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The terms and conditions contained on this webpage will prevail notwithstanding any variance with the terms and conditions or any purchase orders submitted by Customer. 

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Order Terms & Conditions

1.    All orders are subject to the approval of Ban-Koe Companies, Inc. (hereinafter “Ban-Koe”) corporate office in Minneapolis, Minnesota, and are noncancelable. The Terms and Conditions of this Sales Agreement (“Agreement”) shall prevail notwithstanding any variance with the Terms and Conditions of any purchase order or other document submitted by Customer. Customer may continue to purchase products from Ban-Koe from time to time, in which case these Order Terms and Conditions (this “Agreement”) shall govern all future sales between the parties.


2.    Terms are net cash. Bills are due when rendered. A 1 1/2% per month service charge is added to all amounts not paid within thirty (30) days of shipping date. Customer is responsible for any sales or similar taxes, however designated, levied or based on the sale price of the product or service sold, or its use (including state and local privilege or excise taxes), unless it provides Ban-Koe with an exemption certificate. If full payment is not made within ninety (90) days of the shipping date, Customer is responsible for all expenses, including legal fees, incurred by Ban-Koe with regard to collection. Delivery is F.O.B. point of shipment. Risk of loss or damage is passed to Customer upon shipment. Ban-Koe reserves the right to refuse shipment to a Customer who has an unacceptable outstanding balance overdue with Ban-Koe; and/or to stop work on a project until payment is made.


3.    Ban-Koe shall not be liable for delays in delivery due to causes beyond its control. No omission or delay by Ban-Koe at any time in enforcement of its rights hereunder shall be a waiver of such rights, nor shall it affect the right of Ban-Koe to enforce such rights thereafter. 


4.    Customer agrees that if it delays the installation, if any, to focus on another project or to work on an internal issue, or if it delays the installation for any other reason, final payment under the terms of this Agreement is due and payable in full within three (3) weeks of the request for such a delay.


5.    Limited Warranty. Ban‐Koe warrants that all products shall be free from defects in material and workmanship for a period of one (1) year from the shipment date. This warranty is extended to the original end‐user purchaser only and is subject to all the conditions and limitations set forth by the original equipment manufacturer. The above warranty shall not apply to any products or parts thereof in the event of: Damages, defects or malfunctions resulting from misuse, accident, neglect, tampering, unusual physical or electrical stress or from causes other than those relating to normal and intended use,  failure of an end‐ user to provide and maintain a suitable installation environment, or  malfunction resulting from the use of timecards, badges or supplies not approved by Ban‐ Koe or the original equipment manufacturer. Specifically excluded from this warranty are inking rollers, ribbons, light bulbs, fuses and other expendable items of like use.


EXCEPT AS HEREIN EXPRESSLY STATED, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, MADE OR AUTHORIZED TO BE MADE WITH RESPECT TO ANY ITEMS OR SERVICES FURNISHED HEREUNDER. BAN-KOE DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.


Ban-Koe’s obligations under this limited warranty is the diagnosis by Ban-Koe and the repair, replacement, or correction of any non-conforming component of the products or part thereof, at Ban-Koe's option, with such remedy being the sole and exclusive remedy of Customer for breach of this limited warranty, but without prejudice to any other rights that Owner may have under this Agreement or at law Repairs or replacements under this warranty may be made only by Ban-Koe or the manufacturer and will be made during business hours only after Ban-Koe is notified of a problem during the warranty period and determines that it results from defective material or workmanship under this warranty. 


6.    Customer understands that the Agreement may include an estimate of professional services that will be used for planning meetings, software configuration (on or off site), documenting surveys, testing parameter setup, etc. These professional services hours are a good faith estimate only, based upon Ban-Koe’s historical implementation data. Customer agrees that if it uses all the estimated hours and the project is not yet completed, it will have the option to purchase additional hours to complete the project at the agreed upon hourly rate charged by Ban-Koe. Ban-Koe will inform Customer of the progress of the Project as the estimated hours are used. Additionally, if the Ban-Koe Project Manager identifies that Customer is requesting services that are "out of scope" or services that were not included in the hourly estimate, the Ban-Koe Project Manager will bring this to Customer's Project Manager's attention at that time. If the requested services are “out of scope” and Customer agrees to proceed with such services, Customer agrees that it will pay for the additional tasks at the agreed upon hourly rate charged by Ban-Koe for such service.


7.    If this Agreement includes professional services, the following applies: 


During the term and for a two (2) -year period following expiration or termination of this Agreement:


a)    Customer agrees for itself and for its affiliates not to (i) solicit for employment (directly or indirectly) any employee of Ban-Koe or (ii) solicit for employment any former employee of Ban-Koe within one (1) year of the former employee's termination from Ban-Koe.
b)    "Employment" is defined to include, but is not limited to, permanent, temporary, full-time and part-time work for the employer, as well as the employer's hiring of the employee as an independent contractor or consultant, or the employer's use of a third party such as an employment agency to obtain the employee's services.


8.    Excess Product may be returned only with Ban-Koe’s written consent. Prevailing restocking and handling charges will be applied on all returns, in addition to any transportation and freight costs. All non-defective goods must be returned in saleable condition or additional charges will be applied. Returns will not be honored unless covered by a signed credit memorandum. Ban-Koe’s corporate office makes the final decision on all credit matters. Credit only may be given to the customer’s account for unused parts or overages that were deemed to be unneeded during a project. These goods must be returned in their original shipping container along with the original shipping packing materials.


9.    IN NO EVENT SHALL BAN-KOE BE LIABLE FOR ANY LOSS OF PROFITS OR OTHER INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT. 


10.    IN NO EVENT SHALL BAN-KOE’S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE DEFECTIVE PRODUCT PROVIDED UNDER THIS AGREEMENT. THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY WILL SURVIVE EVEN IF ANY OTHER PORTION OF THIS AGREEMENT IS FOUND TO BE INVALID OR UNENFORCEABLE UNDER ANY STATUTE, REGULATION, ORDINANCE, EXECUTIVE ORDER, OR OTHER RULE OF LAW.


11.    This Agreement, combined with any applicable license agreements constitutes the entire Agreement between Ban-Koe and Customer for hardware and software (excluding technical service programs “TSPs”). This Agreement supersedes all prior or contemporaneous representations, negotiations, or other communications between the parties relating to this Agreement’s subject matter. This Agreement may be amended only in writing signed by both parties.


12.    Customer’s obligation for scheduled payments shall commence upon Substantial Completion/Beneficial Use (“SCBU”) implementation as determined in Ban-Koe’s discretion.  Ban-Koe will provide notice to customer upon SCBU.


13.    No action, regardless of form, may be brought by either party more than one (1) year after the cause of action has arisen, except that an action for nonpayment may be brought by Ban-Koe within two (2) years after Customer’s last payment.  The two (2) year limitation to bring an action for nonpayment by Ban-Koe shall begin upon SCBU.


14.    This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Minnesota, excluding laws directing the application of the laws of another jurisdiction. The parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrators shall apply Minnesota substantive law to the proceeding (without regard to the choice of law provisions of any jurisdiction) except to the extent federal law would apply to any claim. Any arbitration proceeding under this Agreement shall be conducted in Minneapolis, Minnesota. Either party also may, without waiving any remedy under this Agreement, seek from any court in Minnesota having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal, or pending the arbitral tribunal’s determination of the merits of the controversy. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute.


15.    Customer must provide written notice to Ban-Koe of any customer testing requirements beyond the standard testing requirements utilized by Ban-Koe.


16.    Customer acknowledges that upon cancellation of subscription for non-payment, Ban-Koe shall have no further obligation to provide monitoring to customer and customer agrees to indemnify and hold Ban-Koe harmless from all resulting injury or damage.


17.    This Agreement, combined with any applicable license agreement(s) constitutes the entire Agreement between Ban-Koe and Customer for the products. This Agreement supersedes all prior or contemporaneous representations, negotiations, or other communications between the parties relating to this Agreement’s subject matter. This Agreement may be amended only in writing signed by both parties.


18.    Customer agrees and is contracting for the minimum term (number of monthly payments ‐ term) listed on the Agreement (page 1).  If the customer ceases to use the system any time during that term, Customer agrees to continue to make monthly payments until term is satisfied OR make one final payment of monthly payment times the number of months left in the term.


