2001-101 Public Safety UPS Maintenance AgreementRESOLUTION 101-2001
C~
A RIiSOI,UTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM
BEACH, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND VILLAGE CLERK
7'O hNTER INTO AN AGREEMENT WITH POWERWARE CORPORATION, D/B/A
1'OWERWARE GLOBAL SERVICES, ATTACHED AS EXHIBIT "A", WHICH AGREEMENT
1S FOR THE PURPOSE OF SECURING THE SERVICES OF POWERWARE CORPORATION,
U/13/A POWERWARE GLOBAL SERVICES, FOR MAINTENANCE OF THE PUBLIC SAFETY
DEPARTMENT UNINTERRUPTED POWER SUPPLY; AND, PROVIDING FOR AN
EFFECTI V E DATE.
BI; IT KESOLVED BY THE VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA:
Section 1. The Village Council of the Village of North Palm Beach, Florida, does hereby approve the
Agreement with Powerware Corporation, d/b/a Powerware Global Services, attached as Exhibit "A",
which agreement is for the purpose of securing the services of Powerware Corporation, d/b/a Powerware
Global Services, for maintenance of the Public Safety Department uninterrupted power supply.
Section 2. The Mayor and Village Clerk are hereby authorized and directed to execute the
Agreement with Powerware Corporation, d/b/a Powerware Global Services, set forth in Exhibit "A"
for and on behalf of the Village of North Palm Beach.
Section 3. This resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED THIS 13th DAY OF DECEMBER, 2001.
(Village Seal)
ATTEST:
• VILLAGE CLERK
~ P_O_W_E_ _ ~_ _
GLOBAL SER~/ICES
.:...r
PENDING RENEWAL A 221525 Include AM>tchtd Amendment ~-
INVOICE i0. ttuSTOMEW INStALI SRE:
Compeay N,roe: Village 01 NOAh Palm Beach e,s,p.ny N,,,w:
sa..t: 501 US Nighway 11 tt,eN;
eery: North Palm Baaeh
Stak: FL 21p: 33108 shtr:
OentM: Opp.
Mr: MI:
FcI r E-Aq/ : fav/ E-Mae:
PAYMENT TERM SEIEGTFD: X ONE YEAR ~ MUlT4YEAR SVA ~% October 7, 1007 End Oata: September 30, 2002 ~
FAYMEIrf cruc: X ANNUAL ~ MVLT4YEAR IREIAT L..J ARaEAaE (OOV'T.ONLt~ ~ MV3
PUnCNASE 0110ER NVMBEA: Tex Exempt CeNmcatan Abtaclwd
lbT OF t7DYEaED EQUPMFiM
a" P'°s"nL1rle ModN Sm1 ServkeCfgiu CPM IA,aMMwlPfla Tod Pose
t Powerware Plw lq ECMiZElA01 PowetGro Regwrra Plua 7x!! 1 il,/56.00
8,/56.00
~ t Yeu CorreoNwe MaiM.
Pan. Labor a uvs INCLUDED
~ Mnwl UPS PY INtt
! MtxMl PY INCLUDED
5 2YtR Di lOHR Res INCLUDED
cff ATTAd1ED SNEtTS: POwERNARE STANDARD TERMS AMD CoNgrtgNi AFPLr NET TOTAL• 4,00
>3tr Apeemnr+, rorrtaa 1tirA rks lerau ow als am'aeAel deetr meek part ojtiFh Ajrrsment eoeMUwta Ms aairs
pmrtisr seed xAsC exelxdve[y ca,rro7 tAs reJaflonratp ojAe porNa, >sddi rssma.o thu.ip~ennert fYW.a p.rprf~Mrd~ad~rerwr ow uu
en or rssnr aide o C,utomu i Iertalare Ordsr,As+O net k binding
`V 'CUSTOMER/PURCHASER
'I~ ceroparry Name: Vill f o th Palm Beach
SgnaNn: iy
tare: 1
Metae N,ma: David B. Norris
TiW: Mayor __
Fu / E#al:
POWERWARE GLOBAL SERVICES,
A DMSION OF POWERWARE CORPORATION
Lyn,Me:
rate:
rrinrseNaak:
rm.:
Fax 16M,i1:
OWTEDBY: aoyu Kaean Coahxt NanOer
Fkn N,aN: Proehlen Erklronnr Inc. CueaomrNunM:
Sgm+Nr~ r ~° G the XwOer:
Deh a gook /: Aueue N. 1001 Itanrral 131116 ~ MD Te Nue,hw:
Phone NuerEw: T37MLa100 Fax: 717.e?L71M OMr Proteaaea
'COMMEAr7S: ~ '
RaptaaMarM lkaeAee Not Inctueee 'Important taX no0oa: tax IS nol indtMM in tM above purehsae pAa. In order to comply wNh fax replAMioru,
aleaNa tax will De stlded end Heml:td saganhly whM you are involae. Hyou aro rqt liabh tot Mle tnr, please provltN an secKwld lax
exemptbn or teaale oeAMeate wNh This elgned Aq>tamary.
