a. Entire Agreement; Supersession. These Terms and Conditions for Sale of Products and Services (these “Terms”) are the only terms that govern the provision of equipment, materials, goods and/or products (“Products”) and services (“Services”) by Rite Way Heating, Cooling and Plumbing, LP (“Seller”) to the buyer named on the accompanying invoice (“Buyer”). The accompanying invoice (the “Invoice”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Any additional or different terms or conditions proposed by Buyer, whether contained in any purchase order, acknowledgment, confirmation, or other document or communication, are hereby expressly objected to and rejected and shall be of no force or effect. Such additional or different terms shall be deemed material alterations to this Agreement.
b. Acceptance; Binding Effect. Buyer shall be deemed to have accepted and agreed to be bound by these Terms upon the earlier of: (i) Buyer’s acceptance of delivery of any Products; (ii) Buyer’s engagement of Seller to provide any Products or to perform or procure any Services; or (iii) Buyer’s submission of an order to Seller. These Terms shall govern notwithstanding any conflicting or additional terms proposed by Buyer, unless Seller and Buyer have entered into a separate written agreement, duly executed by both parties, that expressly governs the sale of the applicable Products or Services, in which case such separate written agreement shall control.
c. Amendments; Versions. Seller may modify these Terms from time to time without prior notice; provided, however, that the version of the Terms in effect as of the date Buyer signs the Invoice shall govern the transaction evidenced by such Invoice, unless otherwise expressly agreed in writing by Seller and Buyer.
Buyer shall provide and hereby grants Seller and its employees, agents, and subcontractors timely, safe, and reasonable access to the property at which the Products and Services are to be furnished (the “Site”), as necessary for the performance of the Services. Buyer acknowledges that unforeseen Site conditions or changes requested by Buyer may result in additional labor, materials, time, or costs. Any such additional work shall be documented in writing and shall not proceed without Buyer’s approval of the associated change order, except in the event of an emergency condition requiring immediate action to prevent property damage or personal injury.
If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall: (a) not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay; and (b) be entitled to recover from Buyer the reasonable value of all labor performed, materials furnished, and overhead incurred through the date of suspension or termination, together with any demobilization or remobilization costs; provided, however, that in no event shall such compensation be less than Seller’s actual costs incurred.
Buyer hereby represents and warrants to Seller that:
a. Buyer has full right, power, and authority to enter into this Agreement and to order the Products and Services described in the applicable Invoice, and such execution and performance do not violate any agreement or obligation binding on Buyer;
b. Buyer has reviewed and approves the scope of work, prices, specifications, assumptions, exclusions, and conditions set forth in the Invoice, and acknowledges that such terms are commercially reasonable and satisfactory in all respects;
c. Buyer shall timely remit all payments in accordance with the terms of this Agreement and the Invoice, without setoff, counterclaim, or deduction, except as expressly permitted herein;
d. Buyer is at least eighteen (18) years of age and has the legal capacity to enter into binding contractual obligations;
e. Buyer is the legal owner of the Site, or is an authorized agent or lawful tenant of the owner with full authority to authorize the work contemplated herein;
f. the Site is safe, accessible, and suitable for the performance of the Products and Services, including, without limitation, having adequate utilities, structural integrity, clear access to equipment locations, and compliance with applicable codes, and Buyer has disclosed to Seller all known conditions that could affect the work, including hazardous materials, concealed conditions, or prior defects;
g. all information provided by Buyer to Seller, including measurements, system specifications, usage requirements, and Site information, is accurate and complete, and Seller may rely upon such information without independent verification;
h. Buyer shall not interfere with or hinder Seller’s performance of the Products and Services, and acknowledges that delays or additional costs caused by Buyer, third parties, or Site conditions may result in change orders or additional charges;
i. Buyer has read and understands this Agreement in its entirety and agrees to be bound by all terms and conditions contained herein, including any limitations of liability, warranty exclusions, and dispute resolution provisions;
j. if Buyer furnishes, specifies, directs the use of, or requests that Seller install, connect to, service around, or integrate with any parts, equipment, devices, controls, accessories, materials, or components not sold by Seller, including without limitation any thermostat, smart thermostat, sensor, relay, control board, zoning component, low-voltage device, app-enabled device, or other control device (collectively, “Buyer-Supplied Parts”), Buyer does so at Buyer’s sole risk and acknowledges and agrees that Seller shall have no responsibility or liability for the condition, compatibility, performance, interoperability, programming, configuration, operation, malfunction, defect, failure, or consequences of use of any such Buyer-Supplied Parts, whether before, during, or after installation or attempted integration; and
k. Buyer has the full right to provide all Buyer-Supplied Parts for use in connection with the Services and that any specifications, instructions, or compatibility information provided by Buyer concerning such Buyer-Supplied Parts are accurate and complete.