19.    In the case of (Customer) company sale, acquisition, or merger Customer agrees to notify Ban‐Koe, protect Ban‐Koe property for proper and timely return to Ban‐Koe, and/or be responsible for the replacement costs and satisfaction of payment obligation.


20.    At the expiration of the initial term, this Agreement shall automatically renew for a term equal to the initial term unless and until a party hereto gives the other party no less than ninety (90) days written notice of termination prior to the expiration of the initial term.  Upon renewal, the Purchase Price paid will be increased by the following:


a)    CPI Adjustment. The Purchase Price or Fee shall be increased at a minimum in the same amount of any increase in the Consumer Price Index during the preceding calendar year.  Such increase shall be calculated by multiplying the current Purchase Price or Fee by a fraction whose numerator is the Consumer Price Index for the twelfth month of the preceding calendar year and whose denominator is the Consumer Price Index for the first month of such calendar year. In no event shall the Purchase Price or Fee be decreased due to changes in the Consumer Price Index. For purposes hereof "Consumer Price Index" shall mean the Consumer Price Index for All Urban Consumers, U.S. City Average, published by the Bureau of Labor Statistics of the United States Department of Labor.


b)    In addition to the CPI, the Purchase Price may also be increased by thirty (30) days written notice from Ban-Koe.  Such increases will be based upon actual increase in cost to Ban-Koe.


21.    All equipment, software leased to Customer under a Lease Agreement remains the property of Ban‐Koe. Any damage or loss due to vandalism, Acts of God (flood, fire, etc.), theft, or intentional misuse is the responsibility of the Customer and/or Customer’s insurance company.  It is the Customer’s responsibility to ensure the equipment and/or take responsibility for any replacement costs due to such incidents.


The Following Provisions Are Applicable To Contractor Purchases


22.    System submittals, if applicable, must have approvals from the architect and/or engineer on the project. These approvals must be forwarded to Ban-Koe for proper corrections, timely shipments and scheduling. No product shipments will be released until Ban-Koe receives the proper approvals.


23.    A pre -lien notice may be sent to the project’s owner as part of standard operating procedure.


24.    All Ban-Koe projects require a pre-installation site inspection (PSI). This inspection assists the installing party in understanding the Ban-Koe shop drawing and manufacturer’s information data sheets. Trained Ban-Koe technicians will conduct the inspection. If Customer is the installing contractor, it is Customer’s responsibility to request the PSI. The PSI must be performed and completed before conduit/wiring/cable/device installation. A sign-off by the installing party is required. If Ban-Koe provides the installation through its own employees or a sub-contractor, the PSI will then be a part of Ban-Koe’s internal procedures.


25.    Unless specifically stated in the body of the proposal, Ban-Koe does not supply or install the wiring necessary for system operation. Ban-Koe is not responsible for resolving wiring problems due to shorts, opens, and/or grounds that occur during the installation of the wiring. However, Ban-Koe will assist in the troubleshooting of wiring problems. Troubleshooting normally occurs during the final connections stage of the project.


26.    Ban-Koe will strive to comply with schedules. Any deadlines must be communicated clearly to Ban-Koe. Ban-Koe is not responsible for timely completion of its work due to causes beyond its control, including delays by the owner or installer. An owner or installer must provide a coordinator or lead contact.


27.    Ban-Koe owns all extra equipment and parts left over after the completion of a project unless the parties agree otherwise. If the equipment and/or parts become extra or unnecessary during the project, the equipment and/or parts may be returned only by using the credit procedures outlined in this Agreement.


28.    Customer should not assume that the products meet code satisfaction. Ban-Koe estimates projects using approved owner provided plans and specifications. The approvals and code satisfaction lie within the plan’s approvals by authorities having jurisdiction, such as city, state, and federal codes. Ban-Koe certifies only that the equipment will operate within the manufacturer’s guidelines. If Ban-Koe is designing a system, it will make preliminary code inquiries and use reasonable efforts to attain code satisfaction; however, it is the owner’s responsibility to obtain code satisfaction and/or approval.


29.    Each system Ban-Koe sells has a corresponding one-line drawing. These drawings show the proper cabling and/or wiring of the system being installed. The installing party must strictly follow these drawings. Any deviations from the drawings may result in the need for re-wiring of a system by the installing party and at the installing party’s expense. Ban-Koe and the installing party shall both take care during the PSI visit to see that this does not happen.


30.    Ban-Koe is responsible for carrying out the following specific labor components: a) PSI; b) final connections to the head end equipment; c) programming of systems requiring such; d) testing of the complete system, with assistance, if needed, from the installing party; e) certification of systems requiring such; and f) owner training. Ban-Koe will be responsible for field device connections ONLY IF SPECIFICALLY STATED IN THE BODY OF THE PROPOSAL. These specific labor components have trip limits, which shall be agreed upon by the parties. If additional trips beyond the necessary agreed-upon trips are required due to the installing party’s lack of preparation, premature request for Ban-Koe to perform PSI and/or final connections, or improper installation, Ban-Koe may charge additional fees to cover additional trip costs.


31.    If Customer uses any Ban-Koe system in a manner that collects, captures, stores, or utilizes, in any way, biometric information of any third-party (including, but not limited to, Customers’ employees), Customer agrees it will first obtain the written consent of such parties in a form substantially similar to the form attached here. Failure to do so is a violation of these Terms & Conditions. Customer further agrees to indemnify and hold Ban-Koe harmless from any third-party claims arising out of or in any way related to Customer’s use of Ban-Koe’s system in a manner that conflicts with this provision or any other provision of this Agreement, or in a manner which violates (or is alleged to violate) any applicable local, state, or federal law related to privacy and/or biometric information. 

 Support Terms & Conditions (TSP)

Annual Technical Support


Customer and Ban-Koe Systems, Inc. (“Ban-Koe”) agree that the terms and conditions contained in section A of these Support Terms and Conditions (this “Agreement”) apply to TSP service for any equipment (hardware) and any software specified in Addendum A. In addition to the terms and conditions in Section A of this Agreement, (a) Section B terms and conditions apply to the equipment, if any, specified in Addendum A; and (b) Section C applies to the software, if any, specified in Addendum A. For clarity, the terms and conditions outlined in this Agreement (“Support Terms & Conditions) are in addition to, and not do not replace, the other terms and conditions generally applicable to Customer and Ban-Koe Systems, Inc., which are set forth in the Order Terms and Conditions and (if applicable) the Service Sales Agreement Terms and Conditions. 


A.    TERMS AND CONDITIONS APPLICABLE TO EQUIPMENT (HARDWARE) AND SOFTWARE

 
Term of Agreement and Termination: This Agreement shall remain in effect until termination by either party. Either party may terminate this Agreement by providing written notice of termination to the other, not less than 180 days prior to the stated termination date. Notice of termination may be provided by posting notice certified mail addressed to the party at the address contained in this Agreement. Individual equipment (hardware) or software may be withdrawn from support by either party with a written notice of amendment provided in the manner of notice of termination without affecting the balance of this Agreement. Individual equipment (hardware) or software may be added by Agreement, as provided above. At the time of each fee renewal invoice under Section 4 below, Price shall be increased at a minimum in the same amount of any increase in the Consumer Price Index during the preceding calendar year.  Such increase shall be calculated by multiplying the current Purchase Price by a fraction whose numerator is the Consumer Price Index for the twelfth month of the preceding calendar year and whose denominator is the Consumer Price Index for the first month of such calendar year. In no event shall the Purchase Price be decreased due to changes in the Consumer Price Index. For purposes hereof "Consumer Price Index" shall mean the Consumer Price Index for All Urban Consumers, U.S. City Average, published by the Bureau of Labor Statistics of the United States Department of Labor and 2) In addition to the CPI, the Purchase Price may also be increased with thirty (30) days written notice from Ban-Koe.  Such increases will be based upon actual increase in cost to Ban-Koe.

1.    This Agreement may be terminated by Ban-Koe without notice, if payment is not received prior to any renewal date as set forth in paragraph 3 below. 


2.    TSP Service Availability:  Regular Service will be made during Ban-Koe’s Service Hours, excluding weekends and Ban-Koe Holidays. For contract-covered onsite service visits, one hour of travel time per call is included. Additional travel time will be billed at the discounted base hourly rate. After Hours Service on weekdays between 5:00 p.m. and 8:00 a.m. and on Saturdays shall be billed at one and a half times the discounted base hourly rate. Service on Sundays and Holidays shall be billed at two times the discounted base hourly rate. 


