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HomeMy WebLinkAboutScott Aviation - 1999 11 09 \ ~ ,"! ". j I ",.," " . 1'. . SCOTT AVIATION A SCOTT TECHNOLOGIES COMPANY IN-HOUSE REPAIR CENTER AGREEMENT This In':House Repair Center Agreement made in duplicate this-Lday of.JiQL, 199~, by and between Scott Aviation ("Scott"), a division of Scott Technologies, Inc., a Delaware corporation, and Winter Sprinqs Fire Department (the "IRC") located at 102 North Moss Road. Winter Springs, FL 32708 WITNESSETH WHEREAS, Scott has developed and manufactures the a series of health and safety products, accessories, and replacement parts(col1ectiv~ly, the "Scott products"); WHEREAS, the IRC has purchased and owns certain of the Scott products WHEREAS, the IRC, as an independent entity, desires to perform certified overhaul level inspection, repair, and service to such Scott protective equipment owned by the IRe; and WHEREAS, Scott desires to appoint the IRC as an authorized center for inspection repair and service of such Scott equipment owned by the 'IRC, subject to all of the conditions of this Agreement, and the IRC desires to serve in such capacity. NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the IRC and Scott agree as follows: . ARTICLE I APPOINTMENT OF THE IRC 1.0 Appointment Subject to the following terms and conditions, Scott hereby grants the IRC the right to inspect, repair, and service the Scott products owned by the IRC and set forth in Exhibit A attached hereto. Exhibit A, which is incorporated by reference, may be amended from time to time by Scott at Scott's sole discretion; and any such amendment shall be deemed to have been included on Exhibit A as if originally set forth here. 1.1 Authorized Service The IRC aclrnowledges that it may not operate as an IRC or Authorized Service Center for any other entity owning or using Scott products. 1.2 Sub-Contracted Services IRC aclrnowledges that only those IRC's who have entered into a valid written IRC agreement with Scott may act as Scott IRC's.. IRC shall not appoint or otherwise purport to authorize anyone else to act as an IRC, representative or agent of Scott to perform certified overhaul level inspection, repair or service to Scott products without the express written consent . . 1 '. ,~ ' of Scott. The IRC hereby aclmowledges the extreme health and safety risks potentially posed to users who do not receive pro'per service. for the Scott products from an IRe or Authorized Scott Service Center. 1.3 Service Center Locations IRC agrees to inspect, repair, and service the Scott Products soiely from the location identified above as the IRC's address or from any existing service center location authorized by Scott in writing as of the date of this Agreement. The IRC agrees to provide prior written notice to Scott of aIiy change in location or address. ARTICLE n IRC DUTIES 2.0 IRC Compliance with Applicable Procedures and Regulations The IRC agrees to inspect, repair, service and provide training of its end users in the proper use of Scott Products in a safe, timely and professional manner; to use only Scott- authorized parts purchased from authorized Scott Distributors ("Scott Parts"), test equipment and tools in performing such c.ertified overhaul level inspection, repair and service; to perform all such certified overhaul level inspection, repair and service in accordance with established current and future revisions to all applicable governmental regulations and to all Scott procedures set forth in the In-House Repair Center Handbook, Product manuals, instructions, guides and service bulletins. ' 2.1 Scott or Equivalent Training Programs During the term of this Agreement,' with respect to Scott Authorized Service Center Technician training and certification, the IRC agrees as follows: A) The IRC will employ as a minimum one technician holding a current Scott Overhaul Level Certificate as described in the In-House Repair Center Handbook. B.) At its own expense, the IRC will cause each technician holdmga Scott Overhaul Level Certificate to receive on an ongoing basis such training' from Scott in inspecting, repairing and/or servicing Scott products as necessary to retain certification. C.) The IRC agrees that only those technicians having a current Scott Overhaul Level Certificate ("Scott Certified Technicians") shall be authorized to perform overhaul level inspection, repair and service of the Scott products listed in Exhibit A A Scott Certified Technician can only retain a hislher Scott Overhaul Level Certificate in conjunction with an authorized IRC. If such Technician is no longer employed by the IRC, hislher Scott Overhaul Level Certificate will automatically expue. 2.2 IRC's Maintenance of Testing. Equipment During the term of this Agreement; and as a prerequisite to any inspection, repair and service of Scott Products, the IRC agrees to purchase and maintain Scott required testing equipment as follows: . A) In order to maintain the quality and the National Institute for Occupational Safety and Health ("NIOSH") certifications of the Scott products, being inspected, repaired 2 '. ", I or serviced, the IRe will purchase from Scott such test stands or other testing equipment manufactured by Scott and/or designated by Scott. required for the 'certified overhaul level inspection, repair, and service of Scott products in accordance with Scott procedures. . Scott manufactured test equipment. or other testing equipment designated by Scott is to be maintained.in good working order and calibrated following the maintenance schedule as outlined in the In-House Repair Center Handbook, or as directed by Scott. Scott manufactured test stands are to be calibrated solely for Scott products and may be used' only by Scott Certified Technicians and may not be used for testing any other device other than Scott products. . B.) In order to maintain the quality and the NIOSH certifications of the Scott products being inspected; repaired or serviced, theIRC will purchase such commercially available test equipment specified by Scott as required for the overhaul level inspection; repair, and service of Scott products in accordance with Scott recommended procedures. Such test equipment must be maintained in good working condition following the test equipment manufacturers' recommendations. The IRC agrees to adhere to the recommendations of the test equipment manufacturer. C.) The IRC may be required to utilize software programs licensed to the. IRC by Scott or third party software suppliers for the inspection, repair and service of Scott products. The IRC agrees that its use of such software programs will be pursuant to the terms and conditions of the Software License Agreement, attached hereto as Exhibit B, or such other software license which either Scott or a third party supplier reqUIres. 