TERMS AND CONDITIONS

1. Services.

The “Services” to be performed are described on the provided verbal or written quotations and referenced Exhibit(s). Services will be performed in a professional and workmanlike manner. Customer recognizes that FES’s quotes are estimates and based on an initial evaluation of the equipment and information provided by Customer. Customer acknowledges that as FES begins the repair and/or restorative Services contemplated by this Agreement that the scope of work and estimate may change whereupon it will inform Customer accordingly. At that time, Customer will be provided with a revised verbal or written estimate, upon which customer will have three days to refuse the additional hours and/or material. Customer understands and agrees that it will be responsible for paying for the services on a time and materials basis even if such amount exceeds the initial estimate or any revised estimate. Upon review and inspection of the equipment, FES reserves the right to cancel the services in which case it will notify customer in writing of same and customer must retrieve equipment at its cost. In such event, Customer will be responsible for all costs expended through the effective date of termination (on the same Time and Materials basis) including subcontract services as well as parts, components ordered or fabricated but not yet received or installed.

2. Location of Services.

Services will be performed at the FES facility, customers workshop or worksite that is identified on the provided quotation, or any place that FES deems necessary to carry out the Service. Customer shall be responsible for all transportation and insurance costs to ship the equipment to FES’s facility and back to Customer.

3. Fees.

Fees for the services will be charged to Customer on a time and materials basis as follows:

• Service labor charges will be billed to Customer at the rate(s) listed hereinabove based upon the actual hours worked by a FES technician or subcontractor as may be required to complete the scope of work.
• Parts, equipment components, fabricated items and subcontracted services shall be billed to Customer at FES’s standard prices or as listed within the initial Estimate or any subsequently revised Estimate.
• Customer shall be responsible for all sales, use and any other taxes of any kind that might apply or might be assessed now or later in connection with the Services, unless Customer provides a tax-exempt certificate in a form acceptable to Foundation Equipment Services.

4. Payments.

Payment shall be due upon agreed terms of payment. Customer also agrees to pay actual cost of collection, including reasonable attorney’s fees and court costs. Payments should be mailed to Foundation Equipment Services’s office at 12620 Beach Blvd Ste3-274 Jacksonville, FL 32246 or remitted via wire transfer to its bank. Customer agrees if payments are not paid within terms after issuance of an invoice, Customer will pay interest, at 1% per month or 12.0% per annum, compounded monthly, or the maximum amount provided for by law, from the due date until payment is received. Upon completion of the Services, FES will contact Customer. Unless mutually agree otherwise, Customer shall have thirty (30) days to pay the outstanding balance due and pick up the Equipment. If Customer fails to pick up the Equipment within such thirty (30) day period, Customer will be charged a storage fee of $750.00 per month and such other disposition fees FES may incur in exercising its remedies provided herein.

5. Force Majeure.

Neither party will be liable for any delay in performing an obligation under this Agreement that is due to causes beyond its reasonable control, such as natural catastrophes, pandemic, supply shortages, labor shortages or governmental acts or omissions (“Force Majeure Events”) provided that the non-performing party promptly informs the other party of the occurrence of any of the Force Majeure Events. In the event FES’s ability to provide the Services hereunder is materially affected by any of the Force Majeure Events for more than thirty (30) days, FES may terminate this Agreement without penalty or liability upon written notice to Customer.

6. Timing.

Foundation Equipment Services is never liable for any damages that are related to delivery times.

6. Transportation.

Customer is responsible for arranging for transportation, and for transporting, the Equipment to FES’s repair/restoration facility and for retrieving the Equipment upon the completion of any services or the termination of the agreement, whichever first occurs.

7. Insurance/Indemnification.

Customer agrees that it will maintain insurance to cover the full value of the Equipment for all risk of loss or damage, from the time it delivers possession of the Equipment to FES and until such time it retakes possession (or it is otherwise disposed by us pursuant to our rights herein). Customer shall also protect, indemnify and hold Foundation Equipment Services, Inc. and its affiliates, subsidiaries and related companies and each of their respective owners, officers, directors, employees, attorneys and agents, harmless from and against any claim from third parties, for death or injury to a person or to property arising out of the Services, and/or any condition of, or the possession, control or use of, the Equipment, except to the extent any such claim is directly caused exclusively by the gross negligence or sole misconduct of Foundation Equipment Services, Inc.

8. LIMITED WARRANTY.

Customer understands and agrees that Foundation Equipment Services does not extend any warranty to Customer. The customer understands that the state of the machine is not in Foundation Equipment Services’ control. THIS LIMITED WARRANTY IS EXPRESSLY IN LIEU OF AND EXCLUDES ALL WARRANTIES WITH RESPECT TO THE SERVICES, EXPRESS OR IMPLIED (INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) AND ALL OTHER OBLIGATIONS OR LIABILITY ON FOUNDATION EQUIPMENT SERVICES’S PART. FOUNDATION EQUIPMENT SERVICES MAKES NO GUARANTY AS TO THE CONDITION OF THE EQUIPMENT AFTER THE SERVICES ARE PERFORMED OR THE LENGTH OF TIME OR USE THE EQUIPMENT WILL PROVIDE.

