Hobart Service Legal Terms and Conditions
These terms and conditions (“Terms”) and any Service Product Quotation, Equipment Installation Quotation, 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 incorporated by reference, any Hobart acknowledgment or invoice and all documents incorporated by specific reference herein or therein (“Hobart Documents” and together with these Terms and the relevant Service Contract, the “Agreement”), constitute the complete terms governing the sale of services (“Services”) and parts (“Parts”) by Hobart Service, a division of ITW Food Equipment Group LLC (“Hobart”) to customer purchasing from Hobart (“Customer”). Hobart may update these Terms at any time without notice. For the current version of these Terms, visit www.hobartservice.com/servicetermsandconditions. 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 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 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 or its employees. Customer's order of any Services or acceptance of delivery of any Parts manifests Customer's assent to the Agreement. Additional or different terms applicable to a particular sale may be specified in the body of a Hobart 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) terms agreed to in writing and executed by an authorized senior officer of Hobart in a Service Contract; (b) Hobart Document terms; (c) these Terms.
Quotations must be in writing and are only valid for 30 days from the date of the quotation for Service Product Quotations and Parts sales and 90 days from the date of quotation 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 may refuse orders and has no obligation to supply Parts or Services unless Hobart issues an order acknowledgement or upon the shipment of Parts or commencement of Services.
3. Pricing & Payment
Prices and rates are in U.S. dollars and are subject to change without notice, unless otherwise set forth in a Service Contract. Although Hobart strives to provide accurate information, pricing or typographical errors may occur. In the event that an item is listed at an incorrect price, Hobart has the right, at Hobart’s sole discretion, to refuse or cancel any orders placed for that item. All products and prices are subject to change by Hobart without notice and errors may be corrected at any time. Unless otherwise agreed to or noted in writing by Hobart, all payments are due in accordance with the payment requirements specified by Hobart at the time of purchase. Hobart may withhold Services and Parts for Customers that have 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.
4. Site Survey.
Hobart may conduct a Site (as defined below) survey at Customer’s facility. Such Site surveys are intended to identify problems which can be readily identified through reasonable visual inspection however Customer is solely responsible for the state of its facility and Site (including electrical and plumbing lines). During a Site survey, Hobart is under no obligation to excavate, move equipment, or otherwise disassemble or remove covers, fascia, sconces, or the like. Should problems or defects be identified during the Site survey or during performance of Services, Customer shall remedy such problems at its own cost before Hobart is required to continue performing or complete any Services.
Hobart will perform Services and provide Parts as mutually agreed by Hobart and Customer. For each Call (as defined below) Customer shall pay Hobart for all time, travel and mileage charges, and all other fees associated with such Call, at Hobart’s then current rates for performance of the Services at such Call (“Hobart Rates”). For Services that require use of specialized forms of transportation other than by conventional motor vehicles, Customer shall reimburse for all transportation, food, and lodging expenses incurred by Hobart. Permits required for performance of the Services are the responsibility of the Customer or the applicable third-party contractor. A call (“Call”) is defined as a Service on a single piece of equipment that includes labor, travel, return trip charges, parts and standard shipping costs associated with the Service. Hobart 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.
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. Each Call is subject to its own Agreement. Hobart may elect to terminate this Agreement for cause if Customer becomes past due on payment of any invoice. Hobart also reserves the right to notify Customer that Hobart will no longer sell Parts and/or perform Services until Customer has paid all past-due invoice(s).
During Service visits, Hobart may provide new or reconditioned Parts. Replaced parts and assemblies shall become the property of Hobart upon removal. For Parts installed by Hobart, title and risk of loss transfers to Customer upon installation. For Parts ordered by and shipped to Customer, title and risk of loss passes to Customer upon receipt by the carrier. Should Customer request expedited freight, Hobart will expedite the Parts at Customer’s cost. If the Parts are damaged in transit, Customer must file a claim with the carrier and Hobart shall not be liable for such damage. Concealed damage and shorted shipments must be reported to Hobart’s Parts Department within 10 days of delivery.
8. Shipping & Taxes.
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. All damaged, shorted or missing parts must be reported to the freight carrier. Concealed damage and shorted shipments must be reported within 10 days of order delivery. Notify customer service at 877-333-1863 or via e-mail at CustomerCare@HobartParts.com. In damage claims where an inspection is required, the damaged shipment along with all original packaging must be made available to the freight company at the original point of delivery to qualify for claim reimbursement.
9. Orders & Returns.
Hobart only accepts American Express, Discover, MasterCard and Visa credit cards associated with a billing address within the United States for online orders. Hobart will not accept online orders for shipments to locations outside of the United States. Hobart reserves the right, at its sole discretion, to limit the quantity of items purchased per Customer and/or per order. Hobart will provide notification to the Customer should such limits be applied. Hobart also reserves the right, in its sole discretion, to refuse an order from any Customer. Hobart will provide a full refund to its direct customer for Parts that are returned new and unused within 90 days of the invoice date on, provided that Customer is responsible for all associated shipping costs, provided further that a $10 restocking fee may apply based on the size of the order or if the package has been opened. Notwithstanding the foregoing or anything else to the contrary, the following Parts are ineligible for return in all circumstances: (A) non-cancellable/non-returnable Parts or non-stock Parts, and all Customer orders, (B) hazardous materials and items having a shelf life, (C) electronic boards or components that have been opened, (D) commercial standard items (i.e.: Nuts, bolts, screws), and (E) Parts not in the original packaging. If ineligible Parts are returned, credit will not be issued and Parts will be scrapped, at no liability to Hobart. Return requests must include the item and invoice number and reason for return unless otherwise approved by Hobart. Failure to comply with this section will result in any credit being withheld or reduced accordingly in Hobart’s discretion.
