Hobart Service Legal Terms and Conditions

1. ACCEPTANCE.

These terms and conditions (“Terms”) and any 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 “Service 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 (“Services”) and repair, replacement and/or spare parts (“Parts”) 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/service-terms. The current version of these Terms shall apply to all Service Contracts executed (or, if no Service Contract is executed, for all Services performed and Parts delivered) 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 or acceptance of delivery of any Parts 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 Service Contract. In the event of a conflict, the following order of precedence will apply: (a) Service Contract; (b) Hobart Service Document terms; (c) these Terms.

2. SERVICES.

Hobart Service will perform Services and sell Parts as set forth in the applicable Service Contract through its branch office (“Branch Office”) local to the applicable Customer location (the “Site”). Hobart Service will perform the Services during the days and hours listed on the Service Contract (“Business Hours”). For each Call (as defined below), Customer shall pay Hobart Service for all time, travel and mileage charges, and all other fees associated with such Call, at the Hobart Rates (as defined below). Unless otherwise set forth in the Service Contract, additional charges apply to (i) Services provided to Customer locations further than 50 miles from the closest Branch Office, (ii) Services and travel time performed at Customer’s request outside of Hobart’s regular business hours, (iii) installation, inspections and proactive maintenance Services, (iv) taxes, tolls, and business licenses and permits applicable to Hobart Service’s operation as a business, and (v) any other Services not included in the Service Contract which Hobart Service performs for Customer. For such instances, Customer shall pay Branch Office at the Hobart Rates. “Hobart Rates” means (a) for Services, the service time, travel time, mileage charges and other fees at Hobart Service’s then current national rates for labor, travel, mileage and fees, and (b) for Parts, Hobart Service’s list price for such parts in effect when such Parts are used by Hobart Service or shipped to Customer. For Services that require use of specialized forms of transportation other than by conventional motor vehicles, Customer shall pay for all transportation, food, and lodging expenses incurred by Hobart Service. Permits required for performance of the Services are the responsibility of the Customer or the applicable third-party contractor. For Services that include the installation of new equipment, when any removal and/or disposal services are listed Hobart Service’s quotation, Hobart Service will remove and dispose of the existing equipment being replaced by the new equipment. Such existing equipment shall become property of Hobart Service upon removal. Customer waives all claims related to any such existing equipment removed and/or disposed of by Hobart Service, and such equipment cannot be returned to Customer under any circumstances. “Call” means a visit by Hobart Service to Customer’s location during which Hobart Service services a single piece of Customer’s equipment. Hobart Service may complete a Call in one trip or multiple trips. Should Services be performed on multiple pieces of equipment within the same visit, each piece is considered a separate Call.

3. PARTS.

Hobart Service will sell Parts for equipment covered in an applicable Service Contract at the Hobart Rates, subject to the availability of such Parts. Hobart Service may provide new or reconditioned Parts. Replaced parts and assemblies become property of Hobart Service upon removal. For Parts installed by Hobart Service, title and risk of loss transfers to Customer upon installation. For Parts shipped to Customer, title and risk of loss passes to Customer upon receipt by the carrier. Should Customer request expedited freight, Hobart Service will expedite the Parts at Customer’s cost. If Parts are damaged in transit, Customer must file a claim with the carrier, and Hobart Service is not liable for such damage. Concealed damage and shorted shipments must be reported to Hobart Service’s Parts Department within 5 days of delivery. Hobart Service will only install genuine OEM replacement parts. Hobart Service will not install parts provided by Customer that were not purchased from Hobart Service.

4. RETURNS.

Customer may only return Parts with Hobart Service’s written authorization, in Hobart Service’s sole discretion. Return requests must include the item and invoice number and reason for return. Customer will be responsible for any applicable restocking fees. No return requests will be accepted for any customer orders or after 90 days from the date of invoice. All returned Parts must be unused, in saleable condition, and in the original packaging. Except to the extent prohibited by law, Customer is responsible for shipping return Parts to Hobart Service’s designated location. Hobart Service will issue a credit or a refund at its election after the returned Part has been received and inspected. Failure to comply with this section will result in any credit being withheld or reduced accordingly in Hobart Service’s discretion. The following items are not eligible for return: non-stock parts, hazardous materials with a shelf life, electronic boards or electronic components that have been opened, commercial standard items (e.g., nuts, bolts, screws), and multiple quantity items if less than the original quantity is returned.

