Terms of Service
- ACCEPTANCE: This Agreement consists of the Proposal which contains the scope of work (“Proposal”) and is incorporated herein by reference, and the terms and conditions stated herein and is the complete agreement between the parties (collectively, the “Agreement”). The terms and conditions of this Agreement and any attached pages are hereby incorporated by reference and accepted by Customer. Customer acknowledges that Customer has read this Agreement, understands it, and agrees to be bound by its terms and conditions. IN THE CASE OF A CONFLICT BETWEEN THIS AGREEMENT AND ANY OTHER DOCUMENTATION SUPPLIED BY CUSTOMER, INCLUDING BUT NOT LIMITED TO, A PURCHASE ORDER, THE CONTENTS, TERMS AND CONDITIONS OF THIS AGREEMENT SHALL PREVAIL AND CONTROL. THIS PROVISION, AND EACH AND EVERY OTHER PROVISION OF THIS AGREEMENT, MAY NOT UNDER ANY CIRCUMSTANCES BE MODIFIED, CHANGED, AMENDED OR WAIVED VERBALLY, BUT MAY ONLY BE MODIFIED, CHANGED, AMENDED OR WAIVED BY A WRITTEN AGREEMENT EXECUTED BY PINNACLE. Neither party shall be bound by any statements or representations not contained in this Agreement. Unless otherwise agreed by Pinnacle in writing, Customer is responsible for obtaining all licenses and permits and for paying all applicable taxes and fees. Where the Agreement is not executed, payment by Customer, permission to perform the services, or acceptance by Customer of the services, materials and/or equipment set forth on the Proposal of this Agreement shall constitute acceptance of the terms and conditions of this Agreement. If Customer fails to make payment when due, Pinnacle shall have the right, in its sole discretion, to reject performance of current or future services until the account is current. Customer’s failure to make payment when due is a material breach of this Agreement. Customer may not assign this Agreement without Pinnacle’s prior written consent.
- VALIDITY PERIOD: The price quotes provided in the Proposal are valid for 30 days unless otherwise specified in writing by Pinnacle.
- PAYMENT TERMS: Unless otherwise agreed in writing between the parties, or set forth in the Proposal, Customer shall pay Pinnacle ___________________. A mobilization payment up to one hundred percent (100%) may be invoiced upon acceptance of the Proposal and any remaining payments due upon completion of the work. At Pinnacle’s sole option, Customer shall pay cash in advance, or upon delivery, or as otherwise specified by Pinnacle. In the event that Customer defaults on its obligation to pay each invoice when due, then, in addition to all other rights and remedies available to it, Pinnacle shall have the option to withhold any further shipments of materials and/or the provision of services, if any, until Customer’s account is paid in full. Further, in the event payment is not received according to the payment terms stated herein, Pinnacle may, at its discretion, assess interest at the maximum rate allowed by law or at the rate of 1.5% per month, whichever is greater. Customer also agrees to pay all attorney’s fees, experts’ fees and court costs incurred by Pinnacle in enforcing the terms of this Agreement including in pursuit of past due payment.
- PINNACLE SERVICES: Customer further agrees that Pinnacle offers various types of services and that the Customer, after reviewing the same, has contracted with Pinnacle to perform only the services described in writing in this Agreement. Pinnacle denies liability for materials, supplies, equipment, or work provided by other persons, companies or any other party. Unless specifically contracted for, Pinnacle denies any supervisory role and this Agreement shall not commit Pinnacle to any supervisory role.