Feroa rsr.~ec,t fmnf.Tq •
•c ~e~~•~?r ;~r_;,vaala>~: an,s~~ad w';t .,~~,: 'e :~o
POWER-WARE
...................._..................................................................................................
GL.oeA,.L SERVICES
AMENDMENT TO
POWERWARE GLOBAL SERVICES
SERVICE AGREEMENT—TERMS AND CONDITIONS (Rev, 1011/00)
Powerware Contract Reference No 221625
RE: Powerware (c!o Precision Environment) Proposal No. 20376 dated 11/16/00
LTS Preventative Maintenance Services
Section 9—Insurance
The following shall be included as follows:
"The policy limits herein shall be at the minimum$500,000 For bodily injury and 5250,000.for property
damage. The Village of North Palm Beach, FL shall be included as an additional insured with respect to
general and auto liability insurance."
Section 17—General
Delete last two sentences and replace with the following:
"This Agreement shall be construed in accordance with and governed by the laws of the State of Florida.
Customer and Powenvare hereby agree that al! disputes arising out this Agreement shall be submitted
solely to the jurisdiction of the State and Federal Courts located in Palm Beach County, Florida."
AGREED:
North Palm Beach
Dept. o ety ( ustomer) Powerware Corporation (Contractor)
By: By:
Name: AI D /�o `� Name: .
Title: 44,oyc A Title:
Date: Date. :~
�oo:oi•�
HlIiNi!1}!IANa
• ~~Y V .L~.Y V~1.~;•
GLOBAL SER~/ICES
-.Y...
AMENDMENT TO
POWERWARE GLOBAL SERVICES
SERVICE AGREEMENT - T'ERM5 AND CONDITIONS (Rev. 1011/00)
Powerware Contract Reference No 221625
RE: Powetware (ero Precision Environment) Proposal No. 20376 dated 11!16/00
1,'PS Preventative Maintenance Services
Section 9 -Insurance
The following shall be included as foliows~
"Thc policy limits herein shall be at the minimum 5500,000 for bodily injury and 5250,000 for property
damage. The Village of North PALM Beach, FL shall be included as an additional insured with respect to
general and auto liability insurance."
Delete last two sentences and replace with the following
"This Agrecmcnt shall be construed in accordance with and governed by the laws of the State ot'Flonda
Customer and Powenvare hereby agree that all disputes arising out this Agreement shall be submitted
solely to the jurisdiction of the State and Federal Courts located in Palm Beach County, Florida."
AGREED:
North Palm Beach
Dept. of Public Safety (Customer)
Powcrware Corporation (Contractor)
By
By:
Name: Name:
Title: Title:
Date: Date:
•
ion:oi•a
_ b9n':!: INaVRNOY.;hN7 NO!>I°,~NA l4d:.'.:.'. ir!ri i. :~f.
• lieutenant Mutz November 22, 2000
Nonh Palm Beach County Public Safety Proposal N 20176 Revised
560 US H.vy l
Nonh Palm Beach, FL 33403
RE: Critical Power System-protection - PowerCare Plus 80
Serial Number. EQOIiZBA04
Wartanry Expiration: Febmary 10, 2001
Dear Lt. Mutz,
1 am pleased to offer the following service proposal Cor your UPS system as referenced above. Precision
Envuonment, Inc. is the manufacturer representative in the state of Florida for Posverware Corporation.
PowerCare Reso^nd Plus Service 52,600.00 -for period of 2/11/01-9/30/01
S4,456.00 per year 10/01/Ol - 9/30/02
Includes: One-Year Cortective Maintenance
Parts, Labor, Travel, Expense for UPS Electronics
24 Hr Emergency Service Dispatch
Maximum 8 hr Response Time
Annual System Performance Check - PM Service
Annual Battery Preventive Maintenance - 40 Batteries
Does Not Include Replacement Batteries
7x24 Around the Clock Coverago
PowerCare service is the most comprehensive service program in the power protection industry, designed
solely to keep you in power. All of our Field Service Engineers are factory trained and kept abreast of any
engineering changes that need to happen to your equipment during the PM visit. Battery care is a necessary
component of any maintenance plan for critical UPS equipment. This will assure you that you have the
battery power you need, when you need it. I have attached a scope of work for [he PM services.
