SERVICE TERMS AND CONDITIONS OF SALE

 

  1. Acceptance. These Service Terms and Conditions (these “Terms”) are the only terms that govern the provision of Services (as defined below) by Encore Repair Services, LLC (“Encore”), to the client (“Client”) named on the applicable quotation, proposal, order acknowledgement or confirmation, invoice, or other document referencing these Terms (each, a “Transaction Document,” and a Transaction Document together with these Terms, this “Agreement”). For purposes hereof, the term “Services” shall mean the services described in the applicable Transaction Document as confirmed by Encore.  No order issued by Client will be binding upon Encore unless accepted in writing by Encore, and then will be solely governed by these Terms except to the extent explicitly agreed to by Encore in such acceptance.
  2. No Conflicting or Additional Terms. This Agreement constitutes the entire agreement between Encore and Client with respect to the subject matter hereof, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. There are no warranties, agreements, or understandings, either express or implied, affecting it, except as set forth in these Terms or on the face or back of the applicable Transaction Document or on an attachment thereto. The terms of this Agreement expressly exclude and prevail over any of Client’s general terms and conditions contained in any documentation issued by Client, including, without limitation, any terms referenced or included in any order issued by Client. Encore expressly rejects any and all additional or contradictory terms specified in any order, email, acknowledgment, confirmation, or other document supplied by Client pertaining to the Services or this Agreement.
  3. Pricing. The prices for the Services shall be as set forth with the terms printed on the applicable Transaction Document, as confirmed by Encore.  Client shall be responsible for any and all taxes, duties, fees, or charges of any nature whatsoever imposed by any governmental authority on or measured by any transaction between Client and Encore (other than taxes on or measured by Encore’s net income). If Encore is required to pay any such tax, duty, fee, or charge, Client shall promptly reimburse Encore for the same.
  4. Payment. Client shall pay Encore for the Services in accordance with the terms printed on the applicable Transaction Document, without offset or deduction. If payment terms are not set forth on an applicable Transaction Document, payment is due in full within thirty (30) days of invoice, without discount, and Encore may issue invoices upon the completion of any Service or deliverable, or portion thereof. Overdue payments will bear interest at a rate of one and one-half percent (1.5%) per month, or the highest rate permitted by applicable law, from the date due until paid. Notwithstanding the foregoing, in the event that Client fails to make any timely payment required under this Agreement, Encore may, in Encore’s sole and absolute discretion and without limiting any other rights or remedies available to Encore: (a) suspend or defer the Services (including Services under open orders) until such failure is remedied; and/or (b) change the payment terms to cash in advance. Client shall pay all collection fees, including attorneys’ fees, incurred by Encore in connection with attempting to collect on any and all outstanding amounts due and owed to Encore.
  5. Cancellation. Client may not cancel an order once such order has been accepted by Encore without Encore’s express consent. Encore may cancel any order or Transaction Document at any time in its sole discretion without liability.
  6. Performance of Services. Encore shall use reasonable efforts to meet any performance dates to render the Services specified in this Agreement, and any such dates will be estimates only. Client shall cooperate with Encore in all matters relating to the Service Client represents and warrants that it has duly executed any and all Transaction Documents to which it is a party, and that any and all information provided to Encore in connection with Encore’s performance of the Services shall be true and correct. Client shall comply with all applicable laws, regulations, and ordinances and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. If Encore’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees (including a breach by Client of any of its representations, warranties, covenants or agreements contained in this Agreement), Encore shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
  7. Intellectual Property. All intellectual property rights in and to the Services and all portions thereof, and in and to any other materials or deliverables that are delivered to Client in connection with this Agreement or prepared by or on behalf of Encore in connection with this Agreement, will be and remain the exclusive property of Encore. No license, transfer, or assignment of proprietary rights will occur as a result of this Agreement.
  8. Confidentiality. If Client and Encore are parties to a confidentiality and/or non-disclosure agreement, the terms of such agreement are incorporated herein by this reference and will control the disclosure of any confidential or proprietary information between the parties. If Client and Encore are not parties to such an agreement, then without Encore’s prior written consent, Client shall not at any time disclose or allow to be accessed any confidential, non-public, or proprietary information acquired by Client through or in connection with this Agreement, and may only use such information for the purpose of performing under this Agreement. Such information includes, without limitation, Encore’s specifications, deliverables, designs, plans, documents, data, business operations information, pricing, discounts or rebates, information about Encore’s relations with its employees or its manner of operation, inventions, processes, and trade secrets, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential.” This Section does not apply to information that is: (a) in the public domain; (b) known to Client at the time of disclosure; or (c) rightfully obtained by Client on a non-confidential basis from a third party. Client acknowledges and agrees that any breach of this Section 8 will cause injury to Encore for which money damages would be an inadequate remedy and that, in addition to remedies at law, Encore is entitled to equitable relief as a remedy for any such breach.
  9. Limited Warranty; Exclusive Remedy; Disclaimer.
    • Limited Warranty. Encore warrants to Client that it shall perform the Services in accordance with generally recognized industry standards (the foregoing limited warranties are hereinafter collectively referred to as the “Warranty”). The Warranty will expire three (3) months after the provision of the applicable Service.
    • Exclusive Remedy. If a Service does not comply with the Warranty and a claim is made by Client within the applicable Warranty period, Encore shall, at the option of Encore, either re-perform any and all defective Services free of charge, or grant to Client a credit in an amount equal to the purchase price of the applicable Services. THE REMEDIES SET FORTH IN THIS SECTION 9(b) WILL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND ENCORE’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTY.