- SECURITY INTEREST: Customer grants to Pinnacle, and Pinnacle retains, a security interest in all material, equipment, and services thereof provided pursuant to this Agreement until the Customer shall have made full payment for the material, equipment, and services. Such interest is intended to be effective as a purchase money security interest. Customer agrees that Pinnacle may file this Agreement as a financing statement. In case of default of payment, and to the extent permitted by law, Pinnacle shall have the right to take possession of the material, product, and equipment immediately, wherever it may be found, and remove it with or without process of law and may retain all money paid hereunder. Customer agrees to pay Pinnacle’s costs of collection, including without limitation reasonable attorney’s fees and legal expenses, and that the same are secured by the security interest granted herein. Customer shall not sell, prior to payment (except in the ordinary course of business), mortgage, pledge, or lease said material, products, or equipment without prior written permission of Pinnacle.
- LIMITATION OF WARRANTY; WARRANTY DISCLAIMERS: SUBJECT TO THE LIMITATIONS BELOW, PINNACLE WARRANTS THAT THE SERVICES SHALL BE FREE FROM DEFECTS IN WORKMANSHIP FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF INSTALLATION, PROVIDED, HOWEVER, THAT PINNACLE’S SOLE LIABILITY, AND CUSTOMER’S SOLE REMEDY, UNDER SAID WARRANTY, SHALL BE LIMITED TO THE REPAIR OF THE DEFECTIVE SERVICE OR PORTION THEREOF, WHICH PINNACLE DETERMINES TO BE DEFECTIVE, AT PINNACLE ’S SOLE OPTION AND SUBJECT TO THE AVAILABILITY OF SERVICE PERSONNEL AND PARTS, AS DETERMINED BY PINNACLE. WHERE PINNACLE PROVIDES PRODUCT, EQUIPMENT, MATERIALS OR ANY PART OF OTHERS, PINNACLE WILL WARRANT THE EQUIPMENT, PARTS, OR MATERIALS ONLY TO THE EXTENT WARRANTED BY SUCH THIRD PARTY AND THIS WARRANTY IS EXPRESSLY LIMITED TO SUCH THIRD-PARTY WARRANTY. EXCEPT AS EXPRESSLY SET FORTH HEREIN, PINNACLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES PERFORMED OR THE MATERIALS, PRODUCT, SYSTEMS, OR EQUIPMENT, IF ANY, SUPPORTED HEREUNDER. PINNACLE IS ALSO NOT LIABLE FOR NOTIFYING CUSTOMER OF EQUIPMENT RECALLS. THIS WARRANTY DOES NOT APPLY TO ANY EQUIPMENT, MATERIAL, PRODUCT OR OTHERWISE WHICH HAS BEEN SUBJECTED TO ABUSE, MISHANDLING, OR IMPROPER USE AS DETERMINED BY PINNACLE. If Pinnacle determines the services and/or materials are under warranty, service will be performed at no charge between the hours of 8:00 to 5:00 p.m. local time, Monday through Friday, exclusive of Pinnacle’s holidays. Warranty service requested to be performed at other than during Pinnacle’s normal work hours shall be chargeable at Pinnacle’s standard overtime rates. All repairs or adjustments that are or may become necessary under the warranty provisions of this Agreement shall be performed only by an authorized representative of Pinnacle. Any repairs, adjustments, or interconnections performed by Customer or anyone other than an authorized Pinnacle representative shall void all warranties.