The pricing quoted is valid for (60) sixty days Crom this transmittal date. Powenvare's standard terms and
conditions apply to this proposal. Applicable sales tax is not included. Should you decide on the purchase
of protection Cor your equipment, please forward a purchase order and !will have the documents sent over
immediately. Please remit PO as follows:
Powerware Corporation
c/o Precision Environment Inc.
3230 W. Commercial Blvd. N160
Ft Lauderdale, FL 33309
954-497-3119
Should you have any questions or require Cunher information, please Ceel free to call on me at
727-894-8200. !will be back in the Ft Lauderdale office on Monday, and can be reached at 954.497-31 I S
or via fax at 954-497-3119. ,~~ct
Thank you for this opportunity to be of service
Sincerely,
• Joyce Kaeser
1'01~'ER~~'ARE GLOB:~L SERVICES
SER~'lCE AGREEM1IENT-TER,~IS AND CONDITIONS
I. UF.FiNITIONS• As used in Chu Sen ice A¢recrornc (I.I) "Power hlodulc" shall mean the electronics portion of a UPS: (1.2) "Bantry" shall
mean the electric 5lomet banes portion of a ZIPS: (I.7) Power System shall nrtan the Power Module and Battery; (L41 "Proper" and all of its
lancutivc forms shall mein[ in atcorduna with published Powenvare Global Sen'icts spceifiwtions. (LS) "Purchaser" or "Customer" shall moon the
urrhaxr of this Service Agrcemrnt. (LO) 'Comractor" or "Powero~arc' shall mean Powerare Global Services, a division of Paverwarc
~JlpOfallUn, a DCIa\yarG •'UfpJfal Wll, \Plth Its prlnClpal OftlCe loca«d at SG09 Six Forks Road, Raleigh, NC 27615.
?. ELIGIBILIT\': All equipment that ham espeneneed a lapse in Powenca« service coverage (or factory wartanty eocerace), or has had no service
history with Powerwart within the precious ornery (90) days. is subject to inspation by Powenvare pnor to eligibility (or any service under this
Ag«emcnt. Customer is subjat to chargrs for this inspection service at Powenvare's then turtent Timt and tsla«rial Service Rate Schedule (Refer
to Exhibi[ I-PCS and Auachmcnt X-I).
. •' '
3. COVERED EQUIP~IFYT: "Covered Equipment' shall mean the Power System equipment listed on the from page of the Powenvare Service
4greement, or on separate tided page incorporated into this Agrament. If pre-contras inspection is required for eligibility, a list of Covered
Equipment will be provided at that time and become incorporated into Ihis Agreement.
a. HOURS OF RVI • Po\cer\vart will provide service during the Principal Period o(Maintenance (PPM), which is defined as normal business
hours (hfonday -Friday. S:OU AM to 5:00 Plbl, alternately described as "3xS service') excluding holidays as observed by Powenvare. The
Contracted Period of Ivlaintenancc (CP~p is the PPM along with any additional extended hours of coverage optionally purchased by Cusromer
(alternately described as "ix?a service'") and excludes all Powenvare observed holidays for planned maintenance acticimes. Powenvare observed
holidays are as follows: New Y'ear's Da\•. Martin Luther King Day, Good Friday, M1femorial Day, Independence Day, Labor Day, Thanksgiving Day,
Post Thanksgiving Day, Christmas Eye-Day and Christmas Day.
5 SCOPE OF SFRVICES•
.4. Start-Up Service - ((optionally purchased by Customer, Powenvare will provide Start-Up services durin the CPM1i, for new or relocated
equipment. Stan•Up services \vill br limited to visual and mechanical inspections of the installation, electrical pre-checks, initial equipment
cncrglzation, verification of system operation, and user operational training as defined by Powenvare. Po\s•tnvare reserves the right to invoice
Customer at prevailing rafts for delay's or corection of conditions beyond the control of Powenvare, including but not limited to: postponements,
cancellation, or delays of work while in route to, or at equipment locmlon, performance of service not Covered by equipment wartanty or other valid
ser\-ice agreement, corection of shipping or transi[ damage, correction of ins[allation erors, except where Powenvart has installed or supervised the
Installation of the equipment.
