this I4 day of NDVLr. Lce 2002 ("Effective Date"), by and between MGE UPS SYSTEMS, INC. ("MGE") located at 1660 Scenic A��venyy�e, Costa Mesa, California 92626, and DC F6Yt CPUZAAA ("Subscriber"),P&UCt- befwkr+,"tlocated at Si �r &,ae e"!r 41RR--ea f. Ros a-) -- For and in consideration of the sum of S I2f0.cc(listed on the attached Equipment Schedule and/or Purchase Order), payable in advance for the initial annual period of this Agreement, MGE agrees that it will by its authorized representatives, inspect and maintain good operating condition of the equipment itemized on the attached schedule(s) by performing maintenance and inspection services and/or emergency services as specified on such schedule(s), upon receipt of telephonic notifications at its General Office in Costa Mesa or its duly authorized District Service Center. The schedule(s) attached hereto including the additional conditions thereof applicable to the equipment itemized are incorporated herein as part of this Agreement for an additional fee. Such equipment will be identified in subsequent schedule(s) to be attached hereto, showing the date on which service coverage will begin and the annual service fee for servicing the equipment. 2. Maintenance shall include periodic preventive maintenance and the frequency of preventive maintenance is estimated in the attached equipment schedule(s). MGE reserves the right, and may at its option, provide any required preventive maintenance at the time of an emergency service call or when convenient to the dispatch schedule of MGE. 3. Unless otherwise specified on the attached schedule(s), the Subscriber will pay the current list price, as determined by MGE, for any replacement parts needed in performing service on the equipment, with a minimum replacement parts charge of $25.00 per call for any replacement made. 4. It is understood and agreed that MGE assumes no responsibility whatsoever for the failure of equipment to perform the service for which it is intended. The Subscriber hereby agrees to indemnify and hold harmless MGE from any and all claims for loss or damage caused by the failure of such equipment to the extent such failure is not caused by MGE. 5. The Subscriber will be billed annually in advance. Any billings for less the an annual period will be prorated on a 365 days basis from the effective day of this Agreement If Subscriber fails to submit payment within thirty (30) days from issuance, MGE may, at its option, discontinue service. Discontinuance of service because of nonpayment does not relieve Subscriber's obligation to pay for services previously rendered. 6. Unless otherwise specified on attached schedule(s), the fee for service under this Agreement does not include: A. Service required as a result of abuse, misuse, acts of God, failure to follow user maintenance and operating instructions, and failure of interconnected equipment not maintained by MGE. B. Cost of material and/or service parts, spares or batteries. C. Damage cause by war, public disorder, fire, water, burglary, blasting, earth movement, and any other conditions beyond the control of MGE. D. Relocation of equipment, change in set up or original features and/or functions, or any major overhauls. E_ Federal, state or local sales, use, excise or other tax that may be levied or assessed upon any goods or service furnished under this Agreement Any such tax shall be paid by the Subscriber, and if by law MGE MRR 17 2003 11:18RM MGE 7144360167 p.3 is chargeable with collection or payment thereof, the same shall be added to the price specified in Section 1 of the Agreement. F. Costs of outside contractors or trade labor necessary to complete service due to local circumstances or customer requirements. G. Time spent by MGE field engineers or technicians, waiting for access to equipment if within a previously agreed to on -site time. H. Replacement of bearings on a motor -generator set. CHARGES FOR LABOR NOT INCLUDED IN THIS AGREEMENT WILL BE INVOICED AT A MINIMUM OF FOUR (4) HOURS AT THE THEN PREVAILING HOURLY LABOR RATE, PLUS TRAVEL EXPENSE, LISTED IN MGE UPS SYSTEM'S PRICE BOOK, AS AMENDED FROM TIME TO TIME. 7. The term of this Agreement shall be for a period of twelve (12) months ("Term"), commencing on the Effective Date first shown above, unless terminated earlier as provided below. Notwithstanding anything to the contrary in the foregoing sentence, this Agreement shall not be effective or binding on MGE until signed by the Customer Support Services Administrative Manager, the Director of CSS or an officer of MGE in Costa Mesa, California. S. This Agreement may be terminated immediately on written notice by either party (a) in the event the other party breaches any term of this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice thereof from the non -breaching party; (b) if the other party becomes insolvent; (c) upon the institution by the other parry ofirisolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of its debts; (d) following the institution of such proceedings against the other party, which proceedings are not dismissed or otherwise resolved in that party's favor within sixty days thereafter, (e) upon the other party's making a general assignment for the benefit of creditors, or (f) upon the other party s dissolution or ceasing to conduct business in the normal course. 