5. PRICING AND PAYMENT.

Prices and rates are in U.S. dollars and are subject to change without notice, unless otherwise set forth in a Service Contract. All payments are due within 30 days of the invoice date with approved terms (and COD if no credit terms have been offered by Hobart Service in writing). Hobart Service may withhold Services and Parts if Customer has any past-due invoices. Customer is limited to $25,000 annually in credit card payments in the aggregate, and all other payments must be made by ACH, wire or check. If this Service Contract automatically renews, the fees for any renewal term will be those contained in the “Renewal Invoice” provided to Customer by Hobart Service. Shipping charges will be applied based on the delivery method chosen by Customer. Shipping times are estimates only. Customer will be charged the amount of all applicable taxes (federal, state, provincial and/or local) based on the shipping address. Customer is responsible for all other taxes related to any purchases hereunder. Overdue invoices will incur interest at the rate of 1.5% per month or, if lower, the maximum rate allowed by law. Customer shall reimburse Hobart Service for all expenses, fees and/or costs (including attorney’s fees) incurred by Hobart Service while attempting to collect any overdue balances.

If Customer requests the use of any invoicing system or other document/record management system, Hobart Service shall add to its invoices all costs of using such system (including, without limitation,  3rd-party fees and internal integration costs ), and Customer shall be responsible for all such costs.

6. QUOTATIONS.

Quotations must be in writing and are only valid for 30 days for Service Product Quotations and 90 days for Equipment Installation Quotations. All quotations are subject to change or withdrawal without prior notice to Customer. Quotations are made subject to approval of Customer’s credit. Hobart Service may refuse orders and has no obligation to supply Parts or Services unless Hobart Service issues an order acknowledgement or upon the shipment of Parts or commencement of Services.

7. SITE SURVEY.

Hobart Service may conduct a Site survey, which is intended to identify problems which can be readily identified through visual inspection. However, Customer is solely responsible for the state of the Site (including electrical and plumbing lines). During a survey, Hobart Service is under no obligation to excavate or move any equipment, or otherwise disassemble or remove any component or accessory. Should problems be identified during the survey or during performance of Services, Customer shall remedy such problems at its own cost before Hobart Service continues performing any Services.

8. TERM; CANCELLATION.

Unless otherwise specified in a Service Contract, the term of this Agreement shall begin on the date of Customer’s acceptance and shall continue until the end of the Call to which the Agreement covers. Hobart Service may immediately terminate this Service Contract for cause if Customer becomes past-due on any invoices.

9. INDEMNITY.

Hobart Service agrees to indemnify Customer, its directors, officers, and employees from third-party claims, damages 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. Notwithstanding the foregoing, Hobart Service shall have no duties under this Section where the Services or Parts have been modified by any party other than Hobart Service. 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 supplying Hobart Service written notice of such claim immediately after the Customer has notice of such claim, (ii) Customer diligently 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 carries the following insurance: i) worker’s compensation meeting statutory requirements, ii) employer’s liability with limits of $1,000,000 per accident/ per disease, per employee/ per disease, policy limits, iii) 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, iv) 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. WARRANTY.

1. Hobart Service warrants to Customer that (i) it will perform the Services in a timely, competent and professional manner and in accordance with industry standards, (ii) during the Warranty Period, the Services shall conform to any specifications included in the Commercial Terms, (iii) the Parts shall be free of any liens, and (iv) during the Warranty Period, the Parts shall be free of material defects in workmanship and material.

2. “Warranty Period” means (i) with respect to Services defects, 24 Hours from completion of the Services with respect to any Services defect, and (ii) with respect to Parts defects, (x) other than in connection with Equipment installation, 90 days from original Part installation if installed by Hobart Service or from shipment if such Part is not installed by Hobart Service and (y) in connection with Equipment installation, 30 days from completion of the installation Services. Delays in Equipment startup shall not extend any Warranty Period.

3. For new Equipment (excluding Parts): New equipment purchases are subject to separate terms and conditions as provided by the original equipment manufacturer. Hobart Service is not responsible for any claims related to the new equipment itself.