2.3 IRC Warrantv Claims The IRC agrees that, the IRC technicians will use their best efforts to determine the validity of the warranty claim and provide corrective action in accordance with the Warranty Procedure as described in the In-House Repair Center Handbook. The IRC agrees to Scott's determination as final concerning the. validity of all warranty claims and the total amount of reimbursement due the IRC as sole compensation for warranty service. IRC agrees the total reimbursement of any warranty claim submitted to Scott by the IRC is limited to parts replacement only. The IRC acknowledges that it has paid no fee to Scott in connection with this Agreement. 2.4 Adequate Records The IRC agrees to keep accurate and detailed records of all inspection, repair and service of Scott Products as per the procedure described in the In-House Repair Center Handbook. All inspection, repair and service records'should be kept for a minimum of three (3) years from the date the transaction, inspection, repair, ,and/or service occurred. 2.5 Compliance with Certain Procedures The IRC agrees that if at any time the IRC receives from Scott a notification of certain procedures that the IRC is to follow concerning the recall or other safety or product improvement campaign or program, the IRC shall comply with it. If for any reason, the IRC fails or refuses to 3 ..\r,.. . ~.. " , comply with the procedures specified in such notification, the IRC assumes liability for non- compliance. The IRC acknowledges the necessity of complying with recall and other safety or product improvement notices to insure the protection of the user and to comply with governmental laws, orders, rules, and regulations. ' ARTICLE III SCOTT DUTIES 3.0 Product and Service Information Scott agrees to furnish the IRC from time to time such quantities of manuals, instructions, guides, service bulletins, and, other matenals pertaIning to the inspection, repair and service of Scott products. ARTICLE IV THE PARTIES RELATIONSIDP 4.0 The IRC is an Independent Contractor The IRC is and will hold itself out to be an independent contractor and not an agent, partner, employee, or franchisee of Scott. ARTICLE V INTELLECTUAL PROPERTY AND CONFIDENTIALITY 5.0 No Intellectual Pro?erty Rights Granted Nothing in this Agreement shall be construed as conferring upon the IRC any right or interest in any trademark or name or registration thereof, or in any designs, copyrights, patents, trade secrets, trade names, signs, emblems, insignia, symbols and slogans, other marks, or any Scott intellectual property used in connection with Scott's products. ' 5.1 Confidentiality All business information and materials containing proprietary information of Scott disclosed to the IRC by Scott or its representative, agent, or employee' or otherwise learned by the IRe heretofore or hereafter are and shall be treated by the IRe as confidential during the term of this Agreement and at all times thereafter. ARTICLE VI TERMINATION 6.0 Term of Agreement, ' This Agreement shall become effective as of the date hereof and shall continue in full force and effect unless terminated in the manner herein below provided. 6.1 Termination Rights A.) Either party may terminate this Agreement with or without cause upon thirty (30), days written notice to the other party. 4 " i ' B.) It is agreed that this Agreement will ,automatically terminate without notice upon the occurrence of any of the following; (i) an assignment by the IRC for the benefit of creditors; (ii) the institution of voluntary or involuntary proceedings against the IRC in bankruptcy, or under any other insolvency or similar law; (iii) the dissolution of the IRC; or (iv) the failure of the IRC to comply with any of the terms, provisions,. obligations, representations or warranties. 6.2 Waiver of Damages Neither the IRC nor Scott shall not be liable for damages due to the expiration or termination of this Agreement in accordance with its provisions. The expiration or termination of this. Agreement, regardless of the manner or nature of expiration or termination, shall not entitle the IRC or Scott to any reimbursement, compensation, or damages, including, without limit, severance of any kind, recoupment of capital investment. 6.3 Return of Test Equipment Upon termination or expiration of this Agreement, Scott reserves the right to require the IRC to return all manuals, instructions, guides, service bulletins, and other similar materials furnished by Scott and all Scott manufactured test equipment (Scott Test Stands) F.O.B. Scott's plant or other destination specified by Scott, when this request is made in writing to the IRe. The IRC will be credited in the amount equal to the IRC's cost at the time of purchase of the Scott manufactured test equipment, less any repair costs for the Scott manufactured test equipment so as to render the equipment properly operational. 