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Customer Terms & Conditions

General Conditions Rider

1. THE AGREEMENT DOCUMENTS

The documents relating to our agreement may consist of the Agreement, the Schedule of Locations, the Customer Profile, and this General Conditions Rider, all of which shall be executed and/or delivered prior to the Effective Date and any subsequent modification (collectively, the “Agreement Documents”).  A modification may only be made by a written amendment to the Agreement or proposal signed by both parties (in each case, a “Modification”).  The intent of the Agreement Documents is to include all items necessary for the proper execution and completion of the work and for services performed by EEDS. The Agreement Documents are complementary, and what is required by one shall be binding as if required by all; performance by EEDS shall be required to the extent consistent with the Agreement Documents and reasonably inferable from them as being necessary to produce the intended results.

2. THE AGREEMENT

The Agreement Documents form the agreement for services and/or work performed by EEDS hereunder.  The Agreement Documents represent the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either oral or written.  The Agreement Documents may be amended or modified only by a Modification.  The Agreement Documents shall not be construed to create a contractual relationship of any kind (1) between EEDS and the Manufacturer or Supplier/Distributor; (2) between the Customer and a Sub-Contractor or Sub-Sub-Contractor; (3) between the Customer and the Manufacturer or Supplier/Distributor; or (4) between any person or entity other than EEDS and Customer.

3. OWNER OF PROPERTY

EEDS shall remain the owner of all parts installed under this Agreement on or in the contracted premises of Customer until such time as this Agreement expires and any and all outstanding amounts are paid.  Upon payment, all parts installed under this Agreement shall become the property of Customer.

4. ACCESS TO CUSTOMER PREMISES

Customer hereby provides EEDS with authorization to enter all locations under Agreement to provide service and/or repair at each of the locations, based on agreed level of service.  Customer also agrees to grant EEDS’s authorized service personnel access to all lighting fixtures by ensuring that secured areas (including access doors and gates) are opened, boxes and other obstructions and personnel are removed from areas immediately adjacent to the fixtures being serviced and, in the case of outdoor fixtures, all obstructions are removed, such as trees and movable equipment.  An additional charge, equivalent to EEDS’s prevailing rates per hour, or part thereof, and per person, will be added to Customer’s billing for interruption of EEDS’s work, where such interruption takes place through no fault of EEDS or its personnel.

5. COMMENCEMENT OF WORK

EEDS shall commence work and/or services after (a) all necessary materials have been assembled, or enough to commence work  (b) EEDS has received payment as required under the Agreement, and (C) the parties have mutually agreed upon a commencement date.

6. EEDS STANDARDS

EEDS will make reasonable efforts in the performance of the services rendered hereunder to reduce any disruption of Customer’s business to a minimum.  All work and/or service performed by EEDS will be performed in accordance with industry standards and in compliance with applicable municipal, county, state, and federal codes and/or regulations.

7. CUSTOMER OBLIGATIONS

In addition, the Customer acknowledges that any physical area in which EEDS performs any work pursuant to this Agreement which is used, in fact, as a construction zone, and that as such, hazardous conditions may be present, the Customer, if applicable, shall (a) ensure that no persons shall be allowed in the construction zone unless authorized by EEDS; (b) notify all its personnel as well as others in the vicinity that they shall not enter upon the construction zone; (c) take all steps necessary to ensure that they do not enter into the construction zone; and (d) indemnify EEDS from any and all claims made or losses suffered by reason of any unauthorized persons coming on to the construction zone.  In the event that any unauthorized persons do come into the construction zone, then EEDS shall have the right to cease any or all work so as to minimize the risk of any such persons, in which event all deadlines for performance by EEDS hereunder shall be extended to and compensated for time lost, and the Customer shall reimburse EEDS for any and all additional costs and expenses incurred by EEDS by reason of such delay, including but not limited to any additional labor expenses incurred by EEDS (at the prevailing rates of EEDS at the time of the Agreement).

