Terms & Conditions Agreement

 

  1. Agreement: Flame Resistant Garments, Inc. d/b/a Code Red Safety and Rental (“CRS”) hereby provides to the customer (the “Customer”), and Customer hereby agrees to the sales of products (“Products”) and/or services, including, but not limited to rentals, training, field service, repairs, and testing (“Services”)  provided by CRS as defined by the Sales Agreement (“Agreement”) under the following terms and conditions:
  2. Contractual Relationship: CRS shall operate as an independent contractor in performing Services under this Agreement.  No personnel furnished by CRS in performing Services shall be considered employees or agents of Customer.
  3. Equipment Ownership: Title to the Equipment used by CRS in providing Services shall at all times remain with CRS or CRS’ contractor.
  4. Equipment Leasing: In the event Rental Equipment is lost, damaged, or otherwise made unusable during the lease period, as determined exclusively by CRS, Customer shall pay the lesser of the cost to repair the Rental Equipment to its pre-rental condition (normal wear and tear excepted) or the entire replacement cost of the Rental Equipment. Customer may be liable for loss of rentals relating to the Rental Equipment being unavailable for leasing until CRS obtains a repaired or replacement unit; CRS will use all reasonable efforts to minimize the period of lost rental. Customer shall use Rental Equipment at the location designated at the time of rental; otherwise, the address on file will be used if no other address is provided. Customer must notify CRS if Rental Equipment is moved to another location. Customer is responsible for paying the rental rate as agreed for the period under lease regardless of whether the Rental Equipment was used by Customer. Rental charges will continue to accrue until the Rental Equipment is returned to CRS. Customer may not deny CRS reasonable access to Customer’s premises where Rental Equipment is used in order to locate and inspect Rental Equipment, and CRS may recover such equipment if Customer is in default under the terms of this Agreement. Customer shall not pledge or encumber Rental Equipment in any way, as title to such equipment shall remain with CRS.
  5. Employee/Contractor Leasing: Customer understands that leasing personnel/contractors to businesses is a key component of CRS’ overall business and one in which it has a significant investment.  As such, for 24 months after the last date on which any employee or for 12 months after the last date on which any contractor has been leased by CRS to Customer, Customer shall not directly engage, hire or contract such person.  In the event of a breach of this section, Customer shall pay CRS a lump sum equal to the latest billing rate per hour used by CRS to Customer for that person times 2080 hours.  Notwithstanding the foregoing, given the significant potential damage caused to CRS, which may be difficult or impossible to quantify, CRS may still seek immediate injunctive relief against Customer, without the necessity of posting bond, to enjoin the breach.  This section shall survive the completion of services rendered to Customer under terms of this Service Agreement for a period of three (3) years.
  6. Product Ownership: Title to the Product shall be based solely on the terms and conditions of the transport and delivery.  Freight on Board terms shall apply, as agreed in the Agreement.  Customer is liable for insuring the value of Product at the point ownership title transfers from CRS to Customer.  CRS shall secure insurance for Product value prior to ownership transfer.
  7. Charges:
    1. Service Charges:  Customer shall pay CRS for Services rendered or pursuant to the Agreement at the rate set forth in that Agreement.  Customer will be billed by CRS in progress billings if Services are performed over an extended period or at the conclusion of Service.  Service rates shall not be reduced due to Customer’s non-productive time or other factors not under the control of CRS.
    2. Product Charges:  Customer shall pay CRS for Product purchased, together with all delivery, handling, installation or other costs incurred in connection with providing Product for Customer use.  Such charges may include additional fees for special requests and services provided at Customer’s request.  Customer will be billed by CRS upon shipment of Product to Customer, whether directly by vendor, CRS or some third party.  CRS shall not be liable for price abatements, credits or other fee reductions if Product is not in operating condition upon delivery to Customer due to transport, shipping or any other cause beyond CRS’ reasonable control.
