These TERMS AND CONDITIONS (this “Agreement”) are part of a binding contract
between J. W. GEOPFERT CO., INC.., an Ohio corporation dba THE GEOPFERT
COMPANY (“Seller”) and the party and its affiliates (collectively, “Customer”) as may be
specified in the written proposal or documentation provided by Seller (the “Proposal”) or as may
have delivered a purchase order to Seller, and relate to all sales and services from Seller to
Customer from time to time thereafter.
1. ENFORCEABLE CONTRACT. This Agreement and the Proposal shall be referred to
herein as the “Contract.” Customer’s assent to this Agreement shall be conclusively presumed
from Customer’s acceptance of the Proposal or presentation to Seller of a purchase order. This
Agreement governs all sales by Seller to Customer. Where there may be a conflict between this
Agreement and the Proposal, the Proposal shall control. The Contract constitutes the entire
agreement between Seller and Customer, and all prior and contemporaneous negotiations,
understandings, and agreements, whether oral or written, are merged herein and the rights and
obligations of the parties shall be as set forth as follows, regardless of any terms contained on
any writing originated from Customer, including without limitation Customer’s purchase order
(collectively, “Customer Documents”). Seller rejects and objects to any of Customer’s
inconsistent or additional terms, which shall be conclusively deemed material alterations.
Seller’s failure to further object to provisions contained in Customer Documents shall not be
deemed an acceptance thereof. Seller’s acceptance of any purchase order is expressly limited to
and conditioned upon Customer’s acceptance of the Contract. Any conduct by Customer which
recognizes the existence of a contract, including acceptance of delivery or payment, shall be
deemed an acceptance of the Contract, even if Customer purports to accept under terms within
Customer Documents. In the event of a conflict between the Contract and any Customer
Documents, the Contract shall control. This Agreement may be amended by Seller from time to
time, with the new effective date set forth at the end of this Agreement; Seller’s assent to such
amended Agreement shall be conclusively established by any of the following, occurring after
such new effective date: (a) Seller’s failure to object to such amended Agreement prior to the
periodic renewal of the term of the Contract, or (b) Seller’s order incorporating such terms.
2. TERM OF CONTRACT. This paragraph shall only apply if the Proposal reflects a
maintenance contract with a periodic term. This term of the Contract shall begin on the date
signed by Customer, and shall continue for a period of one (1) year thereafter. The Contract shall
automatically renew for continual terms of one (1) year each, unless either party shall notify the
other in writing of its intentions not to renew, at least sixty (60) days prior to the date of renewal.
In renewal terms, Seller shall be entitled to increase prices beyond the pricing that may be set
forth in the Proposal. This may include increases not to exceed the greater of: 5% and the
Consumer Price Index year-over-year increase, and increases resulting from the addition of
equipment.
3. PRICE AND PAYMENT. Prices do not include sales, use, tariffs, excise or any similar
tax. Any tax or other government charge upon the production, sale, shipment or use of the
product which Seller is required to pay or collect from Customer shall be paid by Customer to
Seller unless Customer furnishes Seller with a tax exemption certificate acceptable to the
applicable taxing authority. Customer shall be responsible for obtaining any necessary
governmental clearances, including import and foreign exchange licenses, which may be required by any government other than the United States. Purchase prices are stated in United
States Dollars and payment shall be in United States Currency. Payments are due net 30 days,
provided, Seller reserves the right to modify or withdraw credit terms (if any) at any time
without notice and to require guarantees, security, or payment in advance of the amount of credit
involved. Seller will increase the price by 3% for all payments made through MasterCard, Visa,
or other credit card that Seller may accept. Work beyond the original scope of the Proposal,
including but not limited to code-required upgrades, discovery of obsolete equipment or
components, or concealed condition repairs, will be billed at Seller’s prevailing rates.
4. TIME OF PERFORMANCE. Any delivery or performance dates promised are
approximate only, and the time of delivery or performance shall not be of the essence. Seller may
provide reasonable notice of when the product(s) are available for delivery and/or installation.
Seller shall have the right to make delivery or complete performance of any order prior to any
delivery date. Customer shall immediately inspect Seller’s product upon delivery at Customer’s
location.
5. TITLE. Title to the goods shall not pass to Customer until Seller has received payment in
full (in cash or cleared funds) for the products, any other products or services that Seller has
supplied to Customer in respect of which payment has become due, and any other sums due
under the Contract.
