(Updated 6-1-2023)

 

  1. GENERAL. These Terms and Conditions of Services (“Terms”) govern all warranty, repair, trouble shooting, and diagnostic services (“Services”) provided by George Holden & Associates, Inc. (“Provider”) to any end user or customer (“Customer”). If these Terms are first tendered to Customer before Customer tenders a purchase order or similar document to Provider, these Terms are in lieu of any terms later submitted by Customer, and Provider rejects all additional or different terms and conditions of Customer, whether confirmatory or otherwise.  If Provider tenders these terms after the tender by Customer of other terms, whether as part of a purchase order or otherwise, then Provider’s acceptance of any offer by Customer associated with Customer’s terms is expressly conditioned upon Customer’s acceptance of these Terms exclusively and to the exclusion of any proffered Customer terms or conditions, regardless of whether these Terms contain any terms additional to, or different from, any terms proffered by Customer.  Customer’s performance, or acceptance of, or payment for, any Services from Provider will constitute Customer’s acceptance of these Terms exclusively.  If there is a proposal, quotation or an executed written services agreement in effect between the parties (each a “Service Agreement”), these Terms form a part thereof.  The Service Agreement and these Terms shall collectively be referred to as the “Agreement”.  Waiver by Provider of any breach, remedy or provision of the Agreement shall not be construed to be a waiver of any succeeding breach or any other provision or legal remedy of Provider.
  2. WORKING HOURS. All Services shall be provided during Provider’s normal working hours unless otherwise agreed in writing between the parties.  Customer and Provider shall mutually agree on when Provider’s work on the project shall begin.
  3. CUSTOMER RESPONSIBILITIES. Customer shall: provide safe and reasonable access to the job site and equipment being serviced; provide a safe work environment; keep areas adjacent to equipment free of extraneous material; move any stock, fixtures, walls, partitions, ceilings, enclosures or such other property as may be necessary to perform the Services; promptly notify Provider of any unusual operating conditions; identify and label any asbestos containing material that may be present; operate any equipment supplied hereunder properly and in accordance with instructions; and remove and properly dispose of waste oil, refrigerant and any other material generated during the term of this Agreement.
  4. OCCUPATIONAL SAFETY AND HEALTH. Provider and Customer agree to notify each other immediately upon becoming aware of an inspection under, or any alleged violation of, the Occupational Safety and Health Act (“OSHA”) relating in any way to the performance of work under this Agreement, the project or the job site.
  5. PRICE AND PAYMENT. Payment shall be made within thirty (30) days from the date of invoice. Customer shall pay Provider any taxes or government charges arising from the Services. If Customer claims that any such taxes or government charges do not apply to the provision of the Services, Customer shall provide Provider with acceptable tax exemption certificates or other applicable documents. Customer may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with Provider, regardless of whether relating to Provider’s breach, bankruptcy or otherwise. Credit is extended at the sole discretion of Provider. Customer shall pay interest and service charges on overdue invoices from the due date until paid at a rate of 1.5% per month or the maximum legal rate, whichever is less, and any collection costs of Provider, including court costs and reasonable attorney fees.  NON-PAYMENT VOIDS ANY WARRANTY.
  6. PERFORMANCE AND EXCUSABLE DELAY. Provider shall not be liable for any expense, loss or damage resulting from delay in or prevention of performance caused by fires, floods, acts of God, strikes, labor disputes, labor shortages, lack of or inability to obtain materials, delays of manufacturers or vendors, fuels, supplies or equipment, riots, accidents, transportation delays, acts or failures to act of any government or of Customer, pandemics, plague, epidemic, public health crisis, disease and quarantines, travel bans, government recommendations and other employee restrictions related thereto or any other cause whatsoever, provided that such cause is beyond the reasonable control of Provider; and Provider shall have such additional time for performance as may be reasonably necessary under the circumstances and may adjust the price to reflect increases occasioned by such delay. Provider shall not be liable for and shall be entitled to receive from Customer all costs and expenses attributable to the acts or omissions of Customer or its contracting parties.