- LIMITATION OF LIABILITY: THE PARTIES ACKNOWLEDGE AND AGREE THAT PINNACLE SHALL NOT BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR TREBLE DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ECONOMIC LOSS DAMAGES OR LOSS OF PROFITS OF ANY KIND, DAMAGES ARISING FROM THE CUSTOMER OR USER OF THE SERVICE, MATERIAL, EQUIPMENT, AND/OR PRODUCT, THE OPERATION OR FAILURE OF THE MATERIAL, EQUIPMENT, AND/OR PRODUCT TO OPERATE, THIS AGREEMENT, OR THE INSTALLATION, USE, DESIGN OR FUNCTION OF ANY THIRD PARTY PRODUCT, EQUIPMENT, MATERIAL AND/OR SYSTEM. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, CUSTOMER AGREES THAT PINNACLE’S LIABILITY FOR PERSONAL INJURY, DEATH OR PROPERTY DAMAGE OR ANY OTHER DAMAGE, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED 2X OF THE TOTAL PURCHASE PRICE PAID FOR THE PRODUCT, SYSTEM AND/OR SERVICES. SUCH SUM SHALL BE CUSTOMER’S SOLE, COMPLETE AND EXCLUSIVE REMEDY AND SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES OR A LIMITATION OF LIABILITY AMOUNT AGREED ON BY THE PARTIES AND NOT AS A PENALTY. IN NO CIRCUMSTANCES WILL PINNACLE BE HELD LIABLE FOR ANY CLAIMS, LOSSES, DAMAGES, OR INJURIES ARISING FROM OR CAUSED BY THE CUSTOMER’S OR ANY OTHER PARTY’S MATERIAL, PRODUCTS, SYSTEM, EQUIPMENT, ACTIONS, OR OMISSIONS. If Customer desires Pinnacle to assume greater liability, the parties shall amend this Agreement by attaching a rider setting forth the additional liability and additional amount payable by Customer for the assumption by Pinnacle of such greater liability, provided however, such rider shall in no way be interpreted to hold Pinnacle as an insurer.
- INDEMNIFICATION: TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND PINNACLE FROM ANY AND ALL CLAIMS, DEMANDS, SUBROGATION CLAIMS BY CUSTOMER’S INSURERS, CAUSES OF ACTION, FINES, CONTROVERSIES, LIABILITIES, REGULATORY ACTIONS, SEIZURES OF EQUIPMENT OR SYSTEMS, LOSSES, DAMAGES, COSTS AND EXPENSES (INCLUDING, BUT NOT LIMITED TO ATTORNEY’S FEES AND EXPERT WITNESS AND LITIGATION EXPENSES AND COSTS) (HEREINAFTER COLLECTIVELY “CLAIMS”), ARISING FROM OR IN CONNECTION WITH ANY INJURY, DEATH, PROPERTY DAMAGE OR ANY OTHER CLAIM, WHETHER BASED UPON CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE, RELATING TO THIS AGREEMENT, THE BUSINESS RELATIONSHIP BETWEEN THE PARTIES, THE GOODS, PRODUCT, EQUIPMENT, SYSTEMS, COMPONENT PARTS, AND/OR SERVICES PROVIDED HEREUNDER, CUSTOMER’S USE, MODIFICATION, OR ALTERATION OF THE GOODS, PRODUCT, EQUIPMENT, SYSTEMS OR COMPONENT PARTS, CUSTOMER’S FAILURE TO MAINTAIN THE SYSTEMS, PRODUCT, GOODS AND/OR EQUIPMENT OR KEEP SUCH IN OPERATIVE CONDITION OR CUSTOMER’S BREACH OF THIS AGREEMENT. IN NO EVENT SHALL PINNACLE BE LIABLE FOR ANY DAMAGE, LOSS, INJURY, OR ANY OTHER CLAIM ARISING FROM ANY ALTERATIONS, MODIFICATIONS, CHANGES, OR MOVEMENTS OF THE PRODUCT, SYSTEM OR SERVICES BY CUSTOMER OR ANY THIRD PARTY. THE INDEMNITY PROVISIONS CONTAINED IN THIS AGREEMENT SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THE AGREEMENT AND SHALL APPLY REGARDLESS OF WHETHER OR NOT SEPARATE, SEVERAL, JOINT, OR CONCURRENT LIABILITY MAY BE IMPOSED ON PINNACLE AND WHETHER OR NOT THE SAME IS CAUSED OR CONTRIBUTED TO BY THE NEGLIGENCE OF PINNACLE, OR WHETHER OR NOT IT IS ALLEGED THAT PINNACLE IN ANY WAY CONTRIBUTED TO THE CLAIMS OR IS LIABLE DUE TO A NON-DELEGABLE DUTY. NOTWITHSTANDING THE FOREGOING, THIS INDEMNITY PROVISION DOES NOT PURPORT TO INDEMNIFY PINNACLE FOR ITS OWN SOLE NEGLIGENCE TO THE EXTENT SUCH INDEMNIFICATION IS CONTRARY TO LAW.