All parts are covered unless specifically excluded under Section A5. Customer will be charged a minimum of two hours’ applicable rate for non-business hour telephone calls or onsite visits (plus mileage and/or rip charges and any applicable fuel surcharges).


3.    Payment Terms: The fees for service are annual and payable in advance for the initial term of the Agreement. Subsequent renewal fees for annual support will be invoiced sixty (60) days prior to the end of the then-current annual term for prepayment. Charges under this Agreement are payable in advance (except for charges incurred outside of the applicable service availability) and are payable thirty (30) days after date of invoice. Customer is responsible for any sales or similar taxes, however designated, levied or based on the sale price of the product or service sold, or its use (including state and local privilege or excise taxes), unless it provides Ban-Koe with an exemption certificate. Ban-Koe reserves the right to adjust pricing of annual service, the designation of serviceable locations, and the equipment or software serviced. 


4.    Addition of Equipment or Software: Customer may request that equipment and/or software other than that specified in Addendum A be added to this Agreement. If Ban-Koe agrees to any such addition, Customer agrees to pay the prorated charges for such addition, and any such addition shall be automatically renewed as provided in this Agreement.


5.    TSP Exclusions: TSP service does NOT include: 


a.    repair of damage or replacement of spare parts resulting from electrical work external to the equipment or software or support of accessories. 


b.    repair of damage or increase in service time caused by accident, neglect or misuse; alterations including but not limited to installation or removal of equipment or software; foreign material dropped into equipment; or modifications to equipment or software. 


c.    repair of damage or increase in service time resulting from failure to provide a suitable installation environment with all facilities prescribed by the appropriate installation manual, including, but not limited to, adequate electric power, or from use of supplies or material not meeting specifications for such installation. 


d.    repair of damage or increase in service time resulting from any fire, wind, water, or storm damage; riot, vandalism, an act of God, or the like. 


e.    major program changes. 


f.    customer's personal computer malfunctions. 


g.    service necessary to comply with government requirements or regulations arising after the date of this Agreement. 


h.    service on equipment that has had its serial numbers tampered with or removed. 


i.    replacement of any fire system device considered to be disposable, including but not limited to: smoke detectors, heat detectors, manual pull stations, and horn/strobe signal devices. 


j.    repair or replacement of any device considered to be disposable, including but not limited to: ribbons, batteries, paper products, thumbprint scanners and cameras or camera equipment. 


k.    repair or replacement of any device considered to be disposable, including but not limited to: door access system card readers, door contacts, request to exist devices. 


l.    repair or replacement of any device considered to be disposable, including but not limited to: video surveillance cameras, camera brackets. 


m.    repair or replacement of any device to be considered part of the building: electric locks. 


n.    repairs or replacement of any part(s) or supply(ies) no longer manufactured or available to Ban-Koe.


Any TSP service necessary as a result of Section A5 (a through n) shall be charged to Customer at Ban-Koe’s hourly rates and terms then applicable.


6.     Responsibilities of Customer: Customer agrees (a) to provide Ban-Koe personnel with full, free and safe access to equipment and software for purposes of TSP service, including use of the data communications facilities, if required; (b) to maintain and operate the equipment and software in an environment and according to procedures which conform to Ban-Koe’s specifications; and (c) not to allow TSP service or repair of the equipment and software by anyone other than Ban-Koe without prior authorization from Ban-Koe. 


7.    Default: Ban-Koe reserves the right to terminate or suspend TSP service in the event Customer is in default under this or any other Agreement with Ban-Koe, and such default is not corrected within fifteen (15) days after written notice. In addition, this Agreement will terminate and all charges due hereunder will become immediately due and payable in the event Customer ceases to do business as a going concern or has its assets assigned by law. 


8.    Warranty Exclusion: SUBJECT TO THE WARRANTY (IES) PROVIDED IN THE SALES AGREEMENT (IF ANY), THE PARTIES AGREE THAT ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED. 


9.    Limitation of Liability: Ban-Koe is not responsible for failure to render service due to causes beyond its control. IN NO EVENT SHALL BAN-KOE, ITS EMPLOYEES OR AGENTS BE LIABLE TO CUSTOMER FOR ANY LOSS OF PROFITS OR ANY OTHER SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES ARISING OUT OF ANY DEFECT OR OPERATIONAL FAILURE OF THE EQUIPMENT AND/OR SOFTWARE, ANY DELAY IN THEIR REPAIR OR SUPPORT, OR CUSTOMER'S INABILITY TO USE OR REPLACE THE EQUIPMENT OR SOFTWARE. TSP SERVICE DOES NOT ASSURE UNINTERRUPTED OPERATION OF THE EQUIPMENT AND/OR SOFTWARE. 


10.    Additional Limitation of Liability: IN NO EVENT SHALL BAN-KOE’S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE TSP SUPPORT PROVIDED UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO SUCH CLAIM.


11.    Non-Solicitation: During the term and for a two (2) -year period following expiration or termination of this Agreement: (a) Customer agrees for itself and for its affiliates not to (i) solicit for employment (directly or indirectly) any employee of Ban-Koe or (ii) solicit for employment any former employee of Ban-Koe within one (1) year of the former employee's termination from Ban-Koe. (b) "Employment" is defined to include, but is not limited to, permanent, temporary, full-time and part-time work for the employer, as well as the employer's hiring of the employee as an independent contractor or consultant, or the employer's use of a third party such as an employment agency to obtain the employee's services.


12.    General: 


a.    Customer represents that it is the owner or the licensee of the equipment and/or software for which it has ordered TSP service, or if not the owner or licensee, that it is the user and has the authority from the owner or licensee to order service. 


b.    Customer shall not assign this Agreement without the prior written consent of Ban-Koe and any purported assignment, without such consent, shall be void.

 
c.    All notices which must be given under this Agreement shall be in writing and sent to the attention of the Customer Support Manager at Ban-Koe, or to Customer at the billing address on Addendum A of this Agreement. 


d.    This Agreement supersedes all prior or contemporaneous representations, negotiations, or other communications between the parties relating to the subject matter of this Agreement. This Agreement may be amended only in writing signed by authorized representatives of both parties. This Agreement constitutes the entire Agreement between Ban-Koe and Customer for TSP services. The terms and conditions of this Agreement will prevail notwithstanding any variance with the terms and conditions or any purchase order submitted by Customer. 


13.    Governing Law and Venue: This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Minnesota, excluding laws directing the application of the laws of another jurisdiction. The parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrators shall apply Minnesota substantive law to the proceeding (without regard to the choice of law provisions of any jurisdiction) except to the extent federal substantive law would apply to any claim. Any arbitration proceeding under this Agreement shall be conducted in Minneapolis, Minnesota. Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party may also, without waiving any remedy under this Agreement, seek from any court in Minnesota having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal, or pending the arbitral tribunal's determination of the merits of the controversy. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute.


B.    TERMS AND CONDITIONS APPLICABLE TO EQUIPMENT ONLY


The following terms and conditions apply only to the equipment, if any, at the location(s) specified on Addendum A, attached to this Agreement. 


1.    Equipment TSP. Ban-Koe will provide TSP service to keep the equipment in or restore the equipment to good working order. TSP service will include lubrication, adjustments and repair or replacement of parts that Ban-Koe deems necessary. TSP parts, which will be new or reconditioned to perform as new, will be furnished on an exchange basis, and the exchanged parts will become the property of Ban-Koe. 


2.    Equipment TSP service. Ban-Koe shall provide: 


a.    telephone access to the Ban-Koe Global Support Center for problem reporting. 


b.    scheduled preventive maintenance based on the needs of the equipment, as determined by Ban-Koe. 


c.    remedial service performed at a Customer’s site following Customer’s telephone notification to the Ban-Koe Global Support Center (for any applicable systems) that the equipment is inoperative. 


d.    alterations required by Engineering Change Notices, which Ban-Koe determines are applicable to the equipment, if installed during the term of this Agreement.


C.    TERMS AND CONDITIONS APPLICABLE TO SOFTWARE ONLY


The following terms and conditions apply only to the software, if any, at the location(s) specified on Addendum A, attached to this Agreement.


