Access LLC is herein referred to as “Access LLC.” The person or entity purchasing maintenance services is herein referred to as “Customer”. Access LLC agrees to provide and Customer agrees to accept maintenance services for those Customer products and equipment (“Equipment”) set forth in the Schedule(s) (individually or collectively the “Schedule”) to these Terms and Conditions, or as listed on the attached Proposal for Service (“Proposal”), as applicable. Such services will be provided in accordance with these Terms and Conditions and the particular maintenance plan and services (“Maintenance Plan”) selected by Customer, in consideration for Customer payment of the appropriate Maintenance Plan fees, as set forth in the Proposal or Schedule to these Terms and Conditions, and any other applicable fees as described herein.

1. Maintenance Plan

Maintenance Plans may include:

a) Scheduled Preventative Maintenance: Service may include: lubrication, adjustment and replacement of unserviceable parts and such other services as may be required by the particular Equipment. Services will be provided at times mutually agreed upon by Access LLC and Customer so as to minimize interference with Customer’s use of the Equipment;
b) Unscheduled On-Call Preventative Maintenance: Service includes adjustment and replacement of unserviceable Equipment parts as the Access LLC Customer Service technician determines necessary;
c) Conforming Maintenance: Service includes maintenance of Equipment in accordance with manufacturers’ written instructions, including the installation of mandatory safety engineering changes as may be required by a manufacturer;
d) Diagnostic Assistance: Service includes assisting Customer in determining origin of Equipment problems, reading log outs and testing and running of diagnostics to isolate a failing unit, whether or not such unit is part of the Equipment covered under Customer selected Maintenance Plan;
e) Monitoring: Remote monitoring of Access LLC monitoring equipment installed at the Customer’s site and initiation of agreed upon response plans when an alarm occurs;
f) Service Management: Management of service activities not directly provided by Access LLC, i.e., services provided under items (a) through (e). Service management includes management of multiple vendors providing the above services, consolidation of other service agreements, and reporting of service activity, as selected in the Maintenance Plan.

If Customer requests a service which is not included in the Maintenance Plan selected by Customer, Customer will be billed for such service at Access LLC’s then prevailing labor and materials rates. Customer may elect to change Maintenance Plans if: a) Customer provides written notice of same to Access LLC at least ninety (90) days prior to the desired effective date of the change and b) a new Schedule or Proposal is executed by Customer and accepted by Access LLC within this same period of time. Upon completion of a) and b) above, the substitute Maintenance Plan selected by Customer shall become the Maintenance Plan hereunder.

2. Parts

If provided for in the Maintenance Plan selected by Customer, Equipment parts in need of replacement will be removed by Access LLC and replacement parts installed free of charge. Parts removed become the property of Access LLC. Under other Maintenance Plans which Customer may select, parts which Access LLC determines require replacement will be furnished at Access LLC’s then prevailing materials rate. Parts furnished hereunder are furnished AS IS, WHERE IS, WITH NO WARRANTY WHATSOEVER, unless such warranty is provided in other agreements.

3. Payment

Maintenance Plan fees will be billed by Access LLC to Customer annually in advance, or as may otherwise be provided for in the Schedule or Proposal, and will be assessed commencing with the later of: a) if the Equipment is new and start-up of the Equipment has not yet occurred, the start-up date of the Equipment as determined by Access LLC or b) the date specified in the Schedule or Proposal. All Maintenance Plan fee payments, or other payments that may be due hereunder, are due ten (30) days from date of invoice. Payments not received within ten (30) days from date of invoice shall be subject to a late payment charge of one and one-half percent (1 1/2%), or the maximum charge allowed by law. Access LLC reserves the right to increase Maintenance Plan fees upon ninety (90) days prior written notice of same to Customer, but in no case will Access LLC increase the Maintenance Plan fees for identical services more than once every twelve (12) months.

4. Taxes

Customer will be responsible for payment of any additional amounts needed to pay any taxes, however designated or levied, applicable to any parts or services provided hereunder exclusive, however, of taxes based on the net income of Access LLC.