Customer agrees to cooperate in good faith with EEDS to allow the installation of the product in a timely manner, and, if applicable, to have its employees move all of Customer’s personal property, equipment, inventory, or other items that are required to be moved to facilitate the installation. Customer shall notify its customers and employees to remove all personal property within the construction zone so as to avoid or minimize possible damage.  EEDS shall have no obligation to move any such personal property, equipment, inventory, or other items.  However, if EEDS does move such personal property, EEDS shall not be responsible for any loss of or damage to said personal property.  The Customer specifically agrees to look only to whatever insurance Customer chooses to have on same, and Customer specifically waives any rights of subrogation its insurer may have as to EEDS, etc.  Customer shall ensure that such items are moved in an expedient manner and Customer agrees to cooperate in every respect to facilitate the timely installation and repairs for services.  EEDS shall not be liable for any delays caused by any party other than EEDS, its employees or authorized agents.  Furthermore, in the event that any act or omission on the part of the Customer, its employees, agents or representatives shall in any way create a situation which EEDS must assign/employ additional personnel and/or additional tradesman time, then the Customer shall reimburse EEDS for the costs of all such additional time at the then standard hourly rate.

In the event that any portion of the Customer’s electrical system is in a state of disrepair so as to impair EEDS in its performance under this Agreement, or is insufficient to operate the electrical apparatus per the scope of work, upon authorization EEDS shall remedy such repair or install such additional power as needed.   Customer shall pay to EEDS the agreed upon rates for same, including, but not limited to its then standard hourly rates.

Customer may make any additions to the work completed by EEDS only after such additions have been authorized and mutually agreed upon, by a written addendum to this Agreement or change order.  Customer agrees to compensate EEDS at the standard rate per person per hour for any delays caused by Customer, or any third party, and for any work in addition to that contemplated under this Agreement.

8. DEFAULT BY EEDS

In the event of a default by EEDS, the Customer shall notify EEDS in writing within fourteen (14) days of said non-performance, EEDS shall have forty‑five (45) days to remedy any such non-performance.  If such non-performance is not remedied during this forty-five (45) day period, subject to extension for delays beyond EEDS’s control, then Customer may, within ten (10) days of the expiration of such period, terminate the Agreement in writing and be entitled to a refund of the amounts paid only with respect to those defective/non-performing Product.  In the event EEDS, in its sole discretion, chooses to remedy any non‑performing goods, Customer agrees to fully cooperate with EEDS as required by this Agreement.  EEDS expressly reserves the right to repossess those allegedly defective/non‑performing products and Customer agrees that any such repossession shall not be considered a breach of the peace.

9. DEFAULT BY CUSTOMER/REMEDIES

  1. At the option of EEDS, and without in any way limiting its right to demand payment in full pursuant to this Agreement, EEDS may declare a default under the terms of this Agreement, upon the occurrence of any of the following events of default: (a) Customer fails to timely make a payment when due; (b) Customer breaks any written promise Customer has made to EEDS or Customer fails to perform promptly at the time and strictly in the manner provided in this Agreement or in any other written agreement related to this Agreement; (c) a breach of any term or condition of this Agreement; (d) suspension, liquidation, sale or transfer of Customer’s business or assets; (e) any representation, warranty, statement or report made or furnished to EEDS by Customer or on Customer’s behalf is false or misleading in any material respect; (f) Customer becomes insolvent, receiver is appointed for any part of Customer’s property, Customer makes an assignment for the benefit of creditors or any proceeding as commenced either by Customer or against Customer under any bankruptcy or insolvency laws; (g) any creditor tries to take any of Customer’s property in which EEDS has a lien or security interest; (h) issuance of any tax levy or lien against Customer’s property; and (i) the filing of formal charges under any federal or state law against Customer or Customer’s assets which forfeiture is a potential penalty.
  2. Customer agrees that EEDS shall not be obligated to perform any of the maintenance service herein specified while Customer is in default of any payment.
  3. If any sum due under this Agreement or to become due from Customer to EEDS is referred to collection, Customer agrees to pay all costs and expenses of collection and attorney’s fees incurred by EEDS at all pre-trial, trial, appellate and post-judgment proceedings.
  4. In the event of default by Customer, and at EEDS’s option, EEDS shall be entitled to any or all of the following remedies without notice:
    • Since EEDS, by virtue of this Agreement, has a lien on Customer’s real property improved pursuant to this Agreement, then, to the extent permitted by applicable law, EEDS shall be entitled to enforce its rights under this Agreement.
    • Further, to the extent that Chapter 713 of the Florida Statutes may not apply then for all purposes herein, EEDS shall be deemed to have a security interest in any and all of the product supplied by EEDS and, in addition to all other rights and remedies hereunder, EEDS shall be entitled to all rights and remedies as provided a secured creditor under the Florida Uniform Commercial Code.
    • In addition to all of the remedies herein, and not in limitation thereof, EEDS shall have all remedies available in law or equity.