1.    Software TSP. Ban-Koe shall provide: 


a.    remote diagnostic technical assistance to resolve software functional problems and user problems. 


b.    software maintenance releases and patches, if the new maintenance release or patch does not require a conversion of the software database. Customer agrees to pay for labor charges required to install such maintenance releases and patches. 


c.    a twenty-five percent (25%) discount on additional service required for Ban-Koe software because of changes in versions of third-party software which render the Ban-Koe software obsolete; provided Customer’s operating system and equipment meet minimum system configuration requirements as determined by Ban-Koe. 


2.    Software Exclusions. Any software support beyond that described in Sections C1 (a) through (c) above shall be charged to Customer at Ban-Koe’s hourly rates and terms then applicable. In addition to the exclusions specified in Section A5 of this Agreement, software support excludes service required for application programs and conversions from products or software not supplied by Ban-Koe.
 

Support Terms & Conditions (TSP)
Fire & Alarm Testing Terms & Conditions (TSP)

Fire & Alarm Testing Terms and Conditions (TSP)

1.    Payment terms. The fees for service (the “Fee”) are annual and payable in advance for the initial term of the Agreement. Subsequent renewal fees for annual support will be invoiced sixty (60) days prior to the end of the then-current annual term for prepayment. Charges under these Fire Alarm Testing Terms and Conditions (TSP) (this “Agreement”) are payable in advance (except for charges incurred outside of the applicable service availability) and are payable thirty (30) days after date of invoice. Customer is responsible for any sales or similar taxes, however designated, levied or based on the sale price of the product or service sold, or its use (including state and local privilege or excise taxes), unless it provides Ban-Koe with an exemption certificate. Ban-Koe reserves the right to adjust pricing of annual service, the designation of serviceable locations, and the equipment or software serviced.


2.    Customer representations. Customer represents that he or she is the owner of the Equipment for which testing is required, or if not the owner, that he or she is the user and has authority from the owner to order service. Customer solely shall be responsible for complying with local fire protection codes and standards. While this Agreement is in effect, if the codes are amended in such manner as to require modifications of services rendered hereunder, Customer shall notify Ban-Koe in writing of such changes.  Customer must provide written notice to Ban-Koe of any Customer testing requirements beyond the standard testing requirements utilized by Ban-Koe.  Ban-Koe must agree to these testing requirements in writing.  This Agreement and the rates charged herein shall be modified to provide services in compliance with such amended codes. 


3.    BAN-KOE'S LIABILITY. BAN-KOE DOES NOT REPRESENT OR WARRANT THAT THE FIRE ALARM SYSTEM MAY NOT BE COMPROMISED OR CIRCUMVENTED; THAT THE SYSTEM WILL PREVENT ANY LOSS; OR THAT THE SYSTEM WILL IN ALL CASES PROVIDE THE PROTECTION FOR WHICH IT IS INSTALLED OR INTENDED. CUSTOMER ACKNOWLEDGES THAT BAN-KOE IS NOT AN INSURER; THAT CUSTOMER ASSUMES ALL RISK FOR LOSS OR DAMAGE TO CUSTOMER'S PREMISES OR TO THE PREMISES' CONTENTS; AND THAT BAN-KOE HAS MADE NO REPRESENTATIONS OR WARRANTIES, NOR HAS CUSTOMER RELIED ON ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH HEREIN. CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT. CUSTOMER PARTICULARLY ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS PARAGRAPH 4 OF THIS AGREEMENT, WHICH SET FORTH BAN-KOE'S OBLIGATIONS AND MAXIMUM LIABILITY IN THE EVENT OF ANY LOSS OR DAMAGE TO CUSTOMER. 


Ban-Koe is not responsible for any delay in testing as herein provided when caused by fire, flood, strike, acts of civil or military authorities, or insurrection or riot, or by any other cause which is unavoidable or beyond its control or in any event for any consequential or other damages. 


4.    Ban-Koe not an insurer - Liquidated Damages. It is understood and agreed between the parties hereto that Ban-Koe is not an insurer; nor is this Agreement intended to be an insurance policy or a substitute for an insurance policy. Insurance, if any, will be obtained by Customer. Charges are based solely upon the value of the services provided, and are unrelated to the value of Customer's premises. The amounts payable by Customer are not sufficient to warrant Ban-Koe's assumption of any risk for consequential or other damages to Customer due to Ban-Koe's negligence or failure to perform. Customer does not desire this Agreement to provide for the liability of Ban-Koe. Customer agrees that Ban-Koe shall not be liable for loss or damage due directly or indirectly to any occurrence or consequences from which the fire alarm system is designed to detect or avert. From the nature and the services to be performed, it is impractical and extremely difficult to fix the actual damages, if any, which may proximately result from the failure of the system to operate properly. If Ban-Koe should be found liable for loss or damage due to a failure on the part of Ban-Koe or the system, in any respect, its liability shall be limited to an amount equal to one year’s Fees paid by Customer at the time of the loss as liquidated damages and not as a penalty. This remedy shall be exclusive. The provisions of this paragraph shall apply in the event of loss or damage, irrespective of cause or origin, resulting directly or indirectly to person or property from Ban-Koe's performance or non-performance of the obligations set forth by the terms of this Agreement, or from Ban-Koe's negligence, active or otherwise. IN NO EVENT SHALL BAN-KOE BE LIABLE FOR ANY LOSS OF PROFITS OR OTHER INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT.


5.    Termination. This Agreement shall renew automatically for successive one (1) year terms; however, either party may terminate this agreement upon 180 days prior written notice to the other party of its intention to do so. Customer's fire alarm testing services will be terminated by Ban-Koe upon Customer's failure to provide payment in full within thirty (30) days of a billing invoice's due date. In the event of termination, credit will be given on a pro-rated basis. Upon each renewal, the Fees will be increased 1)at a minimum by the same amount of any increase in the Consumer Price Index during the preceding calendar year.  Such increase shall be calculated by multiplying the current Fee by a fraction whose numerator is the Consumer Price Index for the twelfth month of the preceding calendar year and whose denominator is the Consumer Price Index for the first month of such calendar year. In no event shall the Fee be decreased due to changes in the Consumer Price Index. For purposes hereof "Consumer Price Index" shall mean the Consumer Price Index for All Urban Consumers, U.S. City Average, published by the Bureau of Labor Statistics of the United States Department of Labor; and  2)in addition to the CPI, the Fee may be increased with thirty (30) day written notice from Ban-Koe.  Such increases will be based upon actual increase in cost to Ban-Koe. 


6.    Waiver of Subrogation. Customer does hereby for itself and any parties claiming under it, release and discharge Ban-Koe from and against all hazards covered by Customer's insurance, it being expressly understood and agreed that no insurance company or insurer will have any right of subrogation against Ban-Koe for any loss or damages resulting from fire covered under any such policy. If any of the policies of Customer require Customer to inform its insurer of the existence of this waiver of subrogation provision, Customer shall promptly provide the appropriate notice to its insurer. 


7.    Time Requirement for Filing Suit. All suits, actions or proceedings, legal or equitable, against Ban-Koe must be commenced in court within one (1) year after the cause of action has accrued or the act, omission, or event occurred upon which the suit, action, or proceeding arises, whichever is earlier, and if no such claim, action or proceeding is instituted within such time, it is barred, time being of the essence of this paragraph. 


8.    Dispute Resolution. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Minnesota, excluding laws directing the application of the laws of another jurisdiction. The parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrators shall apply Minnesota substantive law to the proceeding (without regard to the choice of law provisions of any jurisdiction) except to the extent federal law would apply to any claim. Any arbitration proceeding under this Agreement shall be conducted in Minneapolis, Minnesota. Either party also may, without waiving any remedy under this Agreement, seek from any court in Minnesota having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal, or pending the arbitral tribunal’s determination of the merits of the controversy. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute.. 


 

 
9.    Waiver. The waiver in writing by either party of any right granted to it shall not operate as a waiver of any other right or future breach of any provision hereof. The failure to enforce any provision of this Agreement shall not constitute a waiver of either party's right hereunder unless such waiver shall be in writing signed by both parties to this Agreement. 


