STANDARD TERMS AND CONDITIONS OF SALE

1. Scope.
These Terms and Conditions of Sale shall govern all sales of equipment and rendering of services by BranchServ to you (“Client”) unless a separate written agreement has been signed by the parties. These Terms and Conditions shall govern over any conflicting or inconsistent terms and conditions of Client, including but not limited to those contained in any purchase or work order, notice of objection to which is hereby given.
2. Equipment Sales, Installation, and Services.
BranchServ agrees to sell and install all equipment and to perform all services purchased by Client from BranchServ at BranchServ’s rates then in effect, at Client’s request pursuant to a purchase order, release or work order, at all Client branch locations agreed to by the parties.  BranchServ shall use all reasonable commercial efforts to complete the delivery and installation of each item of equipment and/or to perform the requested services by a mutually agreed upon date.  Client shall make available a place on its premises for installation of the equipment that meets the environmental, utility, load-bearing and other specifications set forth by the manufacturer.  BranchServ’s scope of work requires free and clear access to job site. BranchServ will make best efforts to comply with the order of priority requested by Client in which various portions of the work shall be performed or temporarily omitted, however, Client will be responsible for any additional cost associated with their request including labor, rental equipment and materials should their request be outside of intended installation sequence of BranchServ.  A remobilization or a work stoppage of more than 2 hours will require additional charges. Title to ordered equipment and any replacement parts shall vest in Client upon delivery by BranchServ, and title to any removed equipment and parts shall vest in BranchServ upon their removal from Client’s premises, unless Client specifies otherwise at the time of removal.  BranchServ may suspend any and all sales and installation of equipment or services hereunder if Client fails to make any timely payment of any amount due to BranchServ.
3. Taxes.
All taxes required to be collected by BranchServ or paid by Client directly, including but not limited to sales and use tax, excise tax, custom duties, and other such taxes and levies as may be assessed by local, state and federal governments within the appropriate jurisdiction, are the sole responsibility of Client. Client will reimburse BranchServ in full for any of the foregoing taxes or levies that are imposed on BranchServ. If Client asserts that any transaction is tax exempt, Client shall provide to BranchServ a tax or levy exemption acceptable to the taxing or levying authority in ADVANCE of installation or service.
4. Acceptance of Equipment and Replacement Parts. 
All equipment and replacement parts purchased by Client are subject to inspection and approval at Client’s facility or destination. Client reserves the right to reject and refuse acceptance of product which does not conform to the manufacturer’s specifications and Client shall have no obligation to pay for such nonconforming goods. Goods not accepted will be held for return instructions and returned to the manufacturer at BranchServ’s expense and risk of loss. Client assumes no liability for goods produced or shipped in excess of the quantity specified in the relevant purchase order or work order. Payment for any product shall not be deemed an acceptance. Client shall be deemed to have accepted each part or item of equipment unless Client has notified BranchServ in writing of its rejection within fifteen (15) days of delivery, or BranchServ’s completion of installation, whichever is later.
5. Force Majeure.
BranchServ shall not be liable to Client for any delay or failure by BranchServ to perform its obligations as agreed if such delay or failure arises from any cause beyond BranchServ’ s reasonable control, including, but not limited to, burglary, vandalism, fire, explosion, flood, war, riot, civil commotion, Acts of God, loss, abuse or usage of equipment or parts for purposes other than designed and/or intended, operator error, use of off-brand parts which cause equipment malfunction, failure of obsolete parts, or vehicular damage, pandemic, disease, governmental order or laws, and failure to access a facility because of building issues, whatever the reason, (each, a “Force Majeure Event”). BranchServ shall take all reasonable action to notify Client about and minimize the effects of a delay or failure on Client caused by a Force Majeure Event. If a Force Majeure Event delays the performance of BranchServ for thirty (30) days or more, Client shall have the right to terminate its Agreement upon written notice at any time before performance resumes.
6. Insurance.
BranchServ shall maintain or cause to be maintained at its sole expense the following minimum insurance coverage. At Client’s written request, such policies shall name Client as additional insured or loss payee, and BranchServ shall provide Client with certificates of insurance verifying the existence of such coverage prior to providing services hereunder and shall report to Client any material changes in coverage.