  7. LIMITED WARRANTY AND DISCLAIMERS. Provider warrants that all Service provided by Provider shall be performed in a workmanlike manner. In the event any such Service is determined to be defective within ninety (90) days of completion of that Service (“Warranty Period”), Provider shall as Customer’s sole and exclusive remedy re-perform or issue a credit for such Service. Provider does not warrant any products, parts or supplies (“Parts”) provided to Customer as part of the Services, but it does pass on to Customer any transferrable manufacturer warranties for those Parts. Any claims relating to the Parts shall be deemed waived by Customer unless submitted to Provider in writing within ten (10) days from the date Customer discovered, or should have discovered, the issue. EXCEPT FOR THE SPECIFIC WARRANTIES SET FORTH IN THIS SECTION, PROVIDER MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, REGARDING THE PARTS, WORK, SERVICES OR PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
  8. LIMITATION OF LAIBILITY. IN NO EVENT SHALL PROVIDER BE LIABLE TO CUSTOMER FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF DIRECT OR INDIRECT PROFITS, REVENUE, USE, OR BACK CHARGES, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF CUSTOMER OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY TO CUSTOMER EXCEED ALL AMOUNTS ACTUALLY PAID BY CUSTOMER TO PROVIDER FOR THE SERVICES.  PROVIDER SHALL NOT BE LIABLE FOR AND CUSTOMER AGREES TO INDEMNIFY PROVIDER FOR ALL PERSONAL INJURY, PROPERTY DAMAGE OR OTHER LIABILITY RESULTING IN WHOLE OR IN PART FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF CUSTOMER.  In no event shall Provider be liable or responsible for the actions or omissions of Customer, its other contractors or third parties outside of Provider’s control.
  9. CUSTOMER CANCELLATION/TERMINATION. Customer may cancel the Services only with Provider’s prior written consent, and upon payment of reasonable cancellation charges. Such charges shall take into account costs and expenses incurred, and purchases or contract commitments made by Provider and all other losses due to the cancellation including a reasonable profit.  Customer shall have the right to terminate this Agreement for Provider’s non-performance provided Provider fails to cure such non-performance within thirty (30) days after having been given prior written notice of the non-performance. Upon early termination or expiration of this Agreement, Provider shall have free access to enter the job site to disconnect and remove any Provider personal proprietary property or devices as well as remove any and all Provider-owned parts, tools and personal property. Additionally, Customer agrees to pay Provider for all incurred but unamortized service costs performed by Provider including overheads and a reasonable profit.
  10. PROVIDER TERMINATION. Provider reserves the right to discontinue any Service or terminate the Agreement any time by written notice to Customer if: (i) Customer is unable or refuses to make payment to Provider; (ii) Customer breaches any term of the Agreement and fails to cure such breach within thirty (30) days after having been given prior written notice of the breach; (iii) a receiver or trustee is appointed for any of Customer’s property; (iv) Customer is adjudicated or voluntarily becomes bankrupt or a debtor under any bankruptcy, dissolution or reorganization laws or similar law; (v) Customer becomes insolvent or makes an assignment for the benefit of creditors; or (vi) an execution is issued pursuant to a judgment rendered against Customer. If any order or the Agreement is terminated by Provider pursuant to this section, Provider shall be relieved of any further obligation to Customer and Customer shall reimburse Provider for its termination costs and expenses and a reasonable allowance for profit.
  11. CONTROLLING The Agreement shall be construed in accordance with the laws of the State of Georgia, without regard to its conflict of law principles. Customer agrees that any and all disputes with Provider, including contract and tort claims, shall be resolved in the state and federal courts situated in Georgia, and that these courts shall have the exclusive jurisdiction over all such disputes and Customer consents to the personal jurisdiction in these courts. Any action brought by Customer against Provider shall be within one (1) year after the cause of action arises or it shall be deemed forever waived.
  12. ADDITIONAL TERMS. The provisions of the Agreement, if any, constitute the entire agreement between Customer and Provider with respect to the matter contained herein and supersedes any prior oral or written communications, understanding, representations, proposals or agreements with respect to such subject matter. Provider may revise these Terms from time to time. The Agreement may not be amended or modified by the Customer except upon the execution of a written agreement signed by both parties indicating an intent to modify these Terms. Customer may not assign any of its rights or obligations hereunder or under any order. If any provision of these Terms or a Service Agreement is invalid, unenforceable or in conflict with any law, such provision shall be deemed severed from these Terms and/or the Sale Agreement and the validity of the remainder of these Terms and/or the Service Agreement shall not be affected thereby.  The provisions of the Agreement that by their nature are reasonably intended by the parties to survive the expiration or termination of the Agreement or any accepted order, shall survive the expiration or termination of the Agreement or any accepted order.