10.    Exclusions. In the event the fire alarm system is connected to the sprinkler system, Ban-Koe does not flow water to test the sprinkler system or test the sprinkler systems connection to the fire alarm system. The sprinkler system by code is to be tested separately by a certified sprinkler contractor and, in some cases, more than once year, and generally on a different test date than the fire alarm system test term date. Ban-Koe does not test any other systems connected to the fire alarm system including the elevator recall function. Ban-Koe will test the elevator recall function in the event the owner or other authorized representative of owner is willing to operate the elevator, reset the elevator, and restore the elevator to normal operation upon activation of fire alarm initiating devices when the elevator recall function is activated/tested. Ban-Koe will take no responsibility for bringing the elevator back into its normal operational state as it will rely on the owner to do so. If an elevator contractor service call results from the testing of the elevator recall function, the owner or its representative will be solely responsible for associated costs with no contribution from Ban-Koe. Ban-Koe does not test any suppression type systems connected to the fire alarm system including chemical type (Ansul Hood) systems as again, those systems by code are required to be tested by certified suppression contractors as in the example above with the sprinkler contractor. 


11.    The Subscriber shall maintain a policy of public liability, property damage, burglary and theft, fire, water damage, and loss of property insurance under which Ban-Koe and the Subscriber are named as insureds, and under which the insurer agrees to indemnify an hold Ban-Koe harmless from and against all costs, expenses including attorneys’ fees and liability arising out of or based upon any and all claims, injuries and damages arising under this Agreement, including, but not limited to those claims, injuries and damages contributed to by Ban-Koe’s negligent performance or its failure to perform any obligation.  The minimum liability insurance shall be one million dollars for any injury or death, and property damage and loss, burglary and theft and fire and water damage coverage in an amount necessary to indemnify Subscriber for property (whether owned by Subscriber or other parties) on its premises.  Ban-Koe shall not be responsible for any portion of any loss or damage that is recovered or recoverable by the Subscriber from insurance covering such loss or damage or for such loss or damage against which the Subscriber is indemnified or insured.

12.         Entire Understanding. Subscriber acknowledges receipt of a copy of this Agreement. This Agreement contains the entire understanding of the parties and supersedes any other oral or written agreements or representations.

Remote Station Monitoring Terms & Conditions (TSP)

Remote Station Monitoring Terms and Conditions (TSP)

1.    Payment terms. The fees for service (the “Fee”) are annual and payable in advance for the initial term of the Agreement. Subsequent renewal fees for annual support will be invoiced sixty (60) days prior to the end of the then-current annual term for prepayment. Charges under these Remote Station Monitoring Terms and Conditions (TSP) (this “Agreement”) are payable in advance (except for charges incurred outside of the applicable service availability) and are payable thirty (30) days after date of invoice. Customer is responsible for any sales or similar taxes, however designated, levied or based on the sale price of the product or service sold, or its use (including state and local privilege or excise taxes), unless it provides Ban-Koe with an exemption certificate. Ban-Koe reserves the right to adjust pricing of annual service, the designation of serviceable locations, and the equipment or software serviced.


2.    BAN-KOE'S LIABILITY. BAN-KOE DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM MAY NOT BE COMPROMISED OR CIRCUMVENTED; THAT THE SYSTEM WILL PREVENT ANY LOSS BY BURGLARY, HOLD-UP, FIRE, WATER DAMAGE, OR OTHERWISE; OR THAT THE SYSTEM WILL IN ALL CASES PROVIDE THE PROTECTION FOR WHICH IT IS INSTALLED OR INTENDED. SUBSCRIBER ACKNOWLEDGES THAT BAN-KOE IS NOT AN INSURER; THAT SUBSCRIBER ASSUMES ALL RISK FOR LOSS OR DAMAGE TO SUBSCRIBER'S PREMISES OR TO THE PREMISES' CONTENTS; AND THAT BAN-KOE HAS MADE NO REPRESENTATIONS OR WARRANTIES, NOR HAS SUBSCRIBER RELIED ON ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH HEREIN. SUBSCRIBER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT. SUBSCRIBER PARTICULARLY ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS PARAGRAPH 3 OF THIS AGREEMENT, WHICH SETS FORTH BAN-KOE'S OBLIGATIONS AND MAXIMUM LIABILITY IN THE EVENT OF ANY LOSS OR DAMAGE TO SUBSCRIBER. IF SUBSCRIBER WISHES TO INCREASE THE LIMITATION OF LIABILITY, SUBSCRIBER MAY, ENTER INTO A SUPPLEMENTAL AGREEMENT, OBTAIN A HIGHER LIMIT BY PAYING AN ADDITIONAL AMOUNT PROPORTIONAL TO THE INCREASE IN LIABILITY.


3.    Ban-Koe not an insurer - Liquidated Damages. It is understood and agreed by and between the parties hereto that Ban-Koe is not an insurer; nor is this Agreement intended to be an insurance policy or a substitute for an insurance policy. Insurance, if any, will be obtained by Subscriber. Charges are based solely upon the value of the services provided and are unrelated to the value of Subscriber's premises. The amounts payable by Subscriber are not sufficient to warrant Ban-Koe's assumption of any risk for consequential or other damages to Subscriber due to Ban-Koe's negligence or failure to perform. Subscriber does not desire this Agreement to provide for the liability of Ban-Koe. Subscriber agrees that Ban-Koe shall not be liable for loss or damage due directly or indirectly to any occurrence or consequences from which the system is designed to detect or avert. From the nature and the services to be performed, it is impractical and extremely difficult to fix the actual damages, if any, which may proximately result from the failure of the System to operate properly. If Ban-Koe should be found liable for loss or damage due to a failure on the part of Ban-Koe or its System, in any respect, its liability shall be limited to an amount equal to six (6) times the total monthly charge paid by Subscriber at the time of the loss, or to the sum of Five Hundred 00/100 Dollars ($500.00), whichever sum shall be greater, as liquidated damages and not as a penalty. This remedy shall be exclusive. The provisions of this paragraph shall apply in the event of loss or damage, irrespective of cause or origin, resulting directly or indirectly to person or property from Ban-Koe's performance or nonperformance of the obligations set forth by the terms of this Agreement, or from Ban-Koe's negligence, active or otherwise. IN NO EVENT SHALL BAN-KOE BE LIABLE FOR ANY LOSS OF PROFITS OR OTHER INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT.

4.    Termination; Fee Increases. This Agreement shall renew automatically for successive one (1) year terms; however, either party may terminate this Agreement upon 180 days' prior written notice to the other party of its intention to do so. Upon each renewal, the then current Fee will be increased by 1) the same amount of any increase in the Consumer Price Index during the preceding calendar year.  Such increase shall be calculated by multiplying the current Fee by a fraction whose numerator is the Consumer Price Index for the twelfth months of the preceding calendar year and whose denominator is the Consumer Price Index for the first month of such calendar year. In no event shall the Fee be decreased due to changes in the Consumer Price Index. For purposes hereof "Consumer Price Index" shall mean the Consumer Price Index for All Urban Consumers, U.S. City Average, published by the Bureau of Labor Statistics of the United States Department of Labor; and  2) in addition to the CPI, the Fee may be increased with thirty (30) days written notice from Ban-Koe.  Such increases will be based upon actual increase in cost to Ban-Koe. Subscriber's monitoring services will be terminated by Ban-Koe upon Subscriber's failure to provide payment in full within thirty (30) days of a billing invoice's due date. Upon termination of this agreement, Subscriber agrees to permit Ban-Koe to enter Subscriber's premises in order to disconnect, disable, and/or deprogram that portion of Subscriber's alarm system which transmits signals to the monitoring company so that it is no longer capable of sending an alarm signal to the monitoring company. 


5.    Waiver of Subrogation. Subscriber does hereby for itself and any parties claiming under it, release and discharge Ban-Koe from and against all hazards covered by Subscriber's insurance, it being expressly understood and agreed that no insurance company or insurer will have any right of subrogation against Ban-Koe for any loss or damages resulting from fire, burglary, or any other cause covered under any such policy. If any of the aforesaid policies of Subscriber require Subscriber to inform its insurer of the existence of this waiver of subrogation provision, Subscriber shall promptly provide the appropriate notice to its insurer. 


6.    Time Requirement for Filing Suit. All suits, actions or proceedings, legal or equitable, against Ban-Koe must be commenced in court within one (1) year after the cause of action has accrued or the act, omission, or event occurred upon which the suit, action, or proceeding arises, whichever is earlier, and if no such claim, action, or proceeding is instituted within such time, it is barred, time being of the essence of this paragraph. 


7.    Dispute Resolution. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Minnesota, excluding laws directing the application of the laws of another jurisdiction. The parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrators shall apply Minnesota substantive law to the proceeding (without regard to the choice of law provisions of any jurisdiction) except to the extent federal law would apply to any claim. Any arbitration proceeding under this Agreement shall be conducted in Minneapolis, Minnesota. Either party also may, without waiving any remedy under this Agreement, seek from any court in Minnesota having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal, or pending the arbitral tribunal’s determination of the merits of the controversy. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. 


