1. Acceptance and Entire Contract. All services (“services”) by CHESAPEAKE MISSION CRITICAL (“Seller”) on behalf of the purchaser named on the face hereof (“Buyer”) shall be subject to these Terms and Conditions (all such purchase terms and these Terms and Conditions collectively shall be hereafter referred to as the “Contract”), which shall constitute the entire Contract between the parties with respect to the services to be provided hereunder. If services are being supplied pursuant to Buyer’s purchase or work order, Seller’s acceptance of said purchase or work order is expressly conditioned on Buyer’s acceptance of these Terms and Conditions as the controlling terms of the Contract. Any of the provisions of Buyer’s purchase or work order which attempt to impose terms and conditions at variance with these Terms and Conditions shall not be binding on Seller and shall not be considered applicable to the services contemplated by this Contract. No modification of, or addition to, or waiver of any of these Terms and Conditions by Seller shall be effective unless agreed to in writing, by an officer of Seller, and in no event shall such modification, addition or waiver affect any rights of Seller accrued prior thereto. No course of prior dealings between the parties or usage of the trade shall be relevant to give particular meaning to or to supplement or qualify any of these Terms and Conditions. Notwithstanding any other provisions of this contract, this contract may be terminated by either party upon thirty (30) days written notice to the other party. If a lump-sum billed, multi-year contract is terminated the job will be billed for all services that were performed (before cancelation).  The difference will be credited back to the BUYER.

2. Delays. Any service completion date specified on the face hereof is approximate and is not a guarantee of a particular day of completion of the services to be performed hereunder. Under no circumstances shall Seller be liable for damages for any delay or failure to perform the services as scheduled if such delay or failure is occasioned in whole or in part by reason of force majeure; fire; flood; explosion; casualty; riot; civil commotion; strike, shortage of labor or other labor difficulty; transportation delay or car shortages; breakdown; accident; inability to secure materials, fuel, supplies, power, manufacturing facilities or shipping space; acts of God or of public enemy; existing or future regulations or actions of any governmental authority; acts of the Buyer; or any other causes or circumstances beyond Seller’s reasonable control or which Seller by reasonable diligence could not have avoided. Under such circumstances, Seller shall have the right to extend the date of delivery (which includes availability for delivery) for a reasonable period of time after the period of delay. Buyer shall not be relieved from the obligation to accept services at the agreed price when the causes interfering with the performance of services are removed. If services are to be performed in installments, delay in performing any portion of the services shall not relieve Buyer of its obligation to accept performance of the remaining services.

3. Limitation of Warranties. Seller warrants that all services performed under the terms of this Contract shall be free from defects in workmanship and will conform to the applicable drawings and specifications. Seller assumes no responsibility for any damage or injury to any persons or property, with respect to any services provided by Seller with respect to this contract (which may include installation and further related services), except as such damages or injury may be held to be the sole and direct result from or out of (a) any gross negligent performance by Seller of its obligations under the terms of this contract, or (b) any willful misconduct on the part of the Seller, its agents or employees. No agent, employee or representative of Seller has any authority to bind Seller to any affirmation, representation or warranty concerning the services, except an officer of Seller who agrees to the same in writing. In no event shall any affirmation, representation or warranty relating to the services be applicable to anyone other than Buyer, and no purchaser from Buyer is entitled to rely thereon.

4. Price. All prices stated on the face hereof will be maintained for services performed within thirty (30) days from the date of the Contract (“Price Maintenance Date”) unless extended by Seller at its sole option. Prices stated herein do not include installation, freight and handling charges, unless such item is specifically listed and priced in this Contract. If Seller is required to pay or collect any tax, excise, duty or levy, an additional charge will be made therefore to the Buyer, unless Buyer furnishes Seller with a proper exemption certificate.