  1. Commercial General Liability insurance, including coverage for contractual Products/Completed Operations and Independent Contractors Liability with a combined single limit of at least $1,000,000.00 for bodily injury and/or property damage per occurrence with a minimum policy aggregate of $1,000,000.00.
  2. Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance with a limit of not less than $1,000,000.00 per occurrence.
  3. Fidelity third party bond coverage (including off-premise coverage) of all employees providing Services to Client under Agreement in an amount of not less than $300,000.00.
  4. Client shall maintain or cause to be maintained at its sole expense during the term of Agreement Commercial General Liability insurance with a combined single limit of at least $1,000,000.00 for bodily injury and/or property damage per occurrence with a minimum policy aggregate of $2,000,000.00. It is expressly understood and agreed by Client that no insurance company, insurer or bonding company or their successors or assigns shall have any rights created by a loan agreement, loan receipt or like document or procedure or any right of subrogation against BranchServ or its Related Parties.
7. Access and Permits.
For the purpose of installation, inspection, repairs, maintenance or removal, access to the equipment, and ingress and egress to the premises with respect thereto, will be available at all reasonable times to the properly authorized representatives of BranchServ. BranchServ agrees to comply with all Client security policies and procedures of which it is advised by Client in advance. Client agrees to provide a safe working environment. Client shall make available a place on its premises for installation of the equipment that meets the environmental, utility, and other specifications set forth by the manufacturer or in a schedule provided to BranchServ.

Free and clear access: Client to provide free and clear access to BranchServ upon arrival to job site and allow BranchServ to efficiently perform the installation and or service to the methods determined by the BranchServ manager.

Permits: BranchServ is NOT responsible for obtaining or the cost to secure state or local permits, inspections and assessments relating to their scope of work including equipment installation. Unless otherwise agreed to in writing in advance, permits are the sole responsibility of the Client and if necessary must be obtained before BranchServ is scheduled to perform work.
8. Warranties and Disclaimers; Limitation on Liability.
BranchServ makes the following warranties:

  1. Any warranty for equipment installed by BranchServ is provided by the manufacturer and not BranchServ. To the extent permissible thereunder, BranchServ shall pass-through any warranty provided by the manufacturer to Client.
  2. Equipment warranty is referenced in the purchase contract. For a period referenced in the BranchServ Equipment Schedule/addendum from the date that original equipment is installed and commissioned by BranchServ for Client’s use, BranchServ warrants that all labor performed during such installation has been performed in a diligent and workmanlike manner. 
  3. For a period of thirty (30) days following any service or repair, BranchServ further warrants that all replacement parts installed by it shall be free from any material defects and conform to manufacturer’s specifications, and that all labor during such service or repair has been performed in a diligent and workmanlike manner.
  4. With respect to maintenance and repair services provided for an annual service fee, BranchServ warrants that all labor will be performed in accordance with the description of the plan(s) selected by Client in the Maintenance and Repair Services Schedule and in a diligent and workmanlike manner.

BranchServ’ s sole liability and Client’s sole remedy under the warranties provided above shall be free re-performance of services and free replacement or repair (at BranchServ’s option) of the equipment as may be required to substantially conform the equipment or services to the warranties provided above.

IT IS UNDERSTOOD AND AGREED BY THE PARTIES THAT BRANCHSERV AND ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, LEGAL REPRESENTATIVES, AFFILIATES AND SUBCONTRACTORS (COLLECTIVELY, “RELATED PARTIES”) ARE NOT INSURERS AND THAT INSURANCE, IF ANY, COVERING PERSONAL INJURY AND PROPERTY LOSS OR DAMAGE ON ANY PREMISES OF CLIENT SHALL BE OBTAINED BY CLIENT.   THE SYSTEM AND SERVICES TO BE PROVIDED BY BRANCHSERV ARE DESIGNED TO LESSEN, BUT NOT ELIMINATE, THE RISK OF LOSS AND BRANCHSERV AND THE RELATED PARTIES ARE NOT GUARANTYING THAT NO LOSS WILL OCCUR. 
9. Confidentiality.