4. The above warranties (the “Warranty”) apply directly to Customer and may not be assigned. Customer’s exclusive remedy, and Hobart Service ’s sole obligation, for a breach of the Warranty is for Hobart Service, at its option, to re-perform the Services, repair or replace the Parts, or credit Customer’s account for such defective Services or Parts. Hobart Service’s obligations herein are contingent upon (i) Customer making any claim under this Warranty during the Warranty Period, (ii) such claim including detailed explanation of any alleged deficiencies, (iii) Hobart Service being given a reasonable opportunity to investigate all claims; and (iv) Hobart Service’s examination of such Parts or Services confirming the alleged deficiencies and that the deficiencies were not caused by accident, misuse, neglect, improper installation (other than by Hobart Service), unauthorized alteration or repair, or improper testing by Customer or a third party. EXCEPT AS SET FORTH ABOVE, HOBART SERVICE MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE).

12. EXCLUSIONS.

Unless otherwise specified in a Service Contract, the following is not included in the scope of coverage and will be subject to additional charges at Hobart Rates: any repair costs (including labor, parts and travel expense) required due to (i) damage by fire, water, burglary, accident, abuse, intentional acts of destruction, acts of God or acts of terrorism, (ii) Customer’s failure to operate or maintain equipment in conformity with Hobart Service’s the manufacturer’s recommended operating and maintenance instructions, (iii) Customer’s inappropriate or improper use or improper cleaning, improper water conditions, Customer’s failure to maintain water treatment equipment, and the inappropriate or improper use or service by any third party and/or (iv) relocation, adjustment, repair, maintenance or service of the equipment by any Customer personnel or any third party without Hobart Service’s supervision or prior consent. Hobart Service shall have no obligation to provide Service or Parts for any equipment that is damaged due to any of the above causes until such equipment is repaired by Hobart Service and paid for by Customer at Hobart Rates.  In addition, the following are not included and will be subject to additional charges: (a) Customer requested calibrations and/or adjustments to alter temperature or product appearance; (b) attachments; (c) accessories such as bowls, adapters, bowl trucks, attachment shelves, agitators (beaters, whips, dough hooks, etc.), splash covers and extension rings; (d) expendable items such as plastic flight links, curtains, blades, slicer knives, sharpening devices, pulley wipes, shredder plates, fryer baskets, customer removable seals, door gaskets; (e) consumable components or ordinary wear items including but not limited to; rinse arm strainers, final rinse nozzles, filters (including water filters), wash arm end caps, lower arm bushing, rollers, retaining rings, wash arm plugs, dish-limit rubber bumper, lamps, dish racks; (f) consumable items, such as paper supplies, filters, printing materials, and dishwashing and sanitizing compounds; (g) certain refrigeration Parts, such as condenser and evaporator coils, ice machine plates, refrigeration or HVAC motors 1hp or larger and compressors 1hp or larger, Flight Type dish machine conveyer assembly, refrigeration gasses (< lbs. or heat exchangers, (h) water related issues; (i) feature upgrades, including firmware, software, label format, or graphics; (j) welding services; (k) wireless DPAC network assembly; and (l) Customer network related issues for connected devices. Loaner equipment is not included but may be provided by local Branch Offices at additional cost based on availability. Repair, but not replacement, of fryer tanks, boiler and booster tanks that are subject to ITW/Hobart/Traulsen original manufacturer equipment is covered. Additionally, notwithstanding anything to the contrary contained herein or any Service Contract, Hobart Service reserves the right to refuse to provide replacement parts for or provide any Services with respect to any Equipment, or parts or components for Equipment, that is beyond its standard or recommended useful life (as determined by Hobart Service) (such date, the “End of Life”). Hobart Service is not responsible for any losses, claims, damages or expenses related to Customer’s continued use of any Equipment, parts and/or components after its End of Life.

