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Time and Material Service Agreement E T.N
<br /> Terms and Conditions TTM Powerina Business Worldwide
<br /> 1. DEFINITIONS: As used in this Time and Material Service Agreement 10. SUBCONTRACTING: Eaton Corporation reserves the right to subcon-
<br /> ("Agreement"):(1.1)"Power Module"shall mean the electronics portion of a tract any portion of the services provided for under this Agreement without
<br /> UPS;(1.2)"Battery"shall mean the electric storage battery portion of a UPS; the prior consent of Customer.
<br /> (1.3)Power System shall mean the Power Module and Battery;(1.4)"Proper"
<br /> 11. CONFIDENTIAL INFORMATION: Each party acknowledges that it may,
<br /> and all of its derivative forms shall mean in accordance with published Eaton in the course of performance of this Agreement,be exposed to or acquire
<br /> Corporation.specifications.(1.5)"Purchaser"or"Customer"shall mean the
<br /> purchaser of this Agreement.(1.6)"Contractor"or"Eaton Corporation Global information which is proprietary to or confidential to the other party,includ-
<br /> Services"shall mean,Eaton Corporation a Delaware corporation,with an ing but not limited to,data relating to the products,equipment,inven-
<br /> offce located at 8609 Six Forks Road,Raleigh,NC 27615. tions,discoveries,trade secrets,secret processes,financial data,computer
<br /> software,know-how,methods,marketing information and any other data
<br /> 2. COVERED EQUIPMENT: "Covered Equipment"shall mean the Power or information in any form relating to the business affairs of either party,in-
<br /> System equipment listed on the front page of the Time and Material Service cluding the provisions of this Agreement("Confidential Information"). The
<br /> Agreement,or on separate titled page incorporated into this Agreement parties agree to hold Confidential Information in strict confidence and not to
<br /> 3. HOURS OF SERVICE: Eaton Corporation will provide service use Confidential Information for its own benefit or disclose it to third parties
<br /> during the hours noted on the Time and Material Service Rate Schedule, without the written consent of the other party. Confidential Information
<br /> attached hereto as Attachment X-1 and incorporated herein by reference. shall not include information:(a)which is already known to the other party
<br /> Contractor's observed holidays shall be the same as public holidays for or is publicly available at the time of disclosure;(b)is disclosed to recipient
<br /> Federal employees as established by U.S.Federal law(5 U.S.C.6103). by a third party who is not in breach of an obligation of confidentiality;or(c)
<br /> becomes publicly available after disclosure through no act of the recipient.
<br /> 4. LABOR AND MATERIAL RATES: Customer shall be billed as per Eaton 12.INDEMNITY: Subject to the limitations of liability in Section 13 hereof,
<br /> Corporation Time and Material Rate Schedule,Attachment X-1. Eaton Corporation shall defend,indemnify and hold harmless Customer,its
<br /> 5. CUSTOMER'S RESPONSIBILITY: officers,employees and agents,from and against any and all claims,liabili-
<br /> ties,damages,demands,losses,causes of action and suits,including reason-
<br /> A. Communication-The Customer shall contact Eaton Corporation's able attorney's fees incident thereto,to the extent they result directly from or
<br /> Customer Reliability Center(1-800-843-9433,option#1)regarding all out of:(1)any injury to or death of any person or damage to or destruction
<br /> service requests and all other matters arising out of or relating to this of any property caused by the negligent acts,errors,omissions or willful
<br /> Agreement. misconduct of Eaton Corporation.,its agents or employees;and(21 any viola-
<br /> B. Safety-The Customer shall,at all times during the provision of ser- tion of federal or state regulations,orders,rules or the violation of any other
<br /> vices hereunder,have a representative present at the maintenance governmental entity by Eaton Corporation,its agents or employees.
<br /> site at no cost to,and solely for the safety of Eaton Corporation. 13.LIABILITY:In no event shall Eaton Corporation or Customer,or their
<br /> C. Access-In order that Eaton Corporation may perform its oblige- respective officers,directors,employees or agents be liable to the other for
<br /> tions under this Agreement,Customer shall grant ready access to the any incidental,indirect,special or consequential damages,such as,but not
<br /> Covered Equipment subject to reasonable security requirements. limited to,delay damages,lost profits or lost opportunity damages,resulting
<br /> from or in connection with any claim or cause of action,whether brought in
<br /> 6.TERM ANDTERMINATION: This Agreement and all that is stated herein contract or in tort,even if Eaton Corporation or Customer knew or should
<br /> shall expire upon completion of services hereunder or ninety(90)days have known of the possibility of such damages. Under no circumstances
<br /> from the date of the Time and Material Service Agreement,except that any shall the aggregate liability arising out of or in connection with this Agree-
<br /> provisions that shall naturally continue shall not expire. Notwithstanding ment exceed the price paid hereunder for the goods and services provided.