8.    Entire Understanding. Subscriber acknowledges receipt of a copy of this Agreement. This Agreement contains the entire understanding of the parties and supersedes any other oral or written agreements or representations. 


9.    Subscriber agrees to indemnify and hold Ban-Koe harmless, including reasonable attorneys’ fees, from and against all claims, lawsuits and losses alleged to be caused by Ban-Koe’s negligent performance to any degree or failure to perform under this Agreement.  The Parties agree that there are no third party beneficiaries of this Agreement. 


10.    The Subscriber shall maintain a policy of public liability, property damage, burglary and theft, fire, water damage, and loss of property insurance under which Ban-Koe and the Subscriber are named as insureds, and under which the insurer agrees to indemnify an hold Ban-Koe harmless from and against all costs, expenses including attorneys’ fees and liability arising out of or based upon any and all claims, injuries and damages arising under this Agreement, including, but not limited to those claims, injuries and damages contributed to by Ban-Koe’s negligent performance or its failure to perform any obligation.  The minimum liability insurance shall be one million dollars for any injury or death, and property damage and loss, burglary and theft and fire and water damage coverage in an amount necessary to indemnify Subscriber for property (whether owned by Subscriber or other parties) on its premises.  Ban-Koe shall not be responsible for any portion of any loss or damage that is recovered or recoverable by the Subscriber from insurance covering such loss or damage or for such loss or damage against which the Subscriber is indemnified or insured.

Knox Sales Terms & Conditions

Knox Sales Terms & Conditions

The term KTP refers to a Knox Trusted Partner, in this case Ban-Koe Systems Inc.

 

As used in this Order Terms and Conditions (the "Agreement"), the words "you," "your," and "customer" each mean the person or entity ordering, purchasing  or using any

Knox product. The words "we," "our," and "Knox" each mean Knox Associates, Inc. d/b/a The Knox Company, an Arizona corporation,  with a place of business located at

1601 W. Deer Valley Road, Phoenix, Arizona 85027 and KTP - Ban-Koe Systems Inc. d/b/a Ban-Koe Companies a Minnesota Corporation, with a place of business located at

9401 James Avenue South, Suite 180, Bloomington, MN 55431. The words "Equipment"  or "Product" mean the products ordered by you from us. By using Products or

Equipment,  you hereby agree to the following:

 

1. All Equipment and Products are subject to this Agreement. Knox rejects any and all other terms and conditions of sale proposed or discussed by you or others in connection with Equipment  or Products. This Agreement shall constitute the entire and exclusive contract of sale between you and Knox, and any additional or different terms in any purchase order, counteroffers, invoices, order forms or where ever contained are objected to and rejected.

 

2. All orders for Products are subject to availability. We reserve the right to reject any order for any reason. We will use all reasonable efforts to deliver Products by a

requested delivery date. However, delivery dates are approximate and we are not liable for delays in delivery for any reason.

 

3. Subject to payment in full, title to Products will pass to you, FOB our shipping dock. Transportation will then be at your risk, and any loss or damage after our delivery to the carrier will not relieve you of your payment obligations to us.

 

4. Before shipping Products to you, we will perform our standard factory inspection and acceptance  tests on the Products, and satisfactory completion of inspection will constitute your acceptance  of the Products. At your request, we will certify in writing our completion of inspection tests.

 

5. You shall pay all amounts due according to the payment terms as agreed to with us, in United States dollars, delivered to us at the address stated on the invoice or as otherwise required by us. If you fail to pay any charges when due, in addition to such overdue amounts you shall pay a late-payment charge on the unpaid balance equal to the lesser of 1.5 percent per month or the lawful maximum. You have no set-off rights.

 

6. We warrant that Products sold to you under this Agreement will conform to our then-current  published specifications for the Product and shall be limited to the warranty period specified by Knox for that Product on the date of your order. We reserve the right to make changes to our Products and have no obligation to alter previously purchased Products. Our sole obligation to you and your exclusive remedy under this warranty is as follows:

 

This warranty also excludes expendable items, such as lamps, fuses, or other parts which fail from normal use.

 

These warranties and remedies shall become null and void in the event the Products have been or are being used by anyone other than the original purchaser of the Product or if the Product has been or is currently being used at a location other than the original installation address.

 

THIS IS OUR ONLY WARRANTY  FOR PRODUCTS.  KNOX EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, GUARANTEES OR REMEDIES - WHETHER EXPRESS, IMPLIED, OR STATUTORY  - INCLUDING ANY IMPLIED WARRANTY  OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE ALSO DISCLAIM ANY IMPLIED WARRANTY  ARISING OUT OF TRADE USAGE OR OUT OF A COURSE OF DEALING OR COURSE OF PERFORMANCE. AND IN NO EVENT SHALL OUR LIABILITY TO YOU EXCEED THE LIMITATIONS SPECIFIED IN THIS AGREEMENT.

 

a.  We will repair or replace without charge Products found to be defective so long as you return the Products to us, freight prepaid, to our service center in Phoenix, Arizona. At our option, however, we may instead elect either to repair the Product at your facility or else accept return of the Product and refund the purchase price to you.

 

b.  We will not be required to ship a replacement  Product until we have confirmed through our examination  that your Product is in fact defective. We will pay freight costs to ship any repaired or replacement  Product to you if your Product is found to be defective, through no fault of you. If we are unable within a reasonable  time to repair or replace your item, then you will be entitled to the refund of your purchase price.

 

c. This warranty does not apply to any unit which we determine has been subjected by you or another party to:

1.  operating or environmental conditions not in conformance  with our written specifications, installation guides or recommendations;

2.  damage, misuse or neglect;

3.  improper installation,  repair, modification  or alteration; or

4. use for which it was not intended or designed.

 

 

7. You acknowledge  that all right, title and interest in all patents, copyrights, trademarks,  trade dress, trade secrets and other intellectual  property embodied within, covering or in any way regarding the Products is owned exclusively by Knox, or its licensor(s), and all rights with regard to such intellectual property are reserved. You represent, warrant and covenant that you will not claim any right, title or interest in, or use, any such intellectual property, including any and all codes to keys, keyways and key wrenches all of which remain exclusively the property of Knox or its licensor(s), and that you will not bring any suit or proceeding in an attempt to invalidate or claim any

such intellectual property rights.

 

8. Neither Knox nor you will be liable to the other for any delay or failure to perform if that delay or failure results from a cause beyond its reasonable control.

 

9. YOUR EXCLUSIVE REMEDIES CONCERNING OUR PERFORMANCE OR NONPERFORMANCE ARE THOSE EXPRESSLY STATED IN THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL KNOX BE LIABLE FOR REPROCUREMENT COSTS, LOST REVENUE OR PROFITS, LOSS OF DATA, OR FOR ANY OTHER SPECIAL, INCIDENTAL  OR CONSEQUENTIAL DAMAGES, EVEN IF THEY WERE FORESEEABLE OR YOU HAVE INFORMED  US OF THEIR POTENTIAL  AND WE WILL NOT BE LIABLE FOR ANY DAMAGES CLAIMED BY YOU BASED UPON ANY THIRD PARTY CLAIM. OUR TOTAL LIABILITY TO YOU FOR YOUR DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE PRICE YOU PAID TO US FOR THE PRODUCTS AT ISSUE IN YOUR CLAIM. THIS LIMITATION  WILL APPLY REGARDLESS  OF THE FORM OF ACTION (I.E., WHETHER THE LAWSUIT IS IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE). BECAUSE SOME STATES DO NOT ALLOW EXCLUSION  OR LIMITATION  OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL  DAMAGES, IN SUCH STATES KNOX'S ENTIRE LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

 

10. You shall indemnify and save Knox harmless from all claims, losses, damages, expenses (including reasonable  legal fees) and liability resulting from or in any way connected, directly or indirectly, with a breach of your obligations under this Agreement,  third party claims, or with the possession, handling, sale or use of the Products or goods made from the Products delivered hereunder.

 

11. You will be invoiced and will pay all sales, use, excise, and other taxes on Products unless exempt under law or you furnish us with a valid resale or exemption certificate. The reporting and payment of all taxes for Products is your sole responsibility. You will also be responsible  for all transportation costs, insurance charges, customs duties, and loss or damage settlements.  Our prices for Products do not include such taxes or charges; where applicable,  they will be added to your total invoice amount. You will not be responsible,  however, for taxes levied against us based upon our net income or net worth.