    3. Late Charges: Unless otherwise agreed in writing, if any Customer obligation hereunder is not paid when due (service charges within fifteen (15) days and product, rental and other charges within thirty (30) days of invoice date), Customer agrees to pay a late charge of (2%) of the amount of the overdue payment per month or part thereof in addition to the amounts past due or the maximum rate permitted by law, whichever is less.  In addition to all other available rights and remedies, if Customer fails to make any payment when due, CRS shall have the right to recover from Customer all amounts due hereunder, together with CRS’ collection costs and reasonable attorney’s fees.  Manpower service invoices are due and payable within 15 days of the invoice date.
    4. Recalibration /Evaluation & Other Fees:  In addition to repair fees, Customer may be required to pay a one-time recalibration or evaluation fee.  If Customer elects not to pursue repair of Equipment based upon the repair estimate provided by Code Red Safety, Customer will be responsible for an evaluation fee.  If Customer fails to respond within 7 calendar days to verbal or written requests for approving repairs based upon estimates, Customer may be charged a storage fee for holding the Equipment or the Equipment may be summarily returned to Customer subject to the evaluation fee due.  Storage fees shall be charged at the then-current rate.  Code Red Safety may elect to hold Customer Equipment until all such outstanding payments due from Customer are paid.  Storage fees shall accrue and be payable until such time as full payment is received by Customer.  Customers may also pay fees for damage repair or excess cleaning time when equipment is returned in a non-rentable condition.
  8. Taxes and Indemnification: Customer agrees to pay when due any and all taxes and governmental charges of any kind, including federal, state, county, or municipal, which may be levied and/or assessed against the types of services contracted Product Sale and interest and penalties, if any, on such taxes or charges, and Customer will at all times fully protect, indemnify, and hold CRS and its successors and assigns harmless from any such taxes, charges and interest and penalties thereon.
  9. Insurance: Customer, at its own expense and at all times, shall maintain liability insurance in such minimum amounts and with such deductibles as CRS may require, insuring against all claims, actions, liabilities, damages, losses, costs that may be asserted or inclined as a result of Services provided by CRS.  Unless otherwise specified, such minimum coverage amounts may not be less than $2,000,000 for general liability coverage.  Such insurance shall be written through companies reasonably acceptable to CRS, shall include a contractual liability endorsement, and shall name CRS as an additional insured. Upon request by CRS, Customer shall provide evidence of all such insurance. 
  10. Default: If Customer fails to make any payment when due, Customer becomes insolvent or makes an assignment for the benefit of creditors, files a Petition in Bankruptcy, a receiver is appointed for the Customer’s business, or if Customer fails to comply with any of the other terms or conditions of this Agreement, such shall constitute a default hereunder and CRS may thereupon, in addition to all other available rights and remedies: (1) declare all repairs hereunder, whether completed or in process, are immediately due and payable; (2) terminate this Agreement; (3) terminate providing services to Customer; (4) terminate any Rental Equipment leases and recover such equipment from Customer, and (5), collect all costs and expenses incident to all collection costs, including reasonable attorney’s fees and court costs.
  11. Acceptance: Customer represents and agrees that the Equipment/Products/Services provided are those it requested and are suitable for the purposes set forth exclusively by Customer. Customer acknowledges that it, in its sole discretion, determined the scope, nature and extent of the services contracted with, products purchased or equipment rented from CRS.  CRS does not represent that the services contracted, products purchased or equipment rented are suitable, appropriate or comply with any legal, contractual, or other requirements binding the Customer.   Customer expressly disclaims reliance upon any statements, representations or warranties made by CRS.
  12. Operation: Customer agrees to comply with all operation and maintenance instructions provided by CRS or manufacturer for the use of Product and agrees to comply with such additional operating and maintenance instructions as CRS or manufacturer may specify from time to time. 