<br /> the foregoing,either Customer or Eaton Corporation may terminate this
<br /> Agreement at any time upon fifteen(15)days written notice to the other, 14. PAYMENT:All payments are due net 30 days in full from date of invoice,
<br /> subject to provision of Section 14 hereof. and any payment not made when due shall be subject to an interest charge of
<br /> 1.5%per month or fraction thereof,or maximum permitted by law,whichever
<br /> 7. INSURANCE: During the term of this Agreement,Eaton Corporation at its is less. Customer shall be liable for expenses including reasonable attorneys'
<br /> own cost and expense,shall obtain and maintain in full force and effect the fees,associated with collection proceedings for non-payment.
<br /> following insurance with sound and reputable insurers:(1)Worker's Com-
<br /> pensation insurance in accordance with the statutory requirements of the 15.TAX: Contractor's price is exclusive of any applicable tax.All orders will
<br /> state in which the maintenance is to be performed;(2)Automobile Liability be subject to all applicable sales tax unless a current tax exemption certificate
<br /> insurance on all motor vehicles licensed for highway use,both owned and is on file with Eaton Corporation covering that state shown in the ship-to ad-
<br /> non-owned and,(3)Comprehensive Liability insurance for bodily injury and dress or service location of the Customer's purchase order or the installation
<br /> property damage. location of the Covered Equipment under this Service Agreement.
<br /> 8.WARRANTY: Eaton Corporation shall perform all services in a profes- 16. BATTERIES/PARTS: In order to comply with federal,state and local
<br /> sional and workmanlike manner. Eaton Corporation warrants to repair or government regulations,batteries and parts removed for replacement shall
<br /> replace defective materials and correct defective workmanship reported be Eaton Corporation property and Eaton Corporation shall promptly and in
<br /> to Eaton Corporation and/or diagnosed by Eaton Corporation personnel accordance with applicable regulations dispose of such batteries and parts.
<br /> during the term of this Agreement. Eaton Corporation warrants its correc- Maintenance parts used from Customer-owned spare parts kit shall be
<br /> tive maintenance and spare parts to be free from defects in material and replaced by Eaton Corporation upon customer approval per Eaton's current
<br /> workmanship for a period of ninety(90)days from the completion date of parts price list.Replacement parts shall be new or of the same quality as
<br /> the repair or replacement endeavor for which those repair materials and/ new.
<br /> or equipment were used. In the event the materials or equipment fails to 17. FORCE MAJEURE: Contractor shall not be liable for any failure to
<br /> meet its published specifications due to a defect in material or workman- deliver,or delay in delivering services to Customer to the extent that such
<br /> ship covered by this Warranty,Eaton Corporation will repair or replace the failure or delay results from causes beyond its reasonable control including,
<br /> warranted materials or equipment at no cost to Customer for the material without any limitation,any act of God or force majeure,war,revolution,
<br /> repaired or replaced. This Warranty shall not apply to any Power Module riot,civil commotion,or any applicable governmental or judicial law or
<br /> and/or Battery that has been subject to damage caused by accident,fire, regulation,order or decree.
<br /> flood,lightning,vandalism,acts of God,Customer's neglect,misuse,misap-
<br /> plication,incorrect connection or external damage;or that has been subject 18.GENERAL:The terms and conditions of this Agreement cannot be
<br /> to repair or alteration by Customer(or a third party)not authorized by Eaton modified or waived except by a writing signed by the parties hereto and
<br /> Electrical Inc. in writing. THIS WARRANTY IS CUSTOMER'S SOLE REMEDY waiver by Eaton Corporation or Customer of any provision hereof in any
<br /> AND IS EXPRESSLY IN LIEU OF,ANDTHERE ARE NO OTHER,EXPRESSED one instance shall not constitute a waiver as to any other instance. Any
<br /> OR IMPLIED GUARANTEES OR WARRANTIES INCLUDING ANY IMPLIED provisions herein that shall naturally survive termination of this Agreement
<br /> WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PUR- shall continue in full force and effect.If a provision of this Agreement is
<br /> POSE. Equipment supplied,but not manufactured by Eaton Corporation, invalidated for any reason,this Agreement remains binding except for such
<br /> is warranted solely by the equipment manufacturer. Eaton Corporation invalid provision. This Agreement shall be construed in accordance with
<br /> obligation under said Warranty is conditioned upon receipt of all payments and governed by the laws of the State of North Carolina.Customer and Ea-
<br /> due from Customer including interest charges,if any. ton Corporation hereby agree that all disputes arising out of this Agreement
<br /> shall be submitted solely to the jurisdiction of the State and Federal Courts
<br /> 9.ASSIGNMENT: Customer shall not assign this Agreement or any of its located in Wake County,North Carolina.
<br /> rights hereunder without the prior written consent of Eaton Corporation.
<br /> Eaton Corporation Time and Material Service Agreement MZ161007EN.Revision:December 2015„Page 3 of 4
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