 

12. We will honor the return or exchange of Products and Equipment  within ninety (90) days of purchase, if the Products or Equipment  have not been used or installed or modified. Products that have been used, installed or modified will not be accepted for return or exchange. In addition, all Knox key boxes, vaults, and cabinets must be returned in the original shipping box and packaging materials.

Before shipping Products for return or exchange, you must obtain a Return Authorization Number from us. Call Ban-Koe Systems (952-888-6688) for your authorization number.

There will be a restocking charge for all Products that are returned or exchanged.

 

13. If for any reason we are unable to supply the total demand for Products that you request, we may in our sole discretion distribute our available supply of Products among our customers, and we shall have no obligation to purchase supplies of the goods from third parties to enable us to perform our obligations to you under this Agreement.

 

14. This Agreement shall be governed by and construed in accordance  with the laws of the State of Arizona without resort to conflict of laws rules. Each party irrevocably agrees that any action, suit or other legal proceeding against them shall be brought in a court of the State of Arizona or in the United States District Court for the State of Arizona. By execution and delivery of this Agreement,  each party irrevocably submits to and accepts the jurisdiction  of each of such courts and waives any objection (including any objection to venue, enforcement, or grounds of forum non conveniens)  which might be asserted against the bringing of any such action, suit or other legal proceeding  in such courts. In the event any proceedings  are commenced  to enforce or construe this Agreement or the Equipment or Products, then the prevailing party in such proceedings shall be entitled to its reasonable attorney fees thereby incurred. In the event a judgment is entered in such proceedings, it is agreed that said judgment shall provide that the prevailing party shall be entitled to recover all attorney fees reasonably incurred in enforcing said judgment.

 

15. This Agreement represents the entire agreement between us regarding the Equipment  or Products. The parties specifically disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods. It also supersedes all previous verbal or written communications between us regarding its subject matter. If any provision is held invalid, all other provisions shall remain valid, unless such invalidity would frustrate the purpose of our Agreement.

Service Sales Agreement Terms & Conditions

Service Sales Agreement Terms & Conditions

DEFINITIONS

1.   “Equipment” means the equipment covered by the Services to be performed under this Agreement and is identified in the respective work scope attachments under the “Equipment List”.

2.    “Services” means those services and obligations to be undertaken by Ban-Koe Systems, Inc herein referred to as “BKC” in support of CUSTOMER pursuant to this Agreement, as more fully detailed in the attached work scope document(s), which are incorporated herein.

 

COVERAGE

1.      CUSTOMER agrees to provide access to all Equipment covered by this Agreement. BKC will be free to start and stop all primary equipment incidental to the operation of the mechanical, and life safety system(s) as arranged with CUSTOMER’s representative.

2.     It is understood that the repair, replacement, and emergency service provisions apply only to the Equipment included in the attached Equipment List.   Repair or replacement of non-maintainable parts of the system such as, but not limited to, piping, unit cabinets, insulating material, electrical wiring, hydronic and pneumatic piping, structural supports and other non-moving parts, is not included under this Agreement.  Costs to repair or replace such non-maintainable parts will be the sole responsibility of CUSTOMER.

3.      BKC  will  not  reload  software,  nor  make  repairs  or  replacements  necessitated  by  reason  of negligence, vandalism or misuse of the Equipment by persons other than BKC or its employees, or caused by lightning, flood or water damage from any source, electrical storm, or other violent weather or by any other cause beyond BKC control.  This clause shall supersede and take precedent over any Emergency Service clause or provision contained elsewhere in this Agreement.

4.      This Agreement assumes that the systems and/or Equipment included in the attached Equipment List

are in maintainable condition.  If repairs are necessary upon initial inspection, repair charges will be submitted for approval.  Should these charges be declined, those non-maintainable items will be eliminated from coverage under this Agreement and the price adjusted accordingly.   System equipment deemed to be no longer economically maintainable (obsolete) by BKC will be identified throughout the term of this agreement and brought to the CUSTOMER’s attention and may be removed from this specific  Agreement or coverage type on the equipment identified may be reduced.

5.     Maintenance, repairs, and replacement of Equipment parts and components are limited to restoring to proper working condition.  BKC shall not be obligated to provide replacement software, equipment, components and/or parts that represent a significant betterment or capital improvement to CUSTOMER’S system(s) hereunder.

6.      All non-emergency services under this Agreement will be performed between the hours of 8:00 am – 5:00 pm. local time Monday through Friday, excluding federal holidays and normal BKC observed Holidays. If for any reason CUSTOMER requests BKC  to furnish any labor or services outside of the above stated hours, any overtime or other additional expense occasioned thereby, shall be billed to and paid by CUSTOMER except as may be provided under the Emergency Service section or Special Provisions of this Agreement.

7.      CUSTOMER will promptly notify BKC of any malfunction in the system(s) or Equipment covered under this Agreement that comes to CUSTOMER’s attention.

 

PRICE, BILLING, AND TERM

1.      CUSTOMER shall pay or cause to be paid to BKC the full price for the Services as specified on the first page of this Agreement.  BKC shall submit annual invoices unless otherwise specified to CUSTOMER in advance for Services to be performed during the subsequent billing period, and payment shall be due within fifteen (15) days of the Invoice Date.  Payments for Services past due more than ten (10) days shall accrue interest from the due date to the date of payment at the rate of one and one-half percent (1.5%) per month, compounded monthly, or the highest legal rate then allowed.  CUSTOMER shall pay all attorney and/or collection fees incurred by BKC in collecting any past due amounts.

2.    BKC  may adjust the annual price of this Agreement periodically during the term of this Agreement (either up or down), and CUSTOMER agrees to pay for this negotiated increase or decrease in scope of services to the main Agreement between the CUSTOMER and BKC , if additional systems and equipment are added or deleted to the scope of this Agreement.

3.      Following the initial term of this Agreement as noted on Page 1 of this Agreement and titled, “Period of Agreement”, this Agreement will automatically renew for successive one (1) year periods unless canceled prior to the anniversary date with at least a thirty (30) day written notice issued by the CUSTOMER.   Agreements that are automatically renewed beyond the initial term may be subject to a minimum price increase based on the published U.S. Department of Labor, Consumer Price Index (CPI) at the time of renewal.

4.     CUSTOMER agrees to pay any sales, excise, use or other taxes, now or hereafter levied, which BKC may be required to pay or collect in connection with this Agreement.

 

TERMINATION

1.     CUSTOMER may terminate this Agreement for cause after giving BKC thirty (30) days advance written notice. CUSTOMER is responsible for payment of services provided up to cancellation date.

2.     BKC may terminate this Agreement for cause (including, but not limited to, CUSTOMER’S failure to make payments as agreed herein) after giving CUSTOMER thirty (30) days advance written notice.

GENERAL TERMS AND CONDITIONS

 

1.      Assignment and Delegation: CUSTOMER may not assign its rights or delegate its obligations under this Agreement, in whole or in part, without the prior written consent of BKC. BKC may assign its right to receive payment to a third party.

2.      CUSTOMER shall be responsible for maintaining all liability and property insurance. No insurer or other third party will have any subrogation rights against BKC.

3.      Hazardous Materials:  CUSTOMER represents and warrants that, except as otherwise disclosed in this in the areas where BKC will undertake work or provide Services, there are no: (a)  materials or substances classified as toxic or hazardous either (i) on or within the walls, floors, ceilings  or other structural components or (ii) otherwise located in the work area, including asbestos or presumed asbestos-containing materials, formaldehyde, containers or pipelines containing petroleum products or hazardous substances, etc.;  (b) situations subject to special precautions or equipment required by federal, state or local health or safety regulations; or (c) unsafe working conditions.

4.      CUSTOMER SHALL INDEMNIFY AND HOLD BKC HARMLESS FROM AND AGAINST

ANY AND ALL CLAIMS AND COSTS OF WHATEVER NATURE, INCLUDING BUT NOT LIMITED TO, CONSULTANTS’ AND ATTORNEYS’ FEES, DAMAGES FOR BODILY INJURY AND PROPERTY DAMAGE, FINES, PENALTIES, CLEANUP COSTS AND COSTS ASSOCIATED WITH DELAY OR WORK STOPPAGE, THAT IN ANY WAY RESULTS FROM OR ARISES UNDER SUCH MATERIALS, SITUATIONS OR CONDITIONS, REGARDLESS OF WHETHER CUSTOMER HAS PRE-NOTIFIED BKC. THIS INDEMNIFICATION SHALL SURVIVE TERMINATION OF THIS AGREEMENT FOR WHATEVER REASON.