5. Payment. Payment of all invoices is due within thirty (30) days from the date of the invoice. Payment to Seller by Buyer will not be contingent on third party payments to Buyer. Any payment not made when due shall be subject to a one- and one-half percent (1-1/2%) service charge per month which will be added to all balances past due, which is an annual rate of eighteen percent (18%). Buyer will be responsible for any collection and attorney’s fees incurred due to non-payment.

6. Buyer’s Credit. If the financial responsibility of Buyer shall become impaired or shall be deemed unsatisfactory by Seller for any reason, or if Buyer shall default under this Contract or any other contract with Seller, then, upon demand by Seller, Buyer shall provide satisfactory security or advance cash payment and performance of services may be withheld by Seller until such security or payment is received. In the event of Buyer’s bankruptcy, insolvency or assignment for the benefit of creditors; Buyer’s default in the payment of any indebtedness to Seller; or Buyer’s breach of any contract with Seller; then, and in any such event, all of Buyer’s outstanding indebtedness to Seller shall become immediately due and payable. Acceptance by Seller at any time of less than the full amount due Seller shall not be deemed to constitute a waiver of any of Seller’s rights hereunder.

7. Limitation of Buyer’s Remedies. Any claims of Buyer, including claims for damage, loss, shortage or delay, shall not be cause for the cancellation of this Contract. In the event that Buyer shall have any claim against Seller arising out of or relating to the services performed, or otherwise, Seller’s exclusive and sole liability shall be limited, at Seller’s option to either the return of the sales price of the services with respect to which the claim is made or the corrected performance of the services performed. Notwith-standing anything in this contract or otherwise to the contrary, Seller shall not be liable for any loss or damage, directly or indirectly, arising from the performance of services, or for incidental, special or consequential damages including, but not limited to, loss of anticipated profits, lost sales, goodwill, injury to person or property, or other economic loss in connection with or arising out of the existence of, the furnishing, functioning, or any services provided for in the contract, whether or not the possibility of damage was disclosed to Seller or could have been reasonably foreseen by Seller. Any action or remedy by Buyer arising out of this contract or any breach thereof must be commenced by Buyer within six (6) months after such cause of action shall have accrued.

8. Governing Law. This Contract shall be construed and enforced in accordance with the laws of the State of Maryland, exclusive of the Maryland conflicts of law rules. Any actions, claims or suits (whether in law or equity) arising out of or relating to this Contract, or the alleged breach thereof, shall be brought only in courts located in the State of Maryland and Buyer hereby waives its rights, if any, to bring such actions, claims or suits in any other courts. The parties hereby submit themselves to the jurisdiction of the courts located in the State of Maryland for the enforcement of this provision and for the enforcement of any judgment rendered by such courts. If any action, claim or suit is brought by Seller against Buyer hereunder and Buyer is not otherwise subject to service of process in the State of Maryland, Buyer agrees to and does hereby irrevocably appoint the Secretary of the State of Maryland as Buyer’s agent for the acceptance of service of process therein, and a copy of such process shall be mailed by Seller to Buyer at Buyer’s last known address.

9. Nonassignability. This Contract and its terms shall be binding upon and shall inure to the benefit of the parties hereto, their respective successors and assigns except that neither this Contract nor any interest or obligation hereunder shall be assignable or transferable by Buyer, in whole or in part, without the prior written consent of Seller.

10. Severability. If any provision or paragraph of this Contract is determined to be illegal or unenforceable, it shall not affect the enforceability of any other provision or paragraph of this Contract and the Contract shall be construed in all respects as if such invalid or unenforceable provisions were omitted.

11. Miscellaneous. There will be no scheduled maintenance performed on New Years, Easter, December 24th, 25th or 26th.  Preventive Maintenance obligations must be completed within thirty-days (30) of contract expiration date, failure to do so as a result of the “buyer” will result in a forfeit of service with no refund.

12. Term and Termination. Customer will be provided with written notice of renewal sixty (60) days prior to expiration, stating the prices for the applicable renewal term prior to each renewal date.  Notwithstanding the foregoing, either Customer or Contractor may terminate this Agreement at any time upon thirty (30) days written notices to the other, subject to provision 5 above.