  13. Delivery and Return: All Product is shipped FOB shipping point.  Unless Customer notifies CRS to the contrary within 24 hours after obtaining Product, CRS shall conclusively presume that the Product was delivered to Customer in good and safe operating condition.  If there is a defect or problem with the Product delivered, Customer shall contact CRS and inform it of the nature of the problem.  CRS, in its sole discretion, will determine whether to issue a Return to Vendor Authorization (“RMA”) number.  Customer may return Product to CRS using a valid RMA# at Customer’s cost to 6205 Indianapolis Blvd., Hammond, IN 46320 (“Corp. Address”). Prior to shipment, Customer shall insure Product for the value indicated on the Sales Agreement.  Customer shall return Product to CRS using standard industry practices for packing and shipping.  RMA #s are only valid for 30 days after issuance.  Other than warranty issues covered specifically by the manufacturer, CRS shall be the sole judge to determine the proper remedy.  Any additional costs involved in processing the return will be borne by Customer. If a RMA number is not provided Customer, it may not return Product to CRS.  All RMA returns are subject to a restocking fee of up to 30%, which is based on the item returned.  Non-stock or custom Product orders are NOT returnable, unless CRS gives Customer advanced, written approval before Product shipment that CRS will accept return.  If Product is shipped to CRS without first obtaining a RMA number, CRS may: a) retain the Product until Customer provides a shipping number to charge the return transport fees, or b) return Product to Customer and bill Customer for return shipping charges.  In no way, will CRS be obligated to offer Customer a credit, abatement, discount or other form of rate reduction, nor will CRS be obligated to repair or replace such item, whether or not a RMA number is authorized.  Customer is obligated to pay all amounts due on the original Product Sale Agreement.  If CRS determines a credit or other form of fee reduction is appropriate, a credit memo will be issued to Customer.  Where Customer is not present or does not sign a pickup rental form attesting to the equipment provided for rental pickup, Customer is subject to the physical inventory taken by and judgment of CRS, in its sole discretion, of the type, quantity, and condition of equipment returned.
  14. Exclusive Remedy: Customer specifically understands and agrees that Customer’s sole and exclusive remedy against Code Red Safety or Code Red Safety’s officers, agents, or employees, if any, shall be limited to the repair of Equipment or the replacement of defective parts or repair or replacement of rental Equipment, as determined by Code Red Safety at its sole discretion, or the return of any service fees paid by Customer for services rendered.  Customer specifically understands and agrees that no other remedy (including but not limited to claims for incidental, special, consequential, or punitive, damages, for any cause whatsoever) shall be available to Customer.
  15. Conflicts and Ambiguities:  If there is a conflict or ambiguity amongst this Agreement and any other document related hereto, the terms and conditions of this Agreement shall control.
  16. Disclaimers
    1. General Disclaimer of Liability: TO THE FULLEST EXTENT ALLOWED BY LAW, CUSTOMER SPECIFICALLY UNDERSTANDS AND AGREES THAT CRS SHALL NOT BE LIABLE TO THE CUSTOMER, WHETHER SUCH LIABILITY IS BASED ON NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, CONTRIBUTION, BREACH OF CONTRACT, OR ANY OTHER THEORY OF LIABILITY—FOR ANY ACT OR OMISSION RESULTING IN RESPECT TO THE PREPARATION FOR PRODUCT, DELIVERY, OR SERVICING FOR ANY INJURY, DEATH, LOSS OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED DIRECTLY OR INDIRECTLY BY CRS, THE SERVICES PROVIDED  OR THE EQUIPMENT USED IN PROVIDING SUCH SERVICES OR PRODUCT SOLD OR RENTAL EQUIPMENT PROVIDED, BY ANY INADEQUACY THEREOF OR ANY DEFECT OR DEFICIENCY THEREIN, RELATING TO THE SERVICES PROVIDED, STORAGE, OPERATION, MAINTENANCE OR USE OF PRODUCT OR RENTAL EQUIPMENT. CUSTOMER IS SOLELY RESPONSIBLE FOR THE PROPER USE OF RENTAL EQUIPMENT AND REPRESENTS THAT PERSONS USING SUCH EQUIPMENT ARE COMPETENT TO DO SO. CRS SHALL NOT BE RESPONSIBLE FOR ANY HARM, INJURY OR DEATH TO ANY CUSTOMER EMPLOYEE, CONTRACTOR, OR AGENT OR ANY OTHER THIRD PARTY RESULTING DIRECTLY OR INDIRECTLY FROM CUSTOMER’S OR ANY THIRD PARTY’S USE OF RENTAL EQUIPMENT. IT IS THE CUSTOMER AND CRS’ INTENT TO ABSOLVE AND PROTECT CRS AND ITS OFFICERS, AGENTS, AND EMPLOYEES TO THE FULLEST EXTENT BY LAW FROM ANY AND ALL LIABILITY OF WHATEVER KIND OR NATURE.