6. CUSTOMER DUTIES. Customer shall provide access to the premises as needed for
performance of services, secure all required permits unless otherwise agreed in writing, maintain
all systems in good condition between maintenance visits, and immediately notify Seller
promptly of any issues. Customer shall promptly make repairs necessitated by accident, abuse, or
neglect, such as fire, theft, freezing, flooding, rust or normal corrosion, changes in voltage or
water pressure, damage done by employees or other persons, and to pay as an extra cost any
labor performed and material furnished by the Seller in making such repairs and corrections. The
Proposal assumes that all equipment is in reasonably good condition; if this assumption is
incorrect, and Seller deems that repairs are necessary upon the initial inspection, Customer will
pay such charge at Seller’s prevailing labor and materials rates. Seller agrees to keep equipment
rooms clear and accessible. Except as stated in the Proposal, Seller is not bound to make
corrections in design, or installation, of the Customer’s equipment. Customer shall be required to
pay for any equipment or labor recommended or required by insurance companies, the
government, state, municipal or other authorities.
7. EXCLUSION OF CERTAIN PARTS AND SERVICES. THE FOLLOWING IS NOT
INCLUDED DURING MAINTENANCE VISITS, unless explicitly set forth in the Proposal: (A)
Descaling of water-cooling towers and condensers; (B) Boiler water treatment, air balancing, and
air ducts; (C) High efficiency and/or bag filters, and (D) Replacement parts, equipment or labor.
8. EXPRESS WARRANTY. All services are provided as-is, except Seller warrants that
services will be performed in a workmanlike manner, which warranty shall be in place for one
(1) year from substantial completion (such covenant being referred to herein as the “Express
Warranty”). Every claim on account of the Express Warranty, or for any other cause, shall be
deemed waived by Customer unless made in writing to Seller within thirty (30) days of Customer having learned of the matter. Any warranties for parts and equipment are passed
through to Customer and are subject to the manufacturer’s terms and limitations. Seller does not
independently warrant parts or equipment. The Express Warranty does not cover ordinary wear
and tear, abuse, misuse, neglect, improper operation, or modifications by others. The Express
Warranty is in lieu of and excludes all other warranties, express or implied, and is given to
Customer exclusively, and to no others. The sole remedy for a breach of the Express Warranty
will be repair or replacement without charge, but Seller shall not be liable for deficiencies and/or
damage which are the result, among other things, of objects implemented by Customer, wear and
tear, faulty assembly/faulty implementation into service by Customer or by third parties, faulty
or negligent handling, damage during shipment, unsuitable or undue utilization, excessive
operational load, disregarding of utilization or instruction manuals, unsuitable operational
resources, modifications and/or repairs not approved by Seller effected by Customer or third
parties, excessive storage time, other circumstances outside of Seller’s direct control, and other
circumstances lying within Customer’s sphere of influence.. CUSTOMER HEREBY WAIVES
ANY AND ALL EXPRESS WARRANTIES NOT WRITTEN HEREIN AND ANY
IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND THE IMPLIED
WARRANTY OF MERCHANTABILITY, AND ANY REMEDIES NOT OTHERWISE
STATED HEREIN.
9. CUSTOM-MADE PRODUCTS. As used herein, a “custom-made product” shall mean a
product (including materials used therein) that for which Seller has procured for Customer that is
designed to specifications for a particular customer, or is not suitable for a broader market.
Whereas Seller may have no alternative use for a custom-made product, the parties agree that
Customer shall have no right to cancel an order for any custom-made product. Customer shall
owe the full purchase price for a custom-made product, even if such a product is not ultimately
shipped. If Customer cancels an order for a product that is not a custom-made product, then
Seller may attempt in its sole discretion to resell such product, and if such product is re-sold,
then Customer shall owe Seller the difference between the Customer’s agreed sale price and the
later sale price, plus costs of the re-sale transaction. If Seller shall have not sold such a product
within sixty (60) days of Customer’s cancelation, then Customer shall owe the full purchase
price, and Seller shall have no duty to account to Customer for the proceeds of a later sale,
irrespective of the perceived prospects for a later sale. Customer disclaims all rights to claim title
to a product for a canceled order, whether custom-made or otherwise.
10. REMEDIES FOR CUSTOMER BREACH. If Customer shall fail to timely pay all
sums due to Seller or shall otherwise breach the Contract, then Customer shall reimburse Seller
for all of its reasonable attorney’s fees and costs incurred in and leading up to such action to
enforce Seller’s rights, including appeals and defense of any counterclaims or other claims,
whether arising from tort, contract, or other theory of recovery. Any sums not paid by Customer
when due shall accrue interest at a rate of one and one-half percent (1.5%) per month. Customer
shall not withhold or set off any amounts due under this Contract for any reason, including any
disputed claims against Seller. Time is of the essence for Customer’s payment obligations. Seller
may suspend work if payments are not made on time and will not be liable for delays resulting
from such suspension. Customer shall pay a late fee equal to five percent (5.00%) of any amount
not timely paid within thirty (30) days of the date of the invoice. Seller expressly reserves all rights available under applicable mechanic's lien, construction lien, or materialman’s lien
statutes. In the event of nonpayment, Seller may file a lien against the property where services
are performed to secure payment for labor, materials, and equipment provided.