    • Third Party Products. To the extent any products manufactured by a third party (“Third-Party Products”) may be contained or incorporated in any Services, such Third-Party Products are not covered by the Warranty and are provided “as is”; provided, however, that to the extent Encore is the recipient of warranties from such third party and such warranties are freely assignable by Encore to Client, upon Client’s request therefor, Encore agrees to use commercially reasonable efforts to assign such warranties to Client and/or otherwise use commercially reasonable efforts to assist Client in connection with any claims under such warranties.
    • Disclaimer. THE WARRANTY IS THE ENTIRE AND EXCLUSIVE WARRANTY REGARDING THE SERVICES AND IS IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATIONS OR WARRANTIES AS TO ANY THIRD-PARTY PRODUCTS AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. Encore shall not be liable for a breach of the Warranty unless: (i) Client gives Encore written notice of the defective Services, reasonably described, within five (5) days of the time when Client discovers or ought to have discovered the defect; (ii) Encore is given a reasonable opportunity after receiving the notice of breach of the Warranty to determine whether the Services are defective as claimed; and (iii) Encore reasonably verifies Client’s claim that the Services are defective.
  10. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN ANY OTHER AGREEMENT OR DOCUMENT, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF THE REMEDIES SET FORTH HEREIN: (a) ENCORE SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS OR LABOR COSTS, ARISING FROM THE PROVISION OR USE OF THE SERVICES, FROM ANY BREACH OF THIS AGREEMENT, OR FROM ANY OTHER CAUSE WHATSOEVER, REGARDLESS OF WHETHER THE CLAIM GIVING RISE TO SUCH DAMAGES IS BASED UPON BREACH OF WARRANTY (EXPRESSED OR IMPLIED), BREACH OF CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, EVEN IF ENCORE HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND (b) Encore’S TOTAL AGGREGATE LIABILITY to CLIENT for ANY and all DAMages arising out of or relating to thIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY CLIENT TO Encore PURSUANT TO THE APPLICABLE TRANSACTION DOCUMENT.
  11. Indemnification. Client shall indemnify, defend, and hold Encore, its affiliates, and its and their respective directors, officers, employees, agents, successors, and assigns harmless from and against any and all damages, liabilities, losses, obligations, judgments, costs, and expenses (including, without limitation, attorneys’ fees) arising out of or in connection with: (a) Client’s breach of this Agreement; (b) Client’s failure to comply with any law or regulation; (c) Client’s negligent or more culpable acts or omissions; (d) Client’s use of the Services in any manner not specifically authorized by Encore in writing; or (e) claims, suits, or proceedings brought against Encore alleging that the Services constitute a misappropriation or infringement of any patent, copyright, trademark, or trade secret, or any other proprietary rights of any third party and such claim, suit, or proceeding is based upon, or would have been avoided but for, Encore’s compliance with any specifications or instructions regarding the Services provided by Client.
  12. Insurance. During the term of this Agreement and for two (2) years thereafter, Client shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000. Client will provide Encore with a certificate of insurance evidencing the insurance coverage required hereunder upon Encore’s request.
  13. Force Majeure. Notwithstanding anything to the contrary contained herein, Encore shall not be liable or responsible, nor be deemed to have defaulted under or breached this Agreement, for any whole or partial failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from, in whole or in part, acts, events or circumstances beyond Encore’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic, quarantine, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances (whether or not such events are within the reasonable control of Encore); (h) shortage of adequate power or transportation facilities or materials (whether or not such events are within the reasonable control of Encore); (i) equipment malfunction or downtime; and (j) unforeseen capacity constraints.
  14. Termination. In addition to any remedies that may be provided under these Terms, Encore may terminate this Agreement, in whole or in part, with immediate effect upon written notice to Client, if Client: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. In addition, Encore may terminate this Agreement, in whole or in part, at any time upon thirty (30) days’ written notice to Client.
  15. Miscellaneous. This Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and permitted assigns. Neither party may assign, delegate or transfer, in whole or in part, this Agreement or its respective rights or obligations hereunder without the prior written consent of the other party; provided, however, that Encore may freely assign this Agreement or its respective rights or obligations hereunder to one or more of its affiliates in its sole discretion.  Client and Encore are independent contractors, and neither party has nor will have any power, nor represent that it has any power, to bind the other party or to create any obligation or responsibility, express or implied, on behalf of the other party, or in the other party’s name. This Agreement will be governed by the laws of the State of Illinois, without regard to its conflicts of law principles. The UN Convention on the International Sale of Goods of 1980 does not apply to this Agreement. In the event of a dispute involving this Agreement, any legal proceeding must be heard and determined exclusively in an Illinois state court or a federal court sitting in Cook County, Chicago. Client irrevocably: (a) submits to the exclusive jurisdiction of such courts; (b) waives any objection to venue, including on the ground of forum non conveniens, to bringing a legal action in such courts; and (c) agrees not to bring any legal action relating to this Agreement except within the State of Illinois. No waiver of a breach of this Agreement will constitute a waiver of any other breach in any other situation, including any similar situation. No waiver will be effective against Encore unless in a writing hand-signed by an officer of Encore. No remedy made available to Encore by any of the provisions of this Agreement is intended to be exclusive of any other remedy, and each and every remedy will be cumulative and in addition to every other remedy. This Agreement may not be modified or extended except by a written agreement signed by authorized representatives of Encore with specific reference hereto. If any provision of this Agreement is held invalid, prohibited, or unenforceable in any applicable jurisdiction, then, as to such jurisdiction only, that provision will be ineffective, but only to the extent legally required. That treatment will not affect the validity or enforceability of the remaining provisions of this Agreement, or (ii) any provision of this Agreement in any other jurisdiction. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.