    2. Disclaimer of Warranties: CRS MAKES NO REPRESENTATION OR WARRANTIES WHATSOEVER IN RESPECT TO ANY SERVICES PROVIDED OR PRODUCT OR EQUIPMENT RENTAL HEREIN, AND CUSTOMER HEREBY EXPRESSLY WAIVES TO THE FULLEST EXTENT ALLOWED BY LAW ANY WARRANTY OR REPRESENTATION, WHETHER EXPRESS OR IMPLIED, AS TO THE SERVICES, PRODUCT, RENTAL EQUIPMENT INCLUDING WITHOUT LIMITATION, ANY WARRANTY OR REPRESENTATION AS TO THE EFFICACY OF THE SERVICES RENDERED, DESIGN, QUALITY OR CONDITION OF THE PRODUCT, ANY WARRANTY OF MERCHANTABILITY OR FITNESS OF THE PRODUCT FOR ANY PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES EXPRESSED, IMPLIED AND STATUTORY.  CUSTOMER CONFIRMS THAT IT HAS SELECTED THE PRODUCT ON THE BASIS OF ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS RELIANCE UPON ANY STATEMENTS, REPRESENTATIONS OR WARRANTIES MADE BY CRS, AND CUSTOMER ACKNOWLEDGES THAT CRS IS NOT A MANUFACTURER, ASSEMBLER, VENDOR OR CONSULTANT OF ANY PART OF THE PRODUCT.  Notwithstanding the foregoing, CRS does provide a 30-calendar day warranty on repairs performed on Customer repair equipment, unless otherwise expressly limited or disclaimed by CRS to Customer.
  17. Mutual Indemnification: To the fullest extent allowed by law, Customer and CRS (each, the “Party”) shall indemnify, hold harmless and defend each other and the other party’s shareholders, directors, officers, employees and agents (“Other Party”)  from and against any and all claims, actions, liabilities, damages, losses, and costs, including but not limited to attorney’s fees that may be incurred by the Other Party as a result of actions taken or inaction by the Party or anyone contracted or engaged by the Party to perform Services pursuant to this Agreement.  Such indemnification includes, the use, possession, operation, condition, maintenance, repair, and return of Product, including without limitation, any such claims arising out of alleged negligence or any conditions caused or created in whole or in part by the Party, or anyone contracted or engaged by the Party.  The indemnification shall survive termination of this Agreement.
  18. Governing Law: Except as otherwise required by the laws of any jurisdiction in which Equipment is located, this Agreement will be governed by and construed in accordance with the laws of the State of Indiana, and any claim or dispute relating to this Agreement shall be determined exclusively by a court in Lake County, Indiana.
  19. Entire Agreement: The terms set forth herein and any Additional Terms & Conditions hereto constitute the entire Agreement between CRS and Customer with respect to the Services rendered and shall not be amended except in writing as agreed by both parties.
  20. Acceptance:  Acceptance of the goods and/or services provided in accordance with this order constitutes acceptance of the terms & conditions stated herewith.