11. INDEMNITY. Customer hereby agrees that Seller and the Indemnitees shall not be
liable for, and agrees to indemnify, defend, and hold harmless Seller and the Indemnitees against,
all Damages. As used herein, “Indemnitees” shall mean Seller’s affiliates and subsidiaries and
their respective agents, directors, employees, officers, shareholders, subcontractors, attorneys,
successors and assigns. As used herein, “Damages” shall mean any and all liabilities, claims,
losses and damages of any nature, including, but not limited to, all expenses (including legal
fees), costs, and judgments for property damage or injury to or death of any person and any other
direct, indirect, incidental, consequential, economic or statutory civil damages, any of which
arise out of or are in any way related to the provision of the products or other services pursuant
to this Contract, from Customer’s negligence or misuse of the HVAC system, from pre-existing
conditions not caused by Seller, and from Customer’s failure to comply with applicable laws and
manufacturer requirements, whether or not arising from breach of contract, strict liability or tort
(including negligence, gross negligence, reckless and more culpable conduct), provided that
nothing in this paragraph shall require Customer to indemnify Seller or the Indemnitees for
claims or liabilities arising from the willful misconduct of Seller. Customer shall carry and
maintain such insurance in full force and effect and in types and amounts as would be carried by
prudent companies engaged in Customer’s industry. Such policies of insurance shall be primary
with respect to the indemnities of Customer set forth in the Contract, and shall contain waivers of
subrogation of the insurers in favor of Seller and the Indemnitees. Customer will provide Seller
with certificates of insurance as may be requested by Seller from time to time.
12. LIMITATION OF LIABILITY. Seller shall under no circumstances whatsoever be
liable to Customer, whether in contract, tort (including negligence), breach of statutory duty, or
otherwise, for any loss of profit, or any indirect, incidental, or consequential damages or loss
arising under or in connection with the Contract, which may include food spoilage, loss of
business, damage to decorations or machinery, or injury to persons. Seller’s total liability to
Customer arising under or in connection with the Contract, whether in contract, tort (including
negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount
paid by Customer for the specific services giving rise to the claim. This limitation of liability is
in addition to, and not a replacement of, the Express Warranty.
13. DELAY. Seller will not be liable in any way for late delivery, howsoever caused, or for
any delay in performance due to causes beyond Seller’s reasonable control including, without
limitation, embargoes, blockages, seizures or freeze of assets, epidemic or pandemic, delays or
refusals to grant export or import licenses or the suspension or revocation thereof, or any other
acts or omissions of government, fires, floods, severe weather, or any other acts of God,
quarantines, labor shortages, strikes, or lockouts, riots, insurrection, civil disobedience or acts of
criminals or terrorists, war, material or labor shortages or delays in delivery by third parties and,
in the event of such delay the date of delivery shall be extended for a period of time as may be
reasonably necessary to compensate for any such delay. The parties acknowledge that the
payment of money is not an action for which such force majeure events shall hinder
performance, and Customer shall not have a right to delay payment or suspend performance dueto such causes of force majeure. Customer shall be bound to accept the products and services
when available.
14. OFAC. Customer represents and warrants that neither Customer nor any of its officers,
directors, or beneficial owners is a person or entity that is: (i) designated on any list of sanctioned
parties maintained by OFAC, the U.S. Department of State, or any other relevant governmental
authority, including the Specially Designated Nationals and Blocked Persons List; or (ii) located,
organized, or resident in a country or territory that is the subject of comprehensive U.S. sanctions
(including, without limitation, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk, and
Luhansk regions of Ukraine). Customer agrees to comply with all applicable sanctions and
export control laws in the performance of this Agreement.
15. GOVERNING LAW AND JURISDICTION: This Contract shall be governed by the
laws of the State of Ohio, irrespective of the principles of the conflicts of laws. The United
Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to
this Contract. Any action or proceeding seeking to enforce any provision of, or based on any
right arising out of, the Contract shall be initiated only in state courts located in Summit County,
Ohio or the county in which Seller provided the services. The parties consent to such jurisdiction
and waive any argument that another forum would be more convenient. At either party’s option,
a dispute may be arbitrated before the American Arbitration Association (Commercial Rules),
for a one-day hearing held in Summit County, Ohio, before one (1) arbitrator. If a dispute is
initiated in arbitration, then all claims and counterclaims shall be adjudicated there; provided, if
Seller has recorded a mechanic’s lien, or if the time period for filing an affidavit of mechanic’s
lien has not yet expired, then Seller may elect for all claims and counterclaims to instead be
adjudicated in the county in which Seller provided the services.
Last revised: July 17, 2025