B. Respond Plus Sen'ice • If optionally purchased by Customer, Powenvare will provide maintenance materials and repair labor necessary to
maintain the Covered Equipment In good operating condition during the CPIM. Maintenance parts removed for replacement shall be Po\venvare's
property. Replacement maintenance pans supplied by Powenvare shall become Customer's property. Maintenance parts used of Customer•owned
spare pans kit shall be replaced by Powenvart. Replacement maintenance parts shall be new or if out of production of the same quality as new
(Rt(er to Attachment R-7).
C. kesponst Time -Powenvare will arive at the equipment's location within eight (S) CPM hours following Customer's request for «medial
maintenance, provided the installation Location is \vtthin one hundred (100) mites of a Powenvare sen•iee Iota[ion. If optionally purchased by
^.ustomer, Po\s•ersvare will arrive at the equipment's location within four (4) CPM hours following Customer's request for «medial maintenance,
provided the Installation Location is within fifty (50) miles of a Powenvare service location.
D. Fis'e•Y'ear Full Batten' Cos'erage - If optionally purchased by Customer in conjunction with a Powenvare five (3) year service contract on the
L'PS. and if battery update service has been performed by Powenvare within a pprior four (4) month period, Pow•ens'are will provide UPS battery
remedial service (for replacement of failed batteries or batteries with leu than 80% of its pubblished rated capacity) during the CPM. This battery
coseruge includes all maintenance parts and labor necessary to maintain the Covered Battery Equipment in good operating condition, upon the
(ollowing conditions: (i) The subject L'PS battery system is the Powenvare manufactured, internal batteries or "Ilne•up•and-match" integral valve-
regulatcd cabinet battery system; (ii) the battery has not been subject to ne~vlect, misuse, or misapplication; and (iii) operating conditions,
cnsironment and maintenance is in accordance with manufacturers recorrvnendattons. In no rase shall the coverage period extend beyond five (S)
sears from the installation date of battery update service.
E. Performance Check - If optionally purchased by Customer, Powenvare will pprovide Performance Check of the Po\ver System during the CPhI.
Performance Check may be performed concurtent with remedial maintenance et Powerware's discretion. Scope of UPS Performance Check swill be
based on Po\venvare's recommendations for the paricular Covered Equipment. If separately provided from remedial maintenance, Powenvare's
sole obligation will be to pros'ide Customer with a sixty (60) day period [o schedule the UPS Performance Check, sixty (60) days prior to
commencement of that period (Refer to Attachment R-3 ).
F. UPS Preventive M1talntenance • If optionally purchased by Customer, Powerare will provide scheduled maintenance of the Posner System
during the CPM. Scope of UPS Prevenuve Ivlalntenance, swill bt based on Powerware's recommendations for the particular Covered Equipment.
Powerss'are's sole obligation will be to provide Customer with a sixty (60) day period to schedule the UPS Preventive Maintenance inspection, sixty
(60) days prior to commencement of that period (Refer to Attachment R-2).
C. Battery Preventive Maintenance • If optionally purchased, Powenwart will provide scheduled periodic maintenance of the UPS battery during
the CPhI. Scheduled maintenance may be performed concurtent with remedial maintenance of the Power Module at Po\venvare's discretion. Scope
of Battery Prevenive Main«nance will be based on industry standards and Powenvare's recommendation for the paricular covered equipment.
Powenvart «commends t\s•o (2) inspections visit per year for valve regulated (staled) type systems and four (4) inspections per year for Booded
(wet) type systems. If separately provided from the Poss•er Module remedial maintenance, Powenware swill provide Customer thirty (30) days no[ice
to schedule inspection at a mutually convenient time during the CPM (Refer to Attachments R•4 and/or R•5).
H. ProActive Service Plan - If optionally purchased by 'Customer, Powerare will provide the following services as specifically detailed in
Attachment R-G: corective maintenance covesge, one (1) annual performance check, one (I) annual power protection audit, remote monitoring
advance response service (available only if UPS is configured with a modem,.remote notify, and a customer phone line that runs to the UPS), a
monthly UPS performance report (available only if remote monitoring advance response service activated), web access [o account information and
snc service acttvmy. '
I. UpTime Guarantee - If Po\venvare's Re fommended Service Plan it optionally purchased by Customer, Powenvart guarantees that there swill be
no load loss directly attributable to impropper function or failure of the Powtrwart unintertuptible power supply. Said load must be properly
connected to the Po\verware uninterrupttbie po\vtr suppply, which must be covered by a manufacturer's recommended service plan (Refer to
ttachment Powenvare UpTime Guarantee -Teems and Condntons .