- INSURANCE REQUIREMENTS: It is understood and agreed by Customer that Pinnacle is not an insurer and that it is the Customer’s obligation to obtain and maintain any insurance covering any losses to property or personal injury or any other damage which may occur at the premises where the equipment, product, materials, or services, which form the basis of this Agreement, are delivered, assembled, installed, used, or performed. Customer agrees to look exclusively to Customer’s insurer to recover for injuries or damage in the event of any loss or injury; that the amounts payable to Pinnacle hereunder are based upon the value of the equipment, material, product, system and/or services and the scope of liability set forth herein; and that Pinnacle is not guaranteeing that no loss will occur. Customer agrees to list Pinnacle, its shareholders, officers, employees, agents, subcontractors, and representatives as additional insureds on Customer’s general liability policies and shall provide Pinnacle with a copy of the Certificate of Insurance upon request. Customer further agrees that the Certificate of Insurance shall contain a provision that coverage afforded under the policies will not be canceled or materially altered until at least thirty (30) days after written notice is given to Pinnacle. Customer does hereby, for itself and all others claiming for it under this Agreement, release and discharge Pinnacle from and against all hazards covered by Customer’s insurance, it being expressly agreed and understood that no insurance company, insurer, or any other third party will have any right of subrogation against Pinnacle.
- ONE-YEAR LIMITATION OF ACTIONS; ATTORNEY FEES: To the fullest extent permitted by law, it is agreed that no suit or cause of action or other proceeding shall be brought against Pinnacle more than one (1) year after the date the service was performed, whether known or unknown when the claim arises or whether based on tort, contract, or any other legal theory. Pinnacle shall be entitled to recover from Customer all reasonable legal fees, court costs and expenses incurred in connection with Pinnacle enforcing the terms and conditions of this Agreement.
- FORCE MAJEURE: Pinnacle shall not be liable for any loss or damage of any kind resulting from delay, inability to deliver, or install, or to perform any other work under this Agreement on account of fire, flood, pandemic, labor problems, access to premises, material shortage, accidents, acts of civil or military authorities, acts of God, or from any other causes beyond Pinnacle’s control.
- EVENTS OF DEFAULT: Customer shall be in default of this Agreement upon the occurrence of including but not limited to, any of the following: (a) Customer’s failure to make punctual payment of any payment due pursuant to this Agreement; (b) Customer’s failure to perform any obligation under this Agreement; (c) An order, judgment or decree entered, with the approval or consent of Pinnacle, by any court of competent jurisdiction, approving a petition seeking reorganization of Customer or appointing a receiver, trustee, or liquidator (or other officer having power, under applicable law, similar to those of a receiver, trustee, or liquidator) of Customer or of all or a major portion of its assets, and such order, judgment, or decree shall continue unstayed and in effect for any period of sixty (60) consecutive days; (d) Customer fails to provide Pinnacle with adequate assurances of due performance under the Agreement, after receiving a written request for same from Pinnacle; (e) Customer’s financial position materially deteriorates; or (f) Customer shall cease to do business as a going concern.
- SEVERABILITY: If any provision of this Agreement is held by any court or other competent authority to be void or unenforceable in whole or in part, this Agreement will continue to be valid as to the other provisions and the remainder of the affected provision. This Agreement may be executed simultaneously in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The parties agree that this Agreement may be signed by electronic transmission in portable document format or facsimile transmission and shall be deemed to be original signatures.
If there are any questions regarding our Terms of Service, you may contact us using the information below.
PINNACLE CONTRACTORS INC.
PO Box 387
Evansville, IN 47703