 

Customer will also defend and indemnify [Ban-Koe – insert appropriate entity name] and its Affiliates, and their respective officers, directors, members, shareholders, employees, and agents (each, a “Ban-Koe Indemnified Party”) against any claim, demand, suit or proceeding made or brought against any Ban-Koe Indemnified Party by a third-party alleging that Customer’s use of any technology, software, hardware or other offering or service provided by Ban-Koe to Customer (each a “Ban-Koe Offering”) violates any applicable law, including, but not limited to, local, state, and federal privacy laws, biometric laws, civil rights laws, or wage and hour laws (a “Claim Against Ban-Koe”). Customer will indemnify the Ban-Koe Indemnified Parties for any damages, attorney fees and costs, or for any amounts paid by a Ban-Koe Indemnified Party under a Customer-approved settlement of a Claim Against Ban-Koe. To be entitled to indemnification, Ban-Koe must (i) give you prompt written notice of the Claim Against Ban-Koe; (ii) give you sole control of the defense and settlement of the Claim Against Ban-Koe

 

 

 

5.      Warranties  and  Limitation  of  Liability:    BKC  will  replace  or  repair  any  product  BKC provides or CUSTOMER procures under this Agreement that fails within the warranty period (Typically one-year) due to defective workmanship or materials.   The failure must not result from  CUSTOMER’s negligence;  or  from fire, lightning,  water damage,  or any  other cause beyond BKC control.  This warranty applies to BKC fabricated and outside-purchased products. The warranty effective date is the date of CUSTOMER acceptance of the product or the date CUSTOMER begins to receive beneficial use of the product, whichever comes first.

6.      THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE, AND BKC

EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES, EQUIPMENT, AND MATERIALS PROVIDED HEREUNDER.  BKC SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM, OR RELATING TO, THIS LIMITED WARRANTY OR ITS BREACH.

7.      BKC  shall not be liable for damages caused by delay or interruption in Services due to fire or flood; corrosive substances in the air or water supply that may enter or otherwise affect sprinkler piping and sprinkler systems including but not limited to biological growth, Calcium Carbonate Deposits and microbiologically influenced corrosion (MIC); strike, lockout, dispute with workmen, inability to obtain material or services, war, acts of God or any other cause beyond BKC  reasonable control.  Should any part of the system or any Equipment be damaged by fire, water, water leakage, freezing pipes, lightning, acts of God, third parties or any other cause beyond the control of BKC , any repairs or replacement shall be paid for by CUSTOMER.

8.      Indemnity and Limitation of Liability:  BKC agrees to indemnify and hold CUSTOMER and its agents and employees harmless from all claims for bodily injury and property damages to the extent such claims result from or arise under BKC negligent actions or willful misconduct in its performance of the Services.  PROVIDED, THAT NOTHING IN THIS ARTICLE SHALL BE CONSTRUED OR UNDERSTOOD TO ALTER THE LIMITATIONS OF LIABILITY CONTAINED IN THIS ARTICLE OR THE INDEMNIFICATION CONTAINED IN SECTION 4.   IN NO EVENT SHALL BKC BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, SPECULATIVE, REMOTE, OR CONSEQUENTIAL DAMAGES ARISING FROM, RELATING TO, OR CONNECTED WITH THE SERVICES, EQUIPMENT, MATERIALS, OR ANY GOODS PROVIDED HEREUNDER, INCLUDING ANY THIRD-PARTY CLAIMS RELATING TO BIOMETRIC DATA AND/OR PRIVACY. SUCH INDEMNITY OBLIGATION IS VALID ONLY TO THE EXTENT CUSTOMER GIVES  BKC     REASONABLY  PROMPT  NOTICE  IN  WRITING  OF  ANY  SUCH CLAIMS  AND  PERMITS  BKC,  THROUGH  COUNSEL  OF  ITS  CHOICE,  TO ANSWER THE CLAIMS AND DEFEND ANY RELATED SUIT.

9.     The parties further agree that BKC is not an insurer; that the Services purchased herein is designed only to reduce the risk of loss; that CUSTOMER chose the level and scope of services being provided by BKC from a variety of service options; that BKC will not be held liable for any loss, in tort or otherwise, which may arise from the failure of the system(s) and/or service(s) or any errors and omissions in the above referenced specifications. The parties further agree that this Agreement shall not confer any rights on the part of any person or entity not a party hereto, whether as a third-party beneficiary or otherwise.

10.    BECAUSE IT IS  IMPOSSIBLE TO ASSESS ACTUAL DAMAGES ARISING FROM THE FAILURE OF A SYSTEM AND/OR SERVICE PROVIDED UNDER THIS AGREEMENT, THE PARTIES AGREE THAT IF ANY LIABILITY IS IMPOSED ON BKC FOR DAMAGES OR PERSONAL INJURY TO EITHER CUSTOMER OR ANY THIRD PARTY, SUCH LIABILITY SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED THE AMOUNT OF THE ANNUAL SERVICE CHARGE OF THIS AGREEMENT.

 

MISCELLANEOUS

1.      In the performance of its obligations hereunder, BKC shall have the right, in its sole discretion, to subcontract its rights and responsibilities to any third party, provided that BKC shall remain responsible for the performance of any such third party.

2.     Except as and to the extent provided in the Contract, this Agreement represents the entire Agreement between CUSTOMER and BKC for the Services described herein and supersedes all prior negotiations, representations or Agreements between the Parties related to the Services described herein.

3.      None of the provisions of this Agreement shall be modified, altered, changed or voided by any subsequent document unilaterally issued by CUSTOMER that relates to the subject matter of this Agreement. This Agreement may be amended only by written instrument signed by both Parties.

4.     BKC  shall not be liable for any delay in producing, delivering, installing, or giving advice and technical assistance for any of the equipment or software covered hereunder if such delay shall be due to one or more of the following causes: fire, strike, lockout, dispute with workmen, flood, lightning, accident, delay in transportation, shortage of fuel, inability to obtain material, war, embargo, demand or requirement of the United States or any governmental or war activity, or any other cause whatsoever beyond the reasonable control of BKC .  In addition, BKC shall not be liable for any delays caused by failure of CUSTOMER, or its agent, or any person or entity not a party hereto, to perform any of its obligations in a timely manner.

5.      If any provision of this Agreement is or becomes invalid under any provision of federal, state or local law, such invalidity shall not affect the validity and enforceability of any other provision hereof.

6.      Neither party may assign this Agreement.  Any attempt to assign this Agreement shall be void.

7.      The waiver of a breach of any provision of this Agreement by either Party shall not operate or be construed as a waiver of any subsequent breach.

8.      The Parties expressly acknowledge and agree the provisions of this Agreement, which by their expressed or implied terms extend beyond the termination of this Agreement, shall continue in full force and effect.

9.      Upon reasonable request from either Party, from time to time, each Party shall execute and deliver such additional documents and instruments and take such other actions as may be reasonably necessary to give effect to the intents and purposes of this Agreement.

10.    This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.

DISPUTE RESOLUTION

1.      This Agreement shall be deemed to be made in Hennepin County, Minnesota regardless of the location of any office or representative of CUSTOMER, or the location of the equipment, or the place of signing by any party.  This Agreement will be governed by Minnesota law.   This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Minnesota, excluding laws directing the application of the laws of another jurisdiction. The Parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrators shall apply Minnesota substantive law to the proceeding (without regard to the choice of law provisions of any jurisdiction) except to the extent federal law would apply to any claim. Any arbitration proceeding under this Agreement shall be conducted in Minneapolis, Minnesota. Either party also may, without waiving any remedy under this Agreement, seek from any court in Minnesota having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal, or pending the arbitral tribunal’s determination of the merits of the controversy.

2.      In any arbitration or litigation shall be brought to recover for or on the account of any breach of, or to enforce or interpret any of the covenants, terms or conditions of this Agreement, the prevailing party shall be entitled to recover from the other party its costs, including reasonable attorney’s fees, the amount of which shall be fixed by the arbitrator or court and shall be made a part of any award, judgment or decree rendered.

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