13. 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, affiliates or agents to the extent necessary for the performance of this Agreement. Such employees, affiliates and agents must be bound to a duty of confidentiality and non-use substantially similar to the one contained herein. Recipient shall be responsible for any breach by its employees, affiliates 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 any information that: (a) is or becomes generally available to the general public (other than through breach of this section); (b) was known to Recipient prior to its receipt from Provider; (c) Recipient obtained from an independent third party who Recipient reasonably believes does not have an obligation of confidentiality to Provider; (d) is independently developed by Recipient without reference to the Confidential Information of Provider; or (e) is required to be disclosed pursuant to court order or other similar legal or governmental process. Upon Provider’s written request, Recipient shall destroy or return all Confidential Information and any copies thereof, except for digital copies that cannot be readily deleted and which are automatic back-up or archival server copies which shall be deleted in Recipient’s ordinary course of business, provided such digital copies shall remain subject to the terms herein until such destruction occurs. The parties agree that, in addition to any other relief allowed under this Agreement, by law or in equity, the Provider may seek injunctive relief in any court of competent jurisdiction for any breach of this section. The obligations of confidentiality and non-use contained herein will survive the Term for a period of 5 years.

14. CUSTOMER RESPONSIBILITIES.

For any on-Site Service, Customer shall (a) prepare the Site for the Services (and if the Site is not so prepared, Hobart Service may charge Customer for any delay and/or travel time at the Hobart Rates; and if, in Hobart Service’s opinion, performance of Services would pose a safety risk, Hobart Service may refuse, without any liability, to provide Services and suspend Services or vacate all personnel from any Site and Customer shall be responsible for payment of the cost of any delay and/or travel time at Hobart Rates); (b) provide Hobart Service with at least 30 days’ written notice of any rules, laws and/or requirements applicable to the Services, including any required permits and licenses, that are applicable to Customer’s local jurisdiction; (c) provide at least 1 business day notice of cancellation of any Service order (and if no such notice is provided, Customer is responsible for any costs incurred by Hobart Service caused by such cancellation); and (d) remain liable for all damages or injuries caused by or contributed to by the negligent acts or willful misconduct of Customer, its employees, agents, invitees, and representatives that may occur on the site and indemnify Hobart Service for the same.

15. LIMITATION OF LIABILITY.

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 THESE TERMS OR IN CONNECTION WITH THE SALE OF PARTS OR SERVICES EXCEED THE PURCHASE PRICE OF THE SPECIFIC PARTS OR SERVICES AS TO WHICH THE CLAIM IS MADE.

16. HOBART SERVICE PERSONNEL.

Customer will not solicit or hire, directly or indirectly, any of Hobart’s employees that interacted with Customer while Hobart Service provides Services and/or Parts and for a period of 12 months after the conclusion of such Services. A Hobart Service employee’s response to a general advertisement not specifically targeting employees of Hobart Service shall not be deemed a violation of this Section.

17. MISCELLANEOUS.

(a) Additional terms from the local Branch Office may also apply to the Service Contract, and if applicable will be provided by the local Branch Office prior to sale. (b) Except for payment obligations, neither party will be responsible for failure to perform in a timely manner under the Agreement when such failure results from events beyond its reasonable control (each an “Event of Force Majeure”), including acts of God, acts of war, blockades, pandemic, labor disputes and Part shortages. For each Event of Force Majeure, the affected party’s time for performance will extend for such time as reasonably necessary to enable that party to perform. (c) Nothing in the Agreement or the course of dealing of the parties may be construed to create a partnership, joint venture, or agency or as authorizing either party to obligate the other in any manner. (d) The Agreement may not be assigned or transferred by Customer without Hobart Service’s prior written consent. (e) Any dispute related to the Agreement will be governed by and construed according to the laws of the state of Illinois and litigated exclusively in the state or federal courts of the state of Illinois. The parties hereto expressly release and waive any and all rights to a jury trial. The parties agree that the UN CISG will not apply to the Agreement. In any action concerning any provision of this Agreement, the prevailing party is entitled, in addition to the relief granted, to a reasonable sum for their reasonable and documented attorneys’ fees incurred, provided that if each party prevails in part, such fees will be allocated in the manner as the court determines to be equitable in view of the relative merits and amounts of the parties’ claims. (f) If any provision herein is held to be unlawful or unenforceable, the remaining provisions herein will remain in effect. (g) The Agreement constitutes the entire agreement between the parties and any of their affiliates with respect to the Services and Parts covered by the Agreement, and supersedes any prior agreements, understandings, representations and quotations with respect thereto.