Hobart 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 or its employees, (ii) Hobart’s failure to comply with applicable laws, or (iii) any claim of infringement or misappropriation of any third-party intellectual property right directly based on the Services performed by Hobart provided, however, Hobart shall have no duties under this paragraph where the Services or Parts have been modified by any party other than Hobart. Hobart does not indemnify Customer for any damages (or legal expenses) to the extent caused by Customer’s (or its agent’s or employees’) fault. The above obligations are contingent upon (i) Customer supplying Hobart written notice of such claim immediately after the Customer has notice of such claim, (ii) Customer diligently cooperating with Hobart in the defense and settlement of such claim; and (iii) Customer allowing Hobart the full right to defend and settle such claim.
Hobart 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 will provide evidence of insurance upon request of Customer. Hobart may self-insure any coverage.
- For Services and Parts (other than in connection with Equipment Installation), Hobart warrants to Customer that (a) it will perform the Services in a timely, competent and professional manner and in accordance with industry standards and (b) the Services shall conform to the Service Contract for a period of 24 hours from completion (the “Services Warranty Period”). Hobart further warrants to Customer that any Parts (i) shall be free of any liens, (ii) shall, for a period of 90 days from original installation if installed by Hobart or from invoice date if not installed by Hobart (the “Parts Warranty Period” and together with the Services Warranty Period, the “Warranty Period”), be free of material defects in workmanship and material.
- For Equipment Installation, Hobart warrants to Customer that (a) it will perform the Services in a timely, competent and professional manner and in accordance with industry standards and (b) the Services shall conform to the Service Contract for a period of 24 hours from completion of the Services or, if Hobart performs the final equipment connections, 30 days from completion of the Services (the “Warranty Period”). Delays in equipment startup shall not extend this warranty.
- For new equipment (excluding Parts): New equipment purchases are subject to separate terms and conditions.
- The above warranties (the “Warranty”) apply directly to Customer and may not be assigned. Customer’s exclusive remedy, and Hobart’s sole obligation, for a breach of the Warranty is for Hobart, 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’s obligations herein are contingent upon (i) Customer making any claim under this Warranty during the Warranty Period, (ii) such claim includes detailed explanation of any alleged deficiencies, (iii) Hobart is given a reasonable opportunity to investigate all claims; and (iv) Hobart’s examination of the Parts or Services confirms the alleged deficiencies and that the deficiencies were not caused by accident, misuse, neglect, improper installation, unauthorized alteration or repair or improper testing by Customer or a third party. EXCEPT AS SET FORTH ABOVE, HOBART MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE).
Unless otherwise specified in a Service Contract, the following is not included in the scope of coverage and will be subject to additional charges: any repair costs, including labor, parts and travel expense required due to damage by fire, water, burglary, accident, abuse, acts of God, acts of terrorism, failure of Customer to operate or maintain equipment in conformity with Hobart’s or other manufacturer’s recommended operating and maintenance instructions, inappropriate or improper use, improper water conditions, failure due to improper cleaning, failure to maintain water treatment equipment, and relocation, adjustment or repair of Hobart equipment by any Customer or any third party without Hobart’s supervision or consent. Hobart shall have no obligation to provide Service or Parts under this Agreement for any equipment that is damaged due to any of the above causes until such equipment is repaired by Hobart or an authorized third party. Any such repairs shall be 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 Hobart 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 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) (such date, the “End of Life”). Hobart is not responsible for any losses, claims, damages or expenses related to Customer’s continue use of any equipment, parts and/or components after its End of Life.
14. Customer Responsibilities.
For any on-site Service, Customer shall:
- prepare the Site for the Services. If the Site is not prepared for the Services upon Hobart service personnel’s arrival at the agreed upon time and date, Hobart may charge Customer for any delay and/or travel time at Hobart Rates. If, in Hobart’s opinion, performance of Services would pose a risk to the safety of any person, Hobart may refuse, without any liability, to provide Services and to allow Hobart service personnel to suspend Services or vacate any Site. In such event, Customer is responsible for payment of any delay and/or travel time at Hobart Rates;
- provide Hobart with at least 30 days’ written notice of any rules, regulations, statutes and requirements applicable to the Services, including any required permits and licenses, that are applicable to Customer’s local jurisdiction;
- provide at least one business day notice of cancellation of any Service order. If Customer cancels with less than 24 hours’ notice, Customer is responsible for any costs incurred by Hobart caused by such cancellation. If Hobart travels to Customer’s location and Customer cancels thereafter, Customer may incur an additional cancellation charge; and
- remain liable for all damages or injuries caused or contributed to the negligent acts or willful misconduct of Customer, its employees, agents, and representatives that may occur on the site and indemnify Hobart 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 HEREUNDER EXCEED THE PURCHASE PRICE OF THE SPECIFIC PARTS OR SERVICES AS TO WHICH THE CLAIM IS MADE.
16. Hobart Personnel.
Customer will not solicit, offer work to, employ, or contract with, directly or indirectly, any of Hobart’s employees that interacted with Customer or any of its affiliates, agents or employees while Hobart provides Services and/or Parts hereunder and for a period of twelve (12) months after the conclusion of such Services. A Hobart employee’s response to a general advertisement or solicitation not specifically targeting or intending to target employees of Hobart, its subsidiaries or any of affiliates shall not be deemed a violation of this Section.
(a) Additional terms from the local Branch Office may also apply to the Agreement, 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, pandemics, 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’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 Ohio and litigated exclusively in the state or federal courts of the state of Ohio. The parties hereto expressly release and waive any and all rights to a jury trial. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement. (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.