Seller shall not be responsible for any failure to perform, or delay in performance of, its obligations resulting from the COVID-19 pandemic or any future epidemic, and Buyer shall not be entitled to any damages resulting thereof.

GENERAL CONDITIONS OF FACILITIES MAINTENANCE

1. Access to Work Area. Our Scope of Work is based on having proper access to working area, including required water and power for operation of necessary tools and equipment.

2. Performance Discretion. The time means and methods to be employed by Chesapeake Mission Critical (CMC) in the performance of this agreement are solely within CMC’s discretion unless specifically addressed in this agreement.

3. Work of Others. The Scope of Work identified herein shall be void if persons not in CMC’s employ have done adjustments, repairs or other work. CMC shall not be responsible for damages to or errors in any Equipment for which the Client has authorized service, operation, and/or modification by a party other than CMC. In the event of such an occurrence, and upon the Client’s request, CMC will inspect such Equipment and invoice, separate of any Full Service-related Agreement(s), for costs incurred to return such Equipment to industry standards, in accordance with CMC’s then current time and materials rates.

4. Preexisting Defects. Any pre-existing defect discovered during the first forty-five (45) days after signing of the contract will be considered a pre-existing condition and will be repaired on a time and material basis subject to the Client’s approval.

5. Seasonal Start-up. Units or components of units that are not operational due to the season and cannot be started or tested at the time of the start-up of this contract will be deferred until the seasonal start-up of the units has been completed at which time any defect discovered will then be considered a preexisting condition and repairs will be billed on a time and materials basis.

6. Improper Operation or Misuse. Acceptance of this Agreement in no way binds CMC to make corrections necessitated by improper operation, misuse of the equipment, or negligence of others, or to make corrections in design, or original installations of the Client’s equipment. This agreement shall be void if the included equipment, in CMC’s judgment, has been subject to misuse, negligence, accident, fire, lightning, improper power (including but not limited to under or over voltage, single phasing, reverse phasing), windstorm, vandalism or if the equipment has been tampered with, altered in any way or operated contrary to the manufacturer’s recommendation.

7. Normal Wear and Tear. The services to be performed under this Proposal are not a guarantee against obsolescence or normal wear. Where equipment becomes obsolete, beyond normal repair, or equipment parts become defective due to corrosion, or where factory replacement parts are no longer obtainable, replacement of such equipment or parts shall be made at the Client’s expense and if not so replaced, CMC shall no longer be required to service or maintain such equipment. The warranties and obligation set forth herein are in lieu of all other warranties and liabilities expressed or implied by law, or, in fact, including the implied warranties of merchantability and fitness for particular use.

EXCLUSIONS

Customer will be responsible for any price increase that Chesapeake Mission Critical (“CMC”) incurs as a result of any tariffs imposed on the equipment and materials reflected in its scope of work including any tariffs on any component parts of the equipment and materials.  In the event CMC incurs any such tariff-related price increase, Customer will issue a change order to CMC to adjust the contract price to reflect the tariff-related increase.

In addition, the following is a list of Exclusions that are not included, or a part of the Scope of Services offered herein this Proposal. There shall be no liability on the part of CMC to the Client to perform or incur cost as a result of any of the following:

Special Freight Charges; Circuit Breakers; UPS Capacitors; Identification or Handling/Disposal of Hazardous Materials; Disconnect Switches; Batteries; Telecommunications design, coordination or install provisioning; Procurement or Install of Specialized Computer Hardware; HVAC Compressors; Drip Pans; Pumps or Condensate Pumps; Air conditioning ductwork and insulation; Glass Repair or Replacement; Doors Repair or Replacement; Geotech services of any kind (i.e. test borings, test pits); Utility company fees; Payment and Performance or Material Bonds; Programming, Graphical Mods, or Interface Upgrades; Mandatory Federal, State, or local wage requirements.

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