Terms and Conditions of Maintenance and Repair Services.
1. Parties to this Agreement; Definitions. As used in this Agreement, the terms: (a) “Capital” shall mean the Capital repair facility identified in the Service Authorization, estimate, work order, online request or other ordering document; (b) “Customer” shall mean the Customer identified in the Service Authorization, estimate, work order, online request or other ordering document; (c) “Manufacturer(s)” shall mean the entity or entities that manufactured the Parts used in the Services; (d) “Part(s)” shall mean the new and/or used parts, components, accessories or materials used in the Services; and (e) “Services” means the repair and/or maintenance services performed by Capital for Customer, together with the Parts.
2. WARRANTY DISCLAIMERS AND LIMITATIONS
LIMITED WARRANTY ON SERVICES: Capital warrants that the Services will be performed in a good and workmanlike manner (“Services Warranty”). The Services Warranty is valid for a period of 90 days from the date the Services are performed. Customer’s sole and exclusive remedy, and Capital’s entire liability under the Services Warranty, is the repair of any nonconforming portion of the Services. The Services Warranty is valid only if the instrument is returned, at Customer’s expense, to one of Capital’s repair facilities. Any claim for repairs to be performed by other than a Capital facility must be approved in writing by Capital prior to commencement of any work. The Services Warranty extends only to the Customer for whom the Services were provided and not any subsequent purchaser. CAPITAL PROVIDES NO OTHER WARRANTIES CONCERNING ITS SERVICES AND DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. CALIBRATIONS ARE NOT COVERED UNDER WARRANTY.
PARTS – MANUFACTURER WARRANTIES ONLY: Any warranties on any Parts are limited only to those written warranties provided by the applicable Part’s manufacturer. EXCEPT FOR ANY SUCH WARRANTIES MADE BY MANUFACTURERS, THE PARTS ARE SOLD WITHOUT ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EACH OF WHICH IS EXPRESSLY DISCLAIMED.
NO OTHER WARRANTIES: EXCEPT AS SET FORTH ABOVE, CAPITAL EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED. Capital neither assumes nor authorizes any other person to assume for it any liability in connection with the services or any parts provided to customer in conjunction with the services.
3. Rates; Authorization; Additional Repairs. Capital’s charges for labor are not based on actual technician’s time, but are established by multiplying Capital’s labor rate by industry time allowances or Capital’s own judgment of the time to be charged. If an estimate is provided, Customer will not be charged more than the estimated price approved by Customer. However, if Capital discovers that different or additional repairs are indicated, Customer will be contacted for authorization to make such additional repairs. Authorization may be given by Customer orally or in written form, including email. In the event that Customer authorizes commencement but does not authorize completion of a repair or service, a charge will be imposed for disassembly, reassembly, or partially completed work. Such charge will be directly related to the actual amount of technician’s time and/or parts involved in the inspection, repair, or service performed. Capital will submit warranty claims on behalf of Customer for manufacturers for whom it is authorized to perform warranty service; however Customer understands and agrees that it is responsible for full payment for any Services provided that are not covered by warranty. Capital is not responsible for any loss, damage, or other liability caused by, arising from, or related to repair or maintenance work recommended by Capital that is declined by Customer. Customer agrees that Capital employees may operate Customer’s instrument for purposes of facilitating the repairs, including but not limited to diagnosing, field testing, and sublet services.
4. OEM Parts. Customer acknowledges that estimates for non-warranty repairs may include parts not made by the original manufacturer. Parts used in the non-warranty repair of customer’s instrument by other than the original manufacturer are required to be at least equal in like kind and quality in terms of fit, quality and performance to the original manufacturer parts they are replacing.
5. Sublet Repairs. Customer acknowledges that portions of the repairs may be provided by a subcontractor hired by Capital and Customer hereby authorizes all sublet repairs that Capital, in its sole discretion, may deem necessary.
6. Damage; Loss. Capital is not responsible for loss of or damage to the instrument due to or arising from fire, weather, theft or any other cause except the sole negligence of Capital. Capital is not responsible for any loss accessories not listed in the service form.
7. Payment; Storage Fees. All charges for repairs including labor and materials furnished are due and payable simultaneously with the delivery of the within described instrument or prior to delivery upon the expiration of three (3) days after notice to Customer that the repairs have been completed. If the instrument described herein is not picked up within three (3) days after such notice is given, Capital may charge daily storage fees at rates that are ordinary and customary for the area, but not to exceed $50.00 per day or the maximum rate allowable by applicable law.
8. Technician’s Lien; Lien Sale; Collection. In addition to any and all other legal remedies available to Capital, Customer authorizes and acknowledges an express technician’s lien in favor of Capital on the instrument described herein for all charges for repairs, including labor and parts. Customer authorizes and acknowledges that if payment in full is not received within ten (10) days after Capital has notified the Customer that the repairs are completed: (i) Capital may, in accordance with applicable state law, begin lien sale proceedings and sell the instrument at public auction; and/or (ii) Capital may refer such account to its attorneys or a collection agency for collection.
9. Governing Law; Venue; Time to Commence Action. Except to the extent that the laws of the United States may apply or otherwise control this Agreement, the rights and obligations of the parties hereunder shall be governed by, and construed and interpreted in accordance with the laws of the state in which Capital is located, without regard to conflict of law principles. The mandatory venue for any claim, litigation, civil action, or any other legal or administrative proceeding (“Action”) involving any controversy or claim between or among the parties to this Agreement, is the county and state in which Capital is located. Customer has one (1) year from the accrual of any cause of action arising from the purchase of the Services to commence an Action against Capital.
10. LIMITATION OF DAMAGES. CUSTOMER AGREES THAT IN THE EVENT OF ANY ACTION BROUGHT BY CUSTOMER AGAINST CAPITAL, CUSTOMER SHALL NOT BE ENTITLED TO RECOVER ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES AS DEFINED IN THE UNIFORM COMMERCIAL CODE, INCLUDING, BUT NOT LIMITED TO INDIRECT OR SPECIAL DAMAGES, LOSS OF INCOME OR ANTICIPATED PROFITS, OR DOWN-TIME, OR ANY PUNITIVE DAMAGES.
11. Fees and Expenses of Actions. In any Action, whether initiated by Capital or Customer, where the Customer has a right, pursuant to statute, common law or otherwise, to recover reasonable attorneys’ fees and costs in the event it prevails, Customer agrees that Capital shall have the same right to recover reasonable attorneys’ fees and costs incurred in connection with the Action in the event that Capital prevails.
12. Waiver; Severability; Entire Agreement. No waiver of any term of this Agreement shall be valid unless it is in writing and signed by Capital’s authorized representative. If any provision or part of any provision of this Agreement shall be deemed to violate any applicable law or regulation, such invalid provision or part of a provision shall be inapplicable, BUT the remaining part of that provision and the remainder of the Agreement shall continue to be binding and enforceable. This Agreement constitutes the entire agreement and understanding between the parties hereto and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.