10. CUMULATIVE REMEDIES

Each right and remedy of EEDS provided for in these Agreement Documents shall be cumulative and shall be in addition to every other right or remedy provided for in these Agreement Documents or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by EEDS of any one or more of the rights or remedies provided for in these Agreement Documents or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by EEDS of any or all other rights or remedies provided for in these Agreement Documents or now or hereafter existing at law or in equity by statute or otherwise.  The provisions of this section of the General Conditions Rider shall survive the termination of this Agreement.

11. ENVIRONMENTAL COMPLIANCE

EEDS and Customer acknowledge that applicable law may require special means of disposal of fluorescent lighting tubes and hazardous substances.  The terms “hazardous waste”, “hazardous substance”, “disposal”, “release”, and “threatened release”, as used in these Agreement Documents, shall have the same meaning as set forth in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. (“CERCLA”), the Superfund Amendments and Reauthorization Act of 1986, Pub.L. No. 99‑499 (“SARA”), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 49 U.S.C. Section 6901, et seq. or other applicable state or Federal laws, rules or regulations adopted pursuant to any of the foregoing.

For all purposes, as stated by law, the Customer shall be the “generator” of such materials.  Customer warrants that it has agreed with EEDS to provide for the lawful disposal of all such hazardous substances, and Customer and EEDS agree that EEDS’s obligations with regard to same are limited to boxing such hazardous substances and making same available for said disposal company.  Although EEDS is not responsible for securing or issuing a Certificate of Proper Disposal for Customer, it will use all commercially reasonable efforts to secure and deliver such a Certificate once all payments due to EEDS by Customer have been received by EEDS.

Customer shall comply in all respects with all environmental protections, federal, state and local laws, statutes, regulations and ordinances; not cause or permit to exist, as a result of an intentional or unintentional action or omission on its part or on the part of any third party, on property owned and/or occupied by Customer, any environmental activity where damage may result to the environment, unless such environmental activity is pursuant to the conditions of a permit issued by the appropriate federal, state or locate governmental authorities.

12. VARIATIONS

EEDS will meet its obligations under these Agreement Documents by complying with the Scope of Work approved by the Customer.  EEDS shall not guarantee nor shall EEDS be required to ensure that light levels generated by the new equipment (including lamps, ballasts and reflectors) installed pursuant to this Agreement meet any projected light levels or as to the existence of lack of existence of any other factor which will affect the light level within the environment.

Customer shall pay for any extraordinary expenses associated with the Agreement, including, but not limited to all permitting, engineering fees, drawings, or wind load calculation fees, as appropriate or as required by any governmental authority, and extra dumpsters or other non‑labor charges associated with the disposal of non-hazardous waste or excess materials.

13. INSURANCE

EEDS shall carry general liability insurance coverage of a minimum of $2,000,000 per occurrence.  In addition to our general liability coverage, as an added value to our customers, EEDS will indemnify and hold harmless Customer, up to a limit of $1,000,000, from and against all loss or damage suffered by Customer as the result of claims made for physical injuries or property damage, including cost, expenses and attorneys’ fees, directly arising or resulting from the failure of EEDS to timely render services under this Agreement that in turn caused, or allowed to remain, an unsafe condition on  Customer’s location.  This indemnity shall only be applicable if Customer has responded timely to EEDS’s notification of needed repairs and EEDS fails to provide the repairs or maintenance services within the performance guarantees noted herein.  This indemnity expires upon the termination of this Agreement, whether as the result of the normal expiration of the Agreement term or due to early termination for any reason whatsoever.  This security indemnity is inapplicable in the event additional lighting is necessary in order to meet all applicable building codes for the location, or in EEDS’s discretion, additional lighting is required to assist increasing the safety level of lighting, and Customer fails to have EEDS install such additional lighting as required.