9. The parties agree that MGE is not an insurer, that the payments required pursuant to this Agreement are based solely on the values of the services provided herein. The parties further agree that, from the nature of the services to be provided, it would be impracticable or extremely difficult to fix the actual damages, if any, which may result to Subscriber from a breach by MGE of this Agreement or from any failure by MGE to perform any of its obligations hereunder. Therefore, in the event this Agreement is terminated under Section 8 above due to a breach of this Agreement by MGE which breach retrains uncured for the period described therein, the parties agree that the liability of MGE for such breach and early termination shall be exclusively limited and fixed (as liquidated damages and not as a penalty) at the sum equal to the portion of the annual service fee paid hereunder by Subscriber for the period of time that would have remained under the Term but for said early termination. In the event a claim arises from the negligence or misconduct of MGE's employees or agents, MGE's entire liability for such claim shall be limited to proven direct damages not to exceed the annual service fee. MGE SHALL NOT BE LIABLE IN ANY EVENT FOR THE FOLLOWING TYPES OF DAMAGES: INCIDENTAL DAMAGES, PUNITIVE DAMAGES, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST SAVINGS OR LOST REVENUES OF ANY KIND WHETHER OR NOT MGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 10. MGE MAKES NO WARRANTIES UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT OR THE REPLACEMENT PARTS PROVIDED HEREUNDER. MGE EXCLUDES AND DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTBIIM AND ANY IMPLIED WARRANTY OF FITNESS OF THE EQUIPMENT AND OF ANY REPLACEMENT PARTS FOR ANY PARTICULAR OR INTENDED PURPOSE. 11. If any item under this Agreement is relocated, altered, or serviced by any person other than an MGE representative, MGE reserves the right before servicing, to inspect such equipment for damage resulting from such causes and to separately charge the Subscriber for any parts and labor required to make the repairs as deemed necessary for MGE. If the Subscriber refuses to allow such inspection and/or subsequent repairs, MGE may at its option without notice to the Subscriber, delete any such item of equipment from this Agreement. MRR 17 2003 11:18RM MGE 7144360167 p.4 12. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of MGE and the Subscriber. Neither this Agreement nor any right hereunder may be assigned by the Subscriber without the prior written consent of MGE, which consent shall not be unreasonably withheld_ This Agreement comYitutcs the entire Agreement of the parties hereto and supersedes all prior and contemporaneous agreements or representations of the parties hereto with respect to the subject matter of this Agreement The parties mutually agree that any action from breach of or upon a matter arising out of this Agreement must be commenced within one year after the cause of action accrues or it is forever barred 13. If for any reason any provision of this Agreement, or the application of such provision to any person or circumstances, or in any legal action, shall be found or held unenforceable or invalid in any State or other jurisdiction, such circumstances shall not have the effect of rendering the provision in question unenforceable or invalid as to any other person, circumstance, or:actiou and shall not affect any other term or provision of this Agreement to any extent whatsoever. 14. Subscriber's responsibilities include maintaining the temperature of the equipment room at or below 85 degrees F to ensure longer equipment life, controlling humidity so that there is no condensation, keeping the' area free of corrosive atmosphere that would affect equipment life, routine inspection and replacement of air filters, and keeping the area clean and clear of loose dirt and debris. 15. This Agreement shall be governed, interpreted and enforced under and by the Iaws of the State California without regard for the principles of the choice of law conflict. 16. At the same time that Subscriber returns this executed Service Agreement to MGE, Subscriber shall issue to MGE a Purchase Order in the amount of the total consideration required to be paid hereunder for the services to be provided under this Agreement. Failure to issue a Purchase Order, howtver, shall not relieve Subscriber from its obligations under this Agreement, including the obligation to pay MGE the consideration specified in this Agreement. Payment in full of the total amount owing, without offset or deduction, is due 30 days from the date of invoice, no cash discounts. MGE reserves the right to refuse to perform services for Subscriber (or delay the performance thereof) in the event Subscriber fails to comply with any of the terms and conditions set forth herein, in addition to pursuing any other rights or remedies MGE may have at law or in equity or otherwise. SUBSCRIBER ACCEPTANCE MGE ACCEPTANCE MGE UPS SYSTEMS INC. Name•• Name: Title: Title: r[ Signature: Si ature Date: Date: Z 1660 Scenic Avenue, Costa Mesa, CA (714) 557-1636