Except as expressly set forth in the applicable Invoice, the Services do not include, and Seller shall have no obligation to perform, furnish, or be responsible for, any services, work, materials, or activities outside the expressly stated scope, including, without limitation, the following:
a. the repair, replacement, relocation, or disturbance of any public or private utilities, facilities, or underground installations that are not properly identified, located, or marked by the applicable utility locating service or governmental authority, including, without limitation, water lines, irrigation lines, and related appurtenances;
b. the importation, exportation, removal, or disposal of soil, fill, or spoils from the project site, unless expressly stated otherwise in writing by Seller;
c. the hauling, removal, or disposal of green waste, vegetation, or organic debris, unless expressly stated otherwise in writing by Seller;
d. any re-vegetation, re-landscaping, restoration, or aesthetic remediation of areas disturbed in connection with the Services, including, without limitation, the removal, replacement, or restoration of gravel, decorative rock, hardscape, plantings, or other landscaping materials;
e. painting, drywall repair, patchwork, cosmetic finishing, surface restoration, or similar work following installation, modification, or repair activities;
f. the detection, testing, containment, remediation, or removal of mold or hazardous materials, including without limitation, asbestos; and
g. compaction, stabilization, or restoration of soil, ground, or surfaces surrounding septic tanks, leach fields, or disposal treatment fields.
a. Damage to Site; Buyer Responsibility for Restoration. Seller shall not be responsible for any disturbance or damage to Site soil, lawn, yard, landscaping, hardscaping, driveways, walkways, or other surfaces, including without limitation vehicle tracks or equipment marks, arising out of or related to performance of the Services, unless expressly agreed to in writing by Seller. Buyer shall be solely responsible, at its cost and expense, for reconditioning, restoring, repairing, or replacing any such disturbed or damaged areas unless such restoration is expressly included in the scope of Services set forth in the applicable written agreement or invoice.
b. Concealed/Subsurface Conditions; Additional Costs. If, in the course of performing the Services, Seller encounters concealed or subsurface conditions, including, without limitation, rock, quicksand, underground water, or other unforeseen site conditions that differ materially from those ordinarily encountered, Buyer shall be responsible for all additional labor and materials reasonably required by Seller to address such conditions and to complete the Services. Such additional labor shall be billed at Seller’s then-current standard rates, and materials shall be billed at Seller’s cost plus applicable markup. Seller shall have the right to determine, in its reasonable discretion, the necessity and scope of any additional work required to properly perform its obligations hereunder, subject to Section 2, except where immediate action is reasonably required to prevent property damage, personal injury, or unsafe conditions, in which event Seller may proceed with such necessary work and issue a Change Order thereafter.
c. Roof Access; Roof Damage Disclaimer. To the extent performance of the Services requires access to or work on or around any roof surface, Buyer acknowledges and agrees that such access and work may involve walking on, placing equipment on, or otherwise interacting with roofing materials, including without limitation shingles, tiles, membranes, flashing, decking, or other components. Seller shall not be responsible or liable for any damage to the roof or roofing materials, including without limitation cracked, broken, displaced, or loosened roof tiles or shingles, or damage to underlayment or related components, arising out of or related to the reasonable and customary performance of the Services. Buyer acknowledges that certain roofing materials, including tile and aged or brittle roofing systems, are inherently fragile and may be susceptible to damage even when reasonable care is exercised. Buyer shall be solely responsible, at its cost and expense, for any inspection, repair, or replacement of roof materials unless expressly included in writing in the scope of Services.
a. Three-Day Cooling-Off Period. Buyer may cancel this Agreement, without penalty or obligation, within three (3) business days after the date of execution of the applicable Invoice (the “Cancellation Period”). If Buyer timely cancels by delivering or mailing to Seller a signed and dated written notice of cancellation, or any other written notice of cancellation, to Seller at its address set forth in the Invoice, then Seller shall, within ten (10) business days after receipt of such notice, return to Buyer any property traded in, refund all payments made by Buyer under this Agreement, and cancel and return any negotiable instrument executed by Buyer and terminate any security interest arising out of the transaction. Upon cancellation, Buyer shall make available to Seller at the Site, in substantially as good condition as when received, any Products delivered to Buyer under this Agreement, or, at Buyer’s option, comply with Seller’s instructions regarding return shipment of such Products at Seller’s expense and risk. If Buyer makes the Products available to Seller and Seller does not retrieve them within twenty (20) days after the date of Buyer’s notice of cancellation, Buyer may retain or dispose of the Products without further obligation.