5. Billable Services

Additional charges will be billed to Customer, at Access LLC’s then prevailing labor and material rates, for any of the following:

a) Any services not provided for in the Maintenance Plan selected by Customer;
b) Any Maintenance Plan services performed at times other than Access LLC’s normal service hours if extended service hour coverage is not provided for in the Maintenance Plan selected by Customer;
c) Service necessary to return Equipment to proper operating condition as a result of Customer or Customer’s representatives attempts to maintain/repair the Equipment;
d) Service to repair damage to Equipment as a result of: i) misuse, neglect, accident; ii) use of other non-covered equipment with Equipment covered by these Terms and Conditions; iii) catastrophe or other causes external to Equipment; iv) failure to maintain facilities and Equipment in a reasonable manner; v) failure to operate Equipment in accordance with applicable specifications;
e) If reasonable site and Equipment access is denied the Access LLC service representative;
f) If it is necessary, due to local circumstances, to use union labor or hire an outside contractor; Access LLC service personnel will provide supervision only and the cost of such union or contract labor will be charged to Customer;
g) If Equipment is modified by Customer, including, but not limited to changes in specifications and incorporation of attachments or other features.

6. Movement of Equipment

Customer agrees to provide Access LLC with ninety (90) days prior written notice of any change in location or material rearrangement of the Equipment. If Access LLC restarts the Equipment or provides relocation assistance to Customer, Customer will be charged for such services at Access LLC’s then prevailing labor and materials rates.

7. Exclusions

Maintenance Plan services to be provided hereunder do not include:

a) Maintenance or repair of accessories, attachments, features or other devices not covered by the Maintenance Plan;
b) Electrical work external to the Equipment;
c) Equipment painting and exterior finish;
d) Daily Equipment operations;
e) Installation of new equipment or modifications, updates, or revisions to existing Equipment;
f) Removing, replacing, or refinishing any part of the building structure or other objects restricting access to the Equipment;
g) Service which is impractical for Access LLC to render because of alterations to the Equipment;
h) Service which is precluded by federal, state, local government or trade association regulations or contractual standards.

8. Access to Equipment

Customer shall provide Access LLC service personnel ready access to the Equipment site, subject to Customer’s reasonable internal security and safety rules, and adequate work space and facilities to perform Maintenance Plan services. Actions and expenses necessary to provide Access LLC access to Equipment to include building structure alteration, repair, or movement/replacement of other equipment are the responsibility of Customer. Access LLC shall have no responsibility or liability for any costs, expenses, or damages arising from Customer failure to provide access.

9. Access LLC Materials

Access LLC reserves the right to place materials on Customer premises that are to be used in the provision of Maintenance Plan services or installed in the Equipment. Customer hereby acknowledges that such materials remain the property of Access LLC until installed in the Equipment and agrees to take no action that will jeopardize Access LLC’s rights of ownership in such materials. If Access LLC materials placed on Customer property are damaged, destroyed or stolen due to the intentional acts, negligence or failure to act of Customer, its employees, agents, or invitees, Customer shall reimburse Access LLC for such loss in an amount equal to the full replacement value of such materials. Access LLC shall remove any Access LLC materials placed on Customer premises within a reasonable time, not to exceed sixty (60) days, after the cancellation of these Terms and Conditions.

10. Subcontractors

Access LLC, in its sole discretion, reserves the right to subcontract to others Maintenance Plan services or other repairs or services to be performed under these Terms and Conditions.

11. Safety Personnel

If OSHA or any other federal, state or local government, trade association, or contractual regulations or standards require a “safety person” to be on site during Maintenance Plan services or other services, Customer shall be responsible for advising Access LLC of same and providing for such a person at the Equipment site at Customer cost. If Access LLC agrees, in writing, to provide for a safety person, Customer will be billed for such person’s time at Access LLC’s then current labor and materials rates.

12. Cancellation

These Terms and Conditions, or any part of them, are subject to cancellation by Access LLC if the conditions specified herein are not met by Customer, or if Customer becomes insolvent or bankrupt. In such event, Access LLC is under no obligation to pay Customer for any expenses, costs, claims, or liabilities incurred and Access LLC may retain any portion of the Maintenance Plan fees prepaid by Customer as liquidated damages. Access LLC retains all rights to any other legal remedies it may have against Customer. Customer may cancel Maintenance Plans billed on an annual basis upon sixty (60) days prior written notice to Access LLC.

13. Limitation of Liability

ACCESS INC.’S LIABILITY FOR FAILURE OF PERFORMANCE HEREUNDER SHALL BE CORRECT PERFORMANCE OF SERVICES INCORRECTLY PERFORMED. IN NO EVENT SHALL ACCESS INC.’S LIABILITY EXCEED THE TOTAL CHARGES PAID BY CUSTOMER FOR MAINTENANCE PLAN SERVICES OR OTHER SERVICES PROVIDED HEREUNDER. ACCESS INC. ASSUMES NO OTHER LIABILITY NOR PROVIDES ANY INDEMNIFICATION EXCEPT AS MAY BE SPECIFICALLY PROVIDED FOR IN THESE TERMS AND CONDITIONS.