6.4 Continuing Obligations Termination of this Agreement shall not effect the IRC's obligations under Article V hereinabove, and such obligations shall remain in full force and effect. The IRC agrees that it will not harm or attempt to hann the reputation of Scott or its products. ARTICLE VII GENERAL '7.0 No Waiver The failure of Scott to enforce at any time any provision of this Agreement, or to exercise any option which is herein provided, or to require or fail to require at any time performance by the IRe of any provision hereof, shall in no way affect the validity or act as a waiver of this Agreement, or any part hereof, or the right of Scott thereafter to enforce it. 7.1 Notice Any notice or other communication required by this Agreement will be deemed to have been duly given if deposited'in the U.S. mail, postage prepaid, and addressed to the party entitled to'receive it at the address set forth above. 7.2 Governing Law , , This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina. Any dispute hereunder shall be determmed in accordance with the laws cifthe State of North Carolina, except to the extent that North Carolina law pertaining to "choice 5 " J,' of law" would work to apply the law of any jurisdiction other than North Carolina, then North Carolina's law pertaining to choice oflaw'shall not apply, it being the intent of the parties hereto that the substantive and procedural law of North Carolina shall govern any dispute hereunder. 7.3 Severability rfany term or provision of this Agreement shall to any extent be determined to be void? invalid, or unenforceable, or should violate any law of the United States, this Agreement shall be considered divisible as to such .provisions, both the enforceability or validity of the remainder of the Agreement shall not be effected: . 7.4 Entire Agreement This Agreement constitutes the ~ntire agreement between the IRC and Scott with respect to the subject matter of this Agreement. The IRC and Scott agree that any and all prior and contempo~aneous communications, either written or oral, and all previous and contemporaneous agreements, if any, between. the parties with respect to the subject matter hereof are automatically canceled by the signing of this Agreement. The IRCaclmowledges and agrees that it is not relying upon any statement, representation, or communication of any kind not contained in this Agreement. No change, amendtrient, or modification of this Agreement shall be effective unless made in writing and signed by both parties. 7.5 Assignability This Agreement cannot be directly or indirectly assigned, sold, transferred or encumbered by the IRC, in whole or in part, without authorization in writing from Scott. Scott may~ assign this Agreement to any affiliate. of Scott, any successor to its business or purchaser of substantially all of its assets. 7.6 Captions . The captions contained herein shall not be deemed to be part of this Agreement but are merely for the convenience of the parties. 7.7 IRe's Indemnification of Scott The IRC agr~es to indemnify and hold Scott harmless from any and all claims, liability, losses, or damages of any kind whatsoever, whether direct or indirect, or consequential; including, without limit, attomey1s fees or other legal expenses of any kind whatsoever, arising out of the following; (i) any acts or omissions by the IRC or the IRC's.representative, whether such repres~ntative is appointed direct, apparent, implied, or otherwise in c'onnection with the IRC's purchase, possession, use, inspection, ,repair, service, or sale of Scott products; ii) the ,IRC's breach of any terms or conditions of the Agreement. . 7.8 Limitation of Claims \ All claims hereunder must be brought nO,t later than one (1) year after such claim arose or the party having such claim shall be deemed. to have waived and forever released it; provided that for this purpose, a claim will be deemed to have arisen at the time the party asserting the claim should have first become aware of it. In no event shan this provision be construed to extend the period of limitations beyond the' otherWise applicable period. of limitations as provided in the pertinent North Carolina statute~:f oflimitation or repose. 6 . 1 , . , 7.9 Third party Beneficiaries Scott and the IRC agree that this Agreement is solely for their benefit 'and those existing or future allowable successors and assigns specified in Section 7.5 of this Agreement and it does not, nor is intended to, create any rights in favor of, or obligations owing to) any other related or unrelated parties, if any, or anyone else. 7.10 Attornev's Fees In the event that any legal action or proceedin'g is taken to enforce or construe the provisions of this Agreement, the prevailing party (including in any bankruptcy proceeding)-shall be awarded legal expenses and reasonable attorney's fees incurred in the defense or prosecution thereof as part of the judgment or. decision resulting from such action or proceeding; provided that in no event shall the award oflega1 expenses and attorney's fees to the claimant exceed the actual amount of judgment or decision. ' 7.11 Binding Arbitration Scott and the IRC agree to submit all controversies, claims, and disputes relating to this Agreement to final and binding arbitration. Any arbitration proceeding shall t~e place in North Carolina and shall be conducted in accordance with the then current arbitration rules of the American Arbitration Association. This agreement to submit all controversies, claims, and disputes to.final and binding arbitration. shall be specifically enforceable by either Scott or the IRC. It is further agreed that the prevailing party in such proceeding shall be awarded legal expenses and attorney's fees in accordance with the terms and limitations of Section 7.10 of this Agreement. ,~ 7.12 Counterparts This Agreement may be executed in on or more counterparts, all of which together constitute one Agreement. . IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. SCOTT AVIATION A Division of Scott Technologies t\'~ \~:Witness) .~,O :$.v.~ Title: \)\~Vk~ 'D~ (Witness) IN-HOUSE REPAIR CENTER ~J A't')+e.r 5ff'I"1j 5 F:~e. bfjlArl/Y'JtYL[ By,- ~ I. ;:Lj~ Title: P'/re. CJ,.., I (/ v 7 Exhibit A Scott Products Q Exhibit B Software License [to be provided at a later date] ()