14. LIMITATION OF WARRANTY

EEDS MAKES NO EXPRESS WARRANTIES OR CONDITIONS BEYOND THOSE STATED IN THIS AGREEMENT.  EEDS DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

EEDS’S RESPONSIBILITY FOR MALFUNCTIONS AND DEFECTS IN PARTS AND MATERIALS IS LIMITED TO REPAIR AND REPLACEMENT DURING THE TERM OF THIS AGREEMENT, WHETHER AS THE RESULT OF THE NATURAL EXPIRATION OF THIS AGREEMENT OR EARLY TERMINATION OR FOR ANY REASON. 

EEDS DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH IN THIS WARRANTY STATEMENT OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.

15. FORCE MAJEURE

This Agreement does not cover, nor shall EEDS be liable for service, maintenance, repair or replacement necessitated or occasioned by loss, failure or damage resulting from any cause beyond EEDS’s control, including, but not limited to fire of any origin, faulty or leaky ballasts voltage variances, explosions, governmental restrictions, labor disorder, lightning, accident, water, windstorm, hurricane, hail, theft, vandalism, negligence, prohibition to obtain materials or services, misuse, other acts of nature, or failure or damage due to unauthorized repairs by others.  In no event shall EEDS be liable for any consequential damages whatsoever resulting from any failure or delay in delivery of services or work or materials hereunder, whether from causes beyond EEDS’s control or not.

EEDS shall not be liable for any fuel surcharges; these will be billed to Customer separately.  Moreover, if the cost of fuel shall increase by 25% during the term of this Agreement, EEDS shall be permitted to increase prices charged under this Agreement to reflect a per trip charge of $7.00.

16. MISCELLANEOUS

  1. Agreement Terms Confidential. The parties agree that they will not voluntarily publish, publicly disclose or disclose in a manner which will reasonably lead to publication of, terms or provisions of this Agreement, including specifically those relating to compensation.
  2. Notices. All notices required or permitted to be given under the terms of this Agreement shall be in writing.  Notices may be personally delivered to a party or sent by facsimile to a party or may be mailed to a party.  Notices are deemed given when received by the party being notified.  However, if a notice is mailed to a party by certified mail, return receipt requested, proper postage prepaid, in an envelope addressed to the address of the party (or such other address as my be designated by a party by giving notice thereof to the other party) then such notice shall be deemed given on the date that it is turned over to the custody of the United States Postal Service.
  3. Further Assurances. All parties hereto shall execute and deliver such other instruments and do such other acts as may be necessary to carry out the intent and purposes of this Agreement.
  4. Counterparts. This Agreement may be executed in any number of counterparts.  All executed  counterparts shall constitute one agreement, notwithstanding that all signatories are not signatories to the original or the same counterpart.
  5. Severability. The invalidity in whole or in part of any covenant, promise or undertaking, or any section, subsection, paragraph, sentence, clause, phrase or work, or of any provision of this Agreement shall not affect the validity of the remaining portions thereof.
  6. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.  The parties hereto agree that all actions and proceedings relating directly or indirectly hereto shall be litigated in any state court or federal court located in Broward County, Florida, and the parties hereby expressly consent to the jurisdiction of any such courts and to venue therein and consent to service of process in any such action or proceeding by certified or registered mailing of the summons and complaint therein directed to the parties at their respective addresses set forth in this Agreement.
  7. This agreement shall be binding upon the successors, assigns and legal representatives of both parties.  In the event of the sale or conveyance of the CUSTOMER’s premises, CUSTOMER’s buyer shall assume all rights and obligations under this agreement.  A copy of this agreement shall be provided to any such buyer prior to closing of title.
  8. This agreement is not valid until signed by both parties.  No amendment or change to this agreement shall be valid unless mutually agreed upon by both parties in writing.
  9. Construction. Each party has reviewed this Agreement and has had an opportunity to consult with counsel.  As a result, the rule of construction that ambiguities are to be resolved against the party drafting this Agreement shall not apply.
  10. Binding Effect. This Agreement shall be binding upon the heirs, personal representatives, guardians, legal representatives, administrators, assigns and successors of the parties hereto.
  11. Attorney’s Fees. In the event of any litigation arising out of this Agreement, the prevailing party shall be entitled to court costs and reasonable attorneys’ fees at the pre-trial, trial, appellate and post judgments levels.
  12. Waivers. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement, whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
  13. Reference to Customer Name.  Customer agrees that EEDS may cite Customer’s name as one of EEDS’s customers, and use Customer’s name as a reference.

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