FES neither assumes nor authorizes any other person to assume for it any other liability in connection with the Service. No action by Customer or FES shall operate to extend or revive this limited warranty without the prior written consent of Foundation Equipment Services.

9. LIMITATION OF LIABILITY.

IN NO EVENT SHALL FOUNDATION EQUIPMENT SERVICES BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE OF THE EQUIPMENT, OR LOSS OF PROFIT ATTRIBUTABLE TO THE USE OF THE EQUIPMENT OR DIMINUTION IN VALUE OF THE EQUIPMENT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT FOUNDATION EQUIPMENT SERVICES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL FOUNDATION EQUIPMENT SERVICES’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR THE SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO FOUNDATION EQUIPMENT SERVICES FOR THE SERVICES (AND FOR CLARIFICATION THIS LIMIT SHALL ONLY INCLUDE PAYMENTS MADE TO FOUNDATION EQUIPMENT SERVICES FOR THE SERVICES AS PART OF A RESTORATION PROJECT UNDER THIS AGREEMENT AND SHALL NOT INCLUDE PAYMENTS MADE TO FOUNDATION EQUIPMENT SERVICES FOR ANY OTHER REASON DURING SUCH TIME PERIOD) OVER THE TWELVE (12) MONTHS PRECEDING THE DATE OF ANY CLAIM, AND SHALL ONLY APPLY IF THE DAMAGES RESULT FROM WILFULL MISCONDUCT BY FOUNDATION EQUIPMENT SERVICES.

10. Term.

The term of this Agreement shall commence on the date last signed by the parties and shall expire after the Services are completed. Those provisions set forth in this Agreement which by their nature require performance after the termination of this Agreement shall continue to be binding until fully performed.

11. Termination Of Agreement.

Either party may terminate this Agreement at any time, by written notice, if the other party seeks protection under any bankruptcy, receivership, creditors’ arrangement, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within forty-five (45) days. Notwithstanding the foregoing, in the event of Customer’s non-payment, or in the event FES becomes concerned of Customer’s inability to pay for the balance due upon the completion of Services, FES may stop work on the Services until Customer has paid any outstanding amount due and/or made arrangements with FES to alleviate any such concern. Upon termination of this Agreement, Customer shall be required to (a) pay FES for all work done through the effective date of termination including any outstanding amounts due, and (b) take possession of the Equipment promptly at Customer’s cost. Customer shall be required to make arrangements with FES to take possession of the Equipment within seven (7) days of the termination of this Agreement.

12. Remedies.

In order to secure payment for the Services, Foundation Equipment Services shall retain all lien rights under Florida law, and the law of any state in which any Services are performed, with respect to the furnishing of labor and/or materials in connection with the Services. In addition, to secure payment for the Services, Customer agrees to grant FES a security interest in the Equipment. FES shall have all the rights of a secured party under the Uniform Commercial Code as enacted in Florida. Customer shall execute any and all documents, forms, and other instruments deemed necessary by FES to perfect such security interest and Customer shall be responsible for payment of all costs and fees associated with the execution and/or filing of such documents. In addition, Foundation Equipment Services has the right to retain the Equipment until all amounts due, whether arising out of this contract, another contract or tort, from customer to Foundation Equipment Services, are paid in full. No right or remedy conferred herein is exclusive of any other right or remedy conferred herein or by law; but all such remedies are cumulative of every other right or remedy conferred hereunder or at law or in equity, by such statute or otherwise, and may be exercised concurrently or separately from time to time. If due to Customer’s default, FES must dispose of the Equipment, Customer shall be responsible for all costs of such disposition, which may include, but not be limited to, costs of transportation, storage, advertising, attorneys’ fees and broker’s fees. FES’s remedies for Customer’s default may also include any other remedy available to FES at law or in equity.

13. Entire Agreement.

These terms and conditions form the entire agreement between Foundation Equipment Services and the customer. These supersede any other terms and conditions of Customer’s proposal and acknowledgment forms. These terms and conditions govern the entire contractual relationship between Foundation Equipment Services and the customer, present or future, even if these terms and conditions are accompanied by a particular verbal or written quotation.

14. Binding Effect/Entire Agreement/Choice of Law.

Customer represents that it has all necessary right and authority to enter into this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties, their successors, legal representatives, and permitted assigns. This is the entire agreement between the parties. This Agreement, and any disputes arising from or related to this Agreement, will be governed by the laws of the State of Florida.

15. Litigation Venue/Choice of Forum.

It is hereby agreed that the place of the making of this Services Agreement shall be deemed to be Duval County, Jacksonville, FL and that any legal proceedings brought to determine the validity, construction, breach, interpretation or enforcement of the Service Agreement shall be instituted and maintained in only the Circuit Court for Duval County, Florida.