PRODUCT AND SERVICES AGREEMENT
This Product and Services Agreement (“Agreement”), effective upon Customer’s acceptance of these terms (“Effective Date”). This Agreement is made between MH Dimmable Tint (“MHDT”) and the person or entity entering into this Agreement (the “Customer”). This Agreement allows for the provisioning of Products and Remote Installation Support.
1. Definitions
1.1. “Defective Products” means Products that fail during the warranty period.
1.2. “Documentation” means documentation provided with the Products.
1.3. “MHDT Installation Instructions” mean MHDT’s written instructions provided to Customer.
1.4. “Products” means the transformers, installation supplies, and film in the quantities listed in Customer’s order.
1.5. “Remote Installation Support” means the remote installation services provided in accordance with Section 4.
2. Delivery, Risk of Loss, and Acceptance
2.1. Risk of loss passes to Customer upon delivery to the first carrier.
2.2. Title to Products shall pass upon MHDT’s receipt of full payment.
2.3. Customer shall inspect the Products within one (1) day from delivery to the destination listed in the order (“Delivery Date”). Customer may reject the Products if they are damaged. Unless Customer provides a written rejection of the Products within such one (1) day period, the Products shall be deemed accepted.
3. Warranty
3.1. The Products are intended for use inside a normal office building or residential environment. MHDT warrants that the Products will substantially conform to the Documentation for a period of two (2) years from the Delivery Date. MHDT shall not provide warranty support relating to (i) any alterations of or additions to the Products performed by parties other than MHDT or at the direction of MHDT; (ii) use of the Products outside of a controlled indoor residential or office environment, including subjecting the Products to environmental conditions or use exceeding design standards, (iii) attachment of unapproved materials or coatings, (iv) exposure or contact with chemical agents, harsh detergents, alkaline or acid based cleaners, abrasive materials, (v) power surges, brownouts, accidents, vandalism, negligence, abuse, or misuse, or (vi) force majeure.
3.2. If the Product does not comply with this warranty and such non-compliance is reported by Customer in writing to MHDT within the warranty period, MHDT will do one of the following, at MHDT’ reasonable discretion: either (i) use reasonable efforts to repair the Product, (ii) replace the nonconforming Product, or (iii) refund the relevant Product fees paid for such non-compliant Product.
3.3. MHDT warrants that it shall provide Remote Installation Support in a professional and workmanlike manner.
3.4. THE REMEDIES SET FORTH IN THIS SECTION ARE CUSTOMER’S EXCLUSIVE REMEDY AND MHDT’S SOLE LIABILITY WITH RESPECT TO THE APPLICABLE WARRANTIES SET FORTH IN THIS SECTION. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS SECTION, MHDT MAKES NO WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY WITH RESPECT TO ANY PRODUCT, DOCUMENTATION, OR ANY SERVICES, AND MHDT EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY/ MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. MHDT DOES NOT WARRANT THAT THE PRODUCTS SHALL MEET CUSTOMER’S REQUIREMENTS.
4. Remote Installation Support and Enhanced Warranty
4.1. Customer may elect to purchase Remote Installation Support if the Customer has purchased MHDT’s transformers. Remote Installation Support consists of up to six (6) hours of remote installation support from MHDT between the hours of 8:00 am and 5:00 pm Monday through Friday (Central) excluding United States National Holidays.
4.2. If Customer (i) explicitly follows MHDT’s instructions and provides MHDT with photographic and video graphic images of the film installation in accordance with MHDT’s Installation Instructions, (ii) has purchased the appropriate number of transformers from MHDT, and (iii) has purchased Remote Installation Support at the same time as the film was purchased, MHDT will provide a four (4) year warranty on the Products.
5. Payment and Taxes
5.1. Customer shall pay all fees in advance.
5.2. All payments hereunder shall be made in United States dollars.
5.3. Customer shall be responsible for and pay all taxes, duties and levies, excluding only taxes based solely on MHDT net income. Customer shall pay to MHDT all fees and expenses due under this Agreement without any deduction or withholding of any kind. If Customer is required by applicable law to deduct or withhold any amount from the payment of the fees, the fees that Customer shall pay to MHDT shall be increased by the amount necessary to ensure MHDT receives an amount equal to the fees which would have been payable had no deduction or withholding been required.
6. Termination
6.1. Except as provided in Section 6.2 below, this Agreement and any orders may not be cancelled.
6.2. Either party may terminate this Agreement by written notice if the other party (i) fails to pay any amount due under this Agreement, or (ii) commits a non-monetary breach of this Agreement and such breach is not cured within thirty (30) days of a notice of termination.
7. Liability
7.1. IN NO EVENT SHALL THE LIABILITY OF MHDT EXCEED THE FEES PAID BY CUSTOMER TO MHDT PURSUANT TO THIS AGREEMENT. THIS LIABILITY LIMIT IS CUMULATIVE AND NOT PER INCIDENT. IN NO EVENT SHALL MHDT HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, OR SERVICES, ARISING IN ANY WAY OUT OF THIS AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER OR NOT MHDT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION DOES NOT LIMIT LIABILITY FOR BODILY INJURY.
7.2. No action arising out of this Agreement may be brought by either party more than one (1) year after the cause of action to which it relates first becomes known (or ought to have become known) to the party bringing such an action.
8. General
8.1. Arbitration. Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The place of arbitration will be in Dallas or Collin County, Texas. In no event will the damages awarded exceed the fees paid by the Customer under this Agreement. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgement may be entered in the conformity with the decision in any court having jurisdiction. The prevailing party of any such controversy or dispute shall be reimbursed its reasonable attorney’s fees.
8.2. Assignment. Customer may not assign the rights granted hereunder or this Agreement, in whole or in part without MHDT’s prior express written consent.
8.3. Governing Law; Jurisdiction; Venue; Severability; Waiver. This Agreement shall be governed by the laws of the State of Texas without reference to its conflicts of law provisions. If any provision of this Agreement is found to be partially or wholly unenforceable, such provision shall be enforced to the maximum extent permissible, and the other provisions of this Agreement shall remain in full effect. A waiver of any breach of this Agreement shall not constitute a waiver of any other right for subsequent breach.
8.4. Force Majeure. Except for the payment obligations hereunder, neither party shall be liable for failure to perform its obligations under this Agreement if the failure results from circumstances beyond that party’s reasonable control. Time of performance of either party’s obligations hereunder shall be extended by the time period reasonably necessary to overcome the effects of such circumstances, provided, however, that if such circumstances continue beyond thirty (30) days, the party awaiting performance may cancel this Agreement or the Order affected.
8.5. Entire Agreement. This Agreement contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral agreements between the parties.
IN WITNESS HEREOF, the parties have caused this Agreement to be executed by duly authorized representatives of the parties as of the Effective Date.
Exhibit A
Instructions
1. Be sure that any silicon (or similar) window sealants are fully cured. Allow for no less than six weeks curing time.
2. For best results, install the film within two (2) weeks from delivery. The longer the film is on the roll the harder it is to handle.
3. Inspect the outside of the package for any damage. Do not open the package if the package is damaged. Please call MHDT for further instructions.
4. Be careful when opening the package. Sharp objects may cut or scratch the film.
5. Carefully unpack the contents and verify the order is complete.
6. If there is no damage to the film and your order is complete, please email info@electratint.com to confirm delivery and schedule your Remote Installation Support.
7. Examine the glass surfaces for scratches, marks, debris, and irregularities. Note the scratches, marks, and debris so they get special attention during the cleaning process.
8. Remove any debris causing sources from the room. This includes any pets, smoke, candles, air deodorants, or air fresheners.
9. Turn off any fans, heating or air conditioning. There should be no air movement in the room.
10. Make the room unavailable to others. Keep room ingress and egress to a minimum during the installation process.
11. Remeasure the windows to be sure they match the dimensions of the film. It is very common for windows and doors to not be completely square or rectangular. If there are slight irregularities, you can try to compensate when you install the film.
12. Be sure your clothing is dust and lint free.
13. Install the transformers and prepare the electrical connections. Test the transformers before you close them in. You will need to send pictures or video of this to MHDT.
14. It is best to clean the glass surfaces and then immediately install the film, so plan enough time. If you do not immediately install the film after you clean the glass, clean the glass again.
15. Clean the glass surfaces and remove all debris. Note any scratches in the window. If there are scratches or debris on the glass surface, the film will amplify the effect. For example, a tiny bit of debris will be ten or more times more noticeable. Once you put on the film, it is permanent. If there are too many scratches, you may want to replace the glass surface before you install the film.
16. Install the film. Start at the top and work downward. For big glass surfaces, MHDT suggests two people. You will need to send pictures or video of this to MHDT.
17. Complete the electrical connections. You will need to send pictures or video of this to MHDT.
18. Power on the film and power off a couple of times. You will need to send pictures or video of this to MHDT.
19. Remove the plastic coating from the film.
20. The film must be in the off state at least four hours per day.
21. Do not to touch or clean the film for two weeks after completion of the installation because the film needs to cure.
22. Do not expose the film to chemical agents, harsh detergents, alkaline or acid-based cleaners, or abrasive materials.