Labor and Material Rates -For any additional services, outside the Scopa of Services purchased for equipment covered under this Agreement,
stoma shall be billed as per Powerware's then curent Timt and Material Service Rate Schedule (refer to Attachment X•I). Contracted Customer
Discount Rates apply only to equipment curtently covered under a Powerware Service Agreement (excludes flat rate quoted services such as battery
update Scrvict, KVA upgrade or modification services).
5. ENGINEERING CHANGES/INFORMATION: All chart es deemed necessary b Powerware, will be installed during scheduled maintenance
visits during the GPM. Other changes, deemed optional by Powenvare, will be offered to the Customer on an as-available, per charge basis. All
information of the Customer shall be dtemtd non-confidential and Contractor will be under no duty of non-disclosure unless both panics execute
Contractor's Mmual ConOdemial Disclosure Agreement:
Powcrware Service Agreement • Temu and Conditions (Rev: 10/01/00) - Page I of Z
7 CUS'f0\IER'CR SPOM1 IBII IT\':
A. Communication -The Customer shall contact Pusecnvarc's Customer Support Scrviec Cemer (I-SUO-SJ3.91J3) regarding all service requests
anJ all other matters arisinS~ out of or relating to this Agrecntcnl.
B. Aluvement - If Covered EquiPntent is moved to another location in the fifty (50) U.S. States (or District of Columbia), coverage will continue
gun the following conditions: (0 Customer shall notify Powenvare in writing at (east thirty (30) days in advance of equi~ment power•down: (ii)
.vcrvvare reserves the right to supervise the povver•down, disconnection, rigging, packing. movement, unpacking, reinstal scion and restart of the
v system. 7-his arvice will be charged at Powenvare's then eurtent Time and Material Service Rate Schedule. (iii) Resumption of coverage
Jer this Agrcemem is subject to acceptance by Posvtnvarr of Covered Equipment at the nav location.
G Safety -The Cusromer shall, m all times during the provision of services hereunder, have a representative present at the maintenance site at no
cost to, and solely for the safety of Powerwarc.
D. Access - In order that Powenvare may perform its obligations under this Agreement, Customer shall grant ready access to the Covered Equipment
sub)ect to reasonable security requirements. ~
.~•'_~
8 TERM AVD TFR~IIVATIOV• This Agreement and all that is stated herein shall automatically be renewed for successive twelve (1?) month
periods at the prices in effect at the time of each renewal. In the event Customer elects not to renew this Agreement, then Customer shall provide
thirty (30) days written notice prior to the renewal date. Customer will bt provided with written notice of renewal sixty (60) days prior to
expiration, stating the prices for the applicable renewal «m, prior to each renewal date. Notwithstanding the foregoing, either Customer or
Powenvare may temtinatt this Agreement at any time upon thirty (30) days written notice to the other, subject to provision I S below.
9. IXSUR.A\CE: During the term of [his Agreement. Powenvare at its own cost and expense, shall obtain and maintain in full force and effect the
following insurance with sound and rtputable insurers: (I) Worker's Compensation insurance in accordance with the statutory requirements of the
slate in which the maintenance is to be performed; (2) Automobile Liability insurance on all motor vehicles licensed for highway use, both owned
and non-owned and, (3) Comprehensive Ltability Insurance for bodily tn)ury and properly damage.
J0. WARRANTV• Posverw•are shall perform all services in a professional and workmanlike manner. Powerare wartants to repair or replace
defective materials and cortect defective workmanship reported to Powtrware and/or diagnosed by Povvenvare's personnel during the term of this
Agreement. Powenvare wartants its eorteetive maintenance and spare pans to be free from defects in material and workmanship for a period of
ninety (90) days from the completion date of the repair or «placement endeavor for which those repair materials and/or equipment were used. In the
event the materials or equipment (ails to meet its published specifications due to a defect in material or workmanship covered by this W'artanty,
Powerware will repair or replace the wartanted materials or equipment at no cost to Customer for the material repaired or reQlaced. This Warranty
shall no[ apply to any Power Module and/or Battery that has been subject to damage caused by accident, fire, flood, lighmtng, vandalism, acts of
God, Customer's neglect, misuse, misapplication, incortect connection or external damage; or that has been subject to repair or alteration by
Cusromer (or a third partyY) not authorized by Powenvare in writing. THIS WARRANTY IS CUSTOMER' SOLE REMEDY AND IS
EXPRESSLY IN LIEU OF, AND THERE ARE NO OTHER, EXPRESSED OR Ih1PLIED GUARANTEES OR WARRANTIES INCLUDING
ANY' IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE. Equipment supplied, bur not manufaeured by
Powenvare, is warranted solely by the equipment manufacturer. Powerware's obligation under said N'artanty is conditioned upon receipt of all
payments due from Customer including interest charges, if any.