b. Cancellation After Cooling-Off Period; Fees. Except as provided in Section 7(a) above, any cancellation by Buyer after expiration of the Cancellation Period shall result in forfeiture of any deposits previously paid. If Buyer cancels after Seller has commenced performance of the Services or has incurred costs in preparation thereof, Seller may, in addition to retaining any deposits and recovering payment for work performed and costs incurred through the effective date of cancellation, assess a cancellation fee equal to ten percent (10%) of the total contract price (or the maximum amount permitted by applicable law, if less). Rite Way may, in its discretion, apply a restocking fee of fifteen percent (15%) to any special-order or non-stock Products canceled after order placement, together with any non-refundable fees or charges imposed on Seller by suppliers or manufacturers, all of which shall be Buyer’s responsibility. Buyer and Seller acknowledge and agree that the cancellation fee, restocking fee, and forfeited deposits described herein constitute a reasonable estimate of the damages Seller would incur as a result of such cancellation, that actual damages would be difficult or impracticable to determine with certainty at the time of contracting, and that such amounts are intended as liquidated damages and not as a penalty.
a. Pricing; Invoice Controls. All pricing for Products and Services shall be as set forth in the applicable Invoice. Unless otherwise expressly stated in writing, all prices are net of and reflect any applicable discounts, promotions, coupons, or rebates, and include applicable sales tax, if required by law.
b. Deposits for Large Projects. For any Services with a total price exceeding One Thousand Dollars ($1,000.00), Seller may collect a non-refundable deposit equal to ten percent (10%) of the total estimated price prior to scheduling or commencement of the Services. Any such deposit shall be applied as a credit against the total amount due under the Invoice.
c. Financed Projects; Funding Submission. If the Services are financed through a third-party financing arrangement, Seller shall be entitled to submit for funding fifty percent (50%) of the total Invoice amount upon Buyer’s execution of the Invoice or work authorization and confirmation of financing approval.
d. Estimate Validity; Price Revision. Due to market volatility and periodic increases in manufacturer and supplier pricing for Products and materials, any estimate issued by Seller shall be valid for a period of thirty (30) days from the date of issuance, unless otherwise expressly stated in writing. If the Services are not scheduled and commenced within such thirty (30) day period, Seller reserves the right to revise pricing prior to commencement of the Services.
e. Return-Trip Fee. If Buyer requests that Seller return to the Site on a date other than as originally scheduled to perform Services, and such return visit is not attributable to Seller’s fault or omission, Seller may charge a return trip fee in the amount set forth in the Invoice or, if not specified therein, in the amount of One Hundred Twenty-Five Dollars ($125.00) per additional trip.
Except as otherwise expressly set forth in the applicable Invoice, payment in full for all Products, labor, materials, equipment, and Services furnished under this Agreement shall be due upon substantial completion of the Services.
Buyer authorizes Seller, in its discretion, to process payment by initiating debit entries, processing electronic funds transfers using check information, processing check transactions, or charging any credit or debit card provided by Buyer for amounts due under this Agreement. Buyer agrees to comply with the terms of any applicable account or cardholder agreement.
A service charge of Thirty-Five Dollar ($35.00) shall apply to any check or other payment returned, dishonored, or rejected for insufficient funds or for any reason not attributable to Seller.
Any amount not paid when due shall accrue interest until paid in full at a rate equal to the lesser of: (a) twenty-five percent (25%) per month; (b) the prime rate then in effect plus one percent (1%); or (c) the maximum rate permitted by applicable law. Buyer shall be deemed to have accepted the Services unless Buyer provides written notice of any alleged deficiency within thirty (30) days after substantial completion. Buyer shall be responsible for all costs incurred by Seller in collecting delinquent amounts, including reasonable attorneys’ fees and court costs.
a. Membership Fees; Billing Obligation. If Buyer enrolls in or purchases any membership or service plan offered by Seller (a “Membership”), Buyer shall pay all applicable Membership fees and charges in accordance with the terms of enrollment and the applicable Invoice. Buyer’s obligation to pay Membership fees shall continue unless and until Seller receives Buyer’s written notice of termination in accordance with this Agreement.
b. Minimum Term; Renewal. A minimum enrollment term of twelve (12) consecutive months shall apply from the date of initial enrollment (the “Initial Membership Term”). Buyer may not terminate the Membership during the Initial Membership Term except as expressly permitted in writing by Seller. Following expiration of the Initial Membership Term, the Membership shall continue on a month-to-month basis unless and until terminated by Buyer upon written notice to Seller.
c. Termination Processing; Limited Proration. Termination shall not be effective until processed by Seller, which processing period may take up to fourteen (14) days from Seller’s receipt of Buyer’s written notice. Buyer shall remain responsible for all Membership fees and charges accruing through the effective date of termination. Notwithstanding the foregoing, in the case of a Membership for which Buyer has paid fees on an annual basis in advance, Seller may, in its sole discretion, issue a prorated refund calculated based on the unused portion of the Membership term, taking into account the number of visits or services utilized by Buyer prior to termination. For the avoidance of doubt, no refund, credit, or proration of any kind shall be issued if the applicable Membership term has expired as of the date of Buyer’s request or notice of termination. Except as expressly set forth herein, no refunds or prