Service Training Terms & Conditions of Sale

1. TERMS.

These terms and conditions (“Terms”) and any Training Quotation, Statement of Work, Service Product Quotation, Equipment Installation Quotation, any other Quotation issued by Hobart Service, Hobart Product Guidelines, or any agreement signed by an authorized representative of each party (each, a “Training Contract”) to which these Terms are attached or referenced, any Hobart Service acknowledgment or invoice, and all documents incorporated by reference herein or therein (“Hobart Service Documents” and together with these Terms and the relevant Service Contract, the “Agreement”), constitute the complete terms governing the sale of services by Hobart Service, a division of ITW Food Equipment Group LLC (“Hobart Service”) to customer purchasing from Hobart Service (“Customer”). Hobart Service may update these Terms at any time without notice. For the current version of these Terms, visit https://www.hobartcorp.com/hobart-notices-and-policies/service-training…. The current version of these Terms shall apply to all Training Contracts executed (or, if no Service Contract is executed, for all Services (as defined below) performed) after such website has been updated. HOBART SERVICE HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY CUSTOMER, WHETHER OR NOT CONTAINED IN ANY OF CUSTOMER’S BUSINESS FORMS OR ON CUSTOMER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS WILL BE OF NO EFFECT. No site usage agreement or any other click through agreement required to access a website or on a website will have any binding effect whether or not Hobart Service clicks on an “ok,” “I accept,” or similar acknowledgment. Terms contained or referenced in Customer facility sign-in logs, safety waivers or other similar documentation are hereby rejected and shall not have any binding effect on Hobart Service or its employees. Customer's order of any Services manifests Customer's assent to, and acceptance of, the Agreement. Additional or different terms applicable to a particular sale may be specified in the body of a Hobart Service Document or agreed to in writing by the parties in a Training Contract. In the event of a conflict, the following order of precedence will apply: (a) Training Contract; (b) Hobart Service Document terms; (c) these Terms.

2. SERVICES.

Hobart Service shall perform the training and/or technological support services specified in the applicable statement(s) of work that reference this Agreement (each statement, an “SOW”; such services, the “Services”) in accordance with all terms of this Agreement and the applicable SOW. In the event of any inconsistencies between this Agreement and an SOW, the terms of the SOW shall govern solely for the purposes of that SOW.

3. TERM.

This Agreement will commence as of the Effective Date and, unless sooner terminated as provided below, will terminate without notice on the date on which Hobart Service completes the Services.

4. COMPENSATION. 

The fees for the Services (“Fees”) and other terms regarding compensation shall be set forth in the applicable SOW. Customer shall pay undisputed invoices for Fees and reimbursable expenses within 30 days after receipt of an accurate invoice or as otherwise specified in the Training Contract or applicable Hobart Service Document.

5. LIMITED WARRANTIES. 

Hobart Service warrants to Customer that (a) Hobart Service shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services and (b) neither the Services nor any Deliverables (as defined below) provided shall infringe any third-party intellectual property rights. Hobart Service makes no warranty as to the results of any Services. If Hobart Service breaches any warranties in this Section, Hobart Service will, at Hobart Service’s option and as Hobart Service’s sole liability and Customer’s sole remedy, reperform any nonconforming Services or credit Customer’s account for any nonconforming Services. Except as set forth in this Section, Hobart Service makes no warranty or representation of any kind, express or implied (including no warranty of merchantability or fitness for any particular purpose).

6. CONFIDENTIALITY. 

Each party may obtain information that is of a proprietary or confidential nature of the other (“Confidential Information”). The recipient (“Recipient”) shall maintain the confidentiality of all Confidential Information of the provider (“Provider”). Recipient shall not disclose Provider’s Confidential Information except to its employees or agents to the extent necessary for the performance of this Agreement. Recipient shall be responsible for any breach hereof by its employees and agents. Each party further agrees not to use any of Provider’s Confidential Information other than in connection with the performance of this Agreement. “Confidential Information” does not include information that: (a) is generally available to the public (other than through breach of this section); or (b) is independently developed by Recipient without reference to the Confidential Information. The obligations of this Section will survive the termination or expiration of this Agreement for a period of 5 years.

7. IP.

Hobart Service or its licensors (if any) shall own all patent rights, trademarks and service marks, copyright rights and trade secrets, and other materials, ideas, inventions, methods, processes, data, databases and other information created, produced or composed by Hobart Service or any of Hobart Service’s representatives, suppliers, or affiliates in the course of or pursuant to the performance of work under this Agreement (collectively, “Work Product”), except to the extent the foregoing contain Customer’s Confidential Information. Customer acknowledges that Hobart Service and its suppliers own all rights in Hobart Service’s inventions, patents, copyrights, names, trademarks and service marks and agrees that Customer has no right and will not use such inventions, patents, copyrights, names or marks in any manner other than as necessary to complete any training provided by Hobart Service (and for no other purposes than in connection with receiving such training). Hobart Service grants to Customer a royalty-free, non-exclusive, non-sublicensable, non-transferable worldwide license to use the Services and any items identified in a particular SOW to be delivered by Hobart Service to the Customer hereunder (“Deliverables”) and the Work Product and know-how included in or with the Services and/or any Deliverables, in its internal business use during the Term.

8. TERMINATION. 

This Agreement and/or any SOW may be terminated: (a) by either party upon at least 30 days’ written notice for convenience; (b) by either party immediately if the other ceases to be a going concern, has a receiver appointed for it or applied for, a petition in bankruptcy filed by or against it, or makes an assignment for the benefit of creditors; or (c) by either party upon 10 days’ written notice if the other party materially breaches any provision of this Agreement and fails to cure such breach within 10 days of receiving notice thereof. Upon termination of this Agreement or an SOW, Hobart Service shall be entitled to be paid for: (i) Fees for undisputed Services rendered through the date of termination, and (ii) all undisputed reimbursable expenses incurred through the date of termination.

9. INDEMNITY.

Hobart Service shall indemnify Customer, its directors, officers, and employees from third-party claims and expenses (including reasonable attorneys’ fees) to the extent those losses were directly caused by (i) the gross negligence or willful misconduct of Hobart Service or its employees, (ii) Hobart Service’s failure to comply with applicable laws, or (iii) Hobart’s infringement of any third-party intellectual property rights. Hobart Service does not indemnify Customer for any claims, damages or expenses (or legal expenses) to the extent caused by Customer’s (or its agent’s or employees’ or any third party’s) fault. The above obligations are contingent upon (i) Customer immediately supplying Hobart Service written notice, (ii) Customer cooperating with Hobart Service in the defense and settlement of such claim; and (iii) Customer allowing Hobart Service the full right to defend and settle such claim.

10. INSURANCE. 

Hobart Service shall carry the following insurance: (a) worker’s compensation meeting statutory requirements, (b) employer’s liability with limits of $1,000,000 per accident/ per disease, per employee/ per disease, policy limits, (c) commercial general liability including products and completed operations of $2,000,000 per occurrence, $4,000,000 aggregate, $4,000,000 products and completed operations aggregate with Customer as an additional insured per form U GL 11 75 D CW or replacement thereof, and (d) commercial auto liability with combined single limits of $1,000,000 per accident for owned, hired and non-owned vehicles. Hobart Service will provide evidence of insurance upon request of Customer. Hobart Service may self-insure any coverage.

11. EXCLUSIONS.

Neither party will be liable for indirect, incidental, special, punitive or consequential damages, or for down time, lost profits or commercial losses, whether or not based upon a party’s negligence or breach of warranty or strict liability in tort or any other cause of action. In no event will either party’s liability under this Agreement exceed the amount of Fees paid or payable under the applicable SOW. Customer acknowledges that it has not relied on any representation or warranty made by Hobart Service, or any other person on Hobart Service’s behalf, except as expressly stated in this Agreement or any SOW. Additionally, Customer acknowledges that the Services provided by Hobart Service relate to the maintenance and repair services of commercial cooking equipment, which by their nature are dangerous and risky, and agrees that only Customer personnel with training and knowledge adequate to prepare them for exposure to the Services will participate in any of the Services. Customer waives and releases all claims and liabilities for injuries, death, losses, and damages against Hobart Service, and its successors, affiliates, insurers, and assigns, and each of their past, present, and future officers, directors, shareholders, agents, attorneys, and employees (collectively referred to as “Released Parties”), relating in whole or in part to the Services or any actions taken by Customer in reliance on the Services. Customer shall indemnify the Released Parties from any and all claims and liabilities for injuries, death, losses, and damages brought by any Customer employee or third party against the Released Parties relating in whole or in part to Hobart Service’s performance of the Services, except for matters for which Hobart Service must indemnify Customer pursuant to Section 9.

12. NOTICES.

All notices given hereunder must be in writing and delivered: (a) in person, (b) by a nationally recognized courier service or via certified mail, postage prepaid, to the address of the other party specified above, or (c) via email at the email address specified by the applicable party in writing, so long as the recipient confirms receipt of such email. Notice is effective upon the earlier of (i) receipt by the addressee, and (ii) two business days following posting. If a notice sent by Customer concerns a default, termination or legal action, a copy must be sent to Illinois Tool Works Inc., 155 Harlem Ave., Glenview, IL 60025, Attn: Legal Dept. – Commercial Group, with a copy to legalnotices@itw.com.

13. CIRCUMSTANCES BEYOND CONTROL.

Neither party shall be liable for delays or failures to perform (except for payment obligations) by reason of circumstances beyond its reasonable control, including acts of God, fire or other casualty, embargo, war or violence, labor disputes, raw material shortages, material increases in costs of raw materials, interference with transportation, or by reason of laws or regulations or any other act of government authority; provided that non-performing party must notify the other as soon as practical and keep the other informed of any change in circumstances.

14. ENFORCEMENT; REMEDIES; ASSIGNMENT.

The failure of either party to enforce at any time or for any periods of time any provision of this Agreement shall not be construed as a waiver thereof or of that party’s rights thereafter to enforce each and every provision hereof. Except as specifically stated herein, all rights and remedies under this Agreement are cumulative, and the exercise of any right or remedy herein provided shall be without prejudice to the right to exercise any other right or remedy provided for herein or at law or in equity. Neither party may assign this Agreement or otherwise transfer its rights or obligations hereunder without the prior written consent of the other party. A merger, sale or change of control shall be considered an assignment. This Agreement shall inure to the benefit of and shall be binding upon each of the parties hereto and their respective permitted successors and assigns. Hobart Service is an independent contractor and shall not be deemed to be an employee or agent of Customer. This Agreement is not a partnership or joint venture between the Hobart Service and Customer.

15. ENTIRE AGREEMENT; MODIFICATION.

This Agreement and any SOWs and schedules hereto (which are expressly incorporated herein) contain the entire agreement between the parties in respect to the subject matter hereof, and any representations, promises or conditions not incorporated herein shall not be binding on either party. Except as specifically set forth herein, this Agreement shall only be amended in a writing signed by both parties. This Agreement supersedes all prior understandings and agreements relative to the subject matter hereof and such understandings and agreements are hereby terminated.

16. GOVERNING LAW.

This Agreement is to be construed and interpreted in accordance with the laws of Illinois, excepting its conflict of laws provisions and the UN CISG. The parties submit to the jurisdiction of the state and federal Illinois courts. In any action concerning this Agreement, the prevailing party is entitled, in addition to the relief granted, to a sum for their reasonable and documented attorneys’ fees, provided if each party prevails in part, such fees will be allocated as the court equitably determines.

17. SEVERABILITY. 

In the event that any provision of this Agreement shall be deemed illegal or unenforceable under applicable law, the remaining provisions of this Agreement shall not be affected thereby, and each provision shall be enforced to the maximum permissible extent.