14. Consequential Damages

IN NO EVENT SHALL ACCESS INC. ASSUME ANY LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION OR LOSS OF DATA, WHETHER ANY CLAIM IS BASED UPON THEORIES OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHERWISE.

15. Warranties

ACCESS INC.’S OBLIGATIONS HEREUNDER ARE IN LIEU OF AND EXCLUDE ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

16. Force Majeure

Access LLC shall not be liable or responsible for cost, expense or damage due to a delay in the performance of services hereunder, where such delay is due to causes beyond its reasonable control, including, but not limited to natural disasters, acts of government after the date of these Terms and Conditions, power failure, acts of God, labor disputes, riots, acts of war, epidemics, or material and transportation shortages.

17. Non-Solicitation

Customer shall not solicit, directly or indirectly, or employ any employee of Access LLC for the term of the Maintenance Plan, during the period any other such services are being provided to Customer and for a period of one (1) year after the expiration or termination of the Maintenance Plan or services.

18. Governing Law

These Terms and Conditions shall be governed by and performance construed in accordance with the laws of Wisconsin. Any litigation necessitated as a result of claim pertaining to this Agreement shall be brought in the state or federal courts located in Winnebago County, Wisconsin.

19. Wisconsin Lien Notice

AS REQUIRED BY THE WISCONSIN CONSTRUCTION LIEN LAW, CLAIMANT HEREBY NOTIFIES OWNER THAT PERSONS OR COMPANIES PERFORMING, FURNISHING, OR PROCURING LABOR, SERVICES, MATERIALS, PLANS, OR SPECIFICATIONS FOR THE CONSTRUCTION ON OWNER’S LAND MAY HAVE LIEN RIGHTS ON OWNER’S LAND AND BUILDINGS IF NOT PAID. THOSE ENTITLED TO LIEN RIGHTS, IN ADDITION TO THE UNDERSIGNED CLAIMANT, ARE THOSE WHO CONTRACT DIRECTLY WITH THE OWNER OR THOSE WHO GIVE THE OWNER NOTICE WITHIN 60 DAYS AFTER THEY FIRST PERFORM, FURNISH, OR PROCURE LABOR, SERVICES, MATERIALS, PLANS OR SPECIFICATIONS FOR THE CONSTRUCTION. ACCORDINGLY, OWNER PROBABLY WILL RECEIVE NOTICES FROM THOSE WHO PERFORM, FURNISH, OR PROCURE LABOR, SERVICES, MATERIALS, PLANS, OR SPECIFICATIONS FOR THE CONSTRUCTION, AND SHOULD GIVE A COPY OF EACH NOTICE RECEIVED TO THE MORTGAGE LENDER, IF ANY. CLAIMANT AGREES TO COOPERATE WITH THE OWNER AND THE OWNER’S LENDER, IF ANY, TO SEE THAT ALL POTENTIAL LIEN CLAIMANTS ARE DULY PAID.

19. Severability

If any section or part of these Terms and Conditions is or becomes illegal, unenforceable or invalid, then the such part or section shall be struck from these Terms and Conditions and shall not affect the remaining parts or sections.

20. Successors and Assigns

All covenants and provisions contained in these Terms and Conditions shall bind and inure to the benefit of the parties and their respective successors and assigns.

21. Authority

Customer represents to Access LLC that it is the owner of the Equipment or, if not the owner, that it has full authority to enter into these Terms and Conditions.

22. Modifications

Except as may be specifically provided for herein, any agreement which modifies, changes or supplements these Terms and Conditions, or any documents referenced herein, shall only be valid if in writing and signed by a duly authorized representative of Access LLC.

23. Statute of Limitations

No action arising out of these Terms and Conditions shall be brought by Customer more than one (1) year after the cause of action has accrued.

24. Complete Agreements

These Terms and Conditions, which include any Schedules and/or Proposals attached hereto, represent the entire final and complete agreement between the parties with respect to the subject matter herein and supersede all prior or contemporaneous oral or written communications, representations, understandings or agreements relating to this subject. To the extent Customer’s purchase order or other written order request contains competing terms and conditions, the terms set forth herein shall govern.

Maintenance Services Terms and Conditions