The parties acknowledge and agree that, in the course of executing their Agreement, each party may be provided with or gain access to information, in verbal or written form, that is proprietary and confidential to the other party and that the other party designates in writing as confidential (“Confidential Information”).  For the purposes of this provision, each party will be deemed to be the “Recipient” with respect to Confidential Information it receives from the other party, and the “Discloser” with regard to Confidential Information it discloses to the other party.  Recipient shall employ the same degree of care in preventing the disclosure of the Confidential Information to any third party as it uses with regard to its own Confidential Information, provided however, that in no event shall Recipient employ less than a reasonable degree of care.  Except as may be required by applicable law, Recipient may use Confidential Information only for purposes contemplated hereunder, and may disclose Confidential Information only to employees, subcontractors and agents who have acknowledged their legal obligation to maintain the confidentiality thereof.  Confidential Information shall not include, and neither party shall have any obligation of confidentiality with respect to, information that (a) is in or comes into the public domain (except as result of a breach of this provision); (b) is received by Recipient from a third party not under an obligation of confidentiality with respect thereto; or (c) is independently developed by the Recipient’s personnel who have not had access to the information of the Discloser.  In the event of the service upon Recipient of any subpoena, request for production or other legal process seeking the disclosure of any Confidential Information, Recipient shall promptly notify Discloser of such service in writing.

In addition to any other rights or remedies a party may have hereunder or in law, since unauthorized use or disclosure of Confidential Information may result in immediate and irreparable injury to a Discloser for which monetary damages may not be adequate, in the event that Recipient or any officer, director, employee, agent or subcontractor of Recipient uses or discloses, or is likely to use or disclose, any of Discloser’s Confidential Information in breach of Recipient’s obligations hereunder, Discloser shall be entitled to equitable relief, including temporary and permanent injunctive relief, without posting a bond with respect thereto.

To the extent that BranchServ receives nonpublic personal information from Client that is protected under the Gramm-Leach-Bliley Financial Modernization Act of 1999 or Regulation P of The Federal Reserve Board, BranchServ agrees to faithfully observe its obligations as such a recipient under said Act or Regulation.
10. Title.
Title to ordered equipment and any replacement parts shall vest in Client upon delivery to its premises, and title to any removed equipment and parts shall vest in BranchServ upon their removal from Client’s premises, unless Client specifies otherwise at the time of removal.
11. Audit.
Subject to the obligations of confidentiality that BranchServ owes to any third party, and to the extent reasonably necessary to the performance of Client’s audit functions or to Client’s cooperation with regulatory authorities, BranchServ shall allow Client or an accounting firm that it designates, at Client’s expense, to examine BranchServ’s operations and financial records, pursuant to reasonable written notice, at reasonable times and the minimum necessary disruption to such operations.
12. Assignment.
Neither party may assign its rights or obligations hereunder in part or in whole without Client’s prior written consent, which shall not unreasonably be withheld or delayed. These Terms and Conditions shall inure to the benefit of the parties hereto, and their permitted successors and assigns.
13. Waiver.
The failure of either party to enforce at any time the provisions of these Terms and Conditions, to exercise any election or option provided herein, or to require at any time the performance by the other party of any provisions herein will not in any way be construed to be a waiver of such provisions.
14. Notices.
Any notice required hereunder shall be in writing and shall be sent to the individuals designated by the parties. Notices shall be effective when received and shall be sent via confirmed email or facsimile, by certified mail, return receipt requested, or by a national overnight carrier service.
15. Entire Document.
This documentation of the Terms and Conditions represents the entire understanding between the parties regarding its subject matter and supersedes all prior oral and written communications. They may not be altered except by a written agreement signed by authorized representatives of both parties.
16. Enforceability.
If any provision of these Terms and Conditions shall be held to be invalid, illegal or unenforceable, the parties agree that the remaining provisions shall not be affected.
17. Governing Law.
These Terms and Conditions shall be construed and interpreted according to the laws of the state of Connecticut without reference to conflict of laws principles.

www.convergint.com         BranchServ and Custom Vault are trade names of Convergint Technologies LLC