I I. ASSIGN \IENT• Nei[her Customer nor Powenvare may assign this Agreement or any of its rights hereunder without prior written consent of the
•htr. Such consent shall not be unreasonably withheld.
~ Cl'BCOVTRACTIV • Contractor reserves the right to subcontract any portion of the services provided for under this Agreement withom the
prior consent o(Cunomer.
J 3. I\ DE\IVITY• Posverware shall defend, indemnify and hold harmless Customer, its officers, employees and agents, from and against any and
all claims, liabilities, damages, demands, losses, causes of action and suits, including reasonable attorney's fees incident thereto, [o the extent they
resuh dirccdy from or out of: (I) any injury to or death of any person or damage to or destruction of any properly caused by the negligant acts,
errors, omissions or willful misconduct of Powenvare, its agents or employees; or (2) any violation of federal or state regulations, orders, rules or the
violation of situ other governmental entity by Powerware, Its agents or employees; or (3) any breach of Wartanty or any negligent performance by
Powenvare o(its obligations under this Agreement.
J4. LI.ABILITY: In no event shall Powenvare or Customer, its officers, employees or agents be liable to the other for any incidental, indirect,
special or consequential damages, such as, but not limited to, delay damages, lost profits or lost opportunity damages, resulting from or in
connection with any claim or cause of action, whether brought in contract or in tort, even tf Powenvare or Customer knew or should have known the
possibility of such damages. The aggregate liability arising out of or in connection with this Agreement shall not exceed the price paid hereunder for
the services.
1 i. PAY111EVT• All payments are due net 30 days in full, and any payment not made when due shall be subject to an interest charge of I.5% per
month or fraction thereof, or maximum permitted by law, whichever is less. Additionally, Customer shall be invoiced for, and shall pay for, all
services not expressly provided for by the terms hereof, such as, but not limited to, sue calls involving no-fault found inspections where no
corrective maintenance was required. IC any pa merit is not made whin due, Powenvare reserves the right to refuse to provide any further services
until such payment and the applicable interest have been received. Powenvare reserves the right to invoice Customer either the full amount due
under This Agreement or in accordance with Posverware's Time and Materials Service Rate Schedule (Attachment X•I) for services rendered,
whichever amount is greater, if this Agreement is terminated by Powerware for non-payment. Customer shall be liable for expenses including
reasonable attorneys' fees and courts costs, associated with collection proceedings for nonpayment. In the event of early termination: A) Customer
will be liable for any services rendered to the reasonable satisfaction of Customer prior to the effective date of termination, and B) Contractor at Its
discretion will provide a credit against any advancr payments received as follows: I) a prorated amount based on the terminated portion of the
fixed-price fee due Powenvare, or 2) an amount bazed on the difference between the amount paid by Customti prior to the effective date of early
termination and the actual cost of service gptions completed (including emergency repair calls) by Powenvare prior to the effective date of early
Iefmlaatl0m.
J_6_ T~;L• Contractor's price is exclusive: of any applicable tax. If Contractor is required [o pay or collect any applicable tax, an additional charge
will be made there (ore and paid by Customer unless Contractor is provided with a proper tax exemption certificate. Contractor will itemize on then
ic~eanENERA~licabletaxesdue. :.
• The terms and conditions of this Agrecmtnt cannot be modified or waived except by a writing signed by the parties hereto and
aver by Powenvare or Customer of any provision hereof in any one instance shall not constitute a waiver as to any other instance. If a provision
of this Agreement is invalidated for any reason, this Agreement remains binding except for such invalid provision. This Agrecmtnt shall be
construed in accordance with and ggoverned by the laws of the State of North Carolina. Customer and Powerware hereby agree that all disputes
arising out o(this Agreement shall be submitted solely to the jurisdiction of the State and Federal Courts located in Wake County, North Carolina.
Powcrware Service Agrccmcnl • Terms and Conditions (R<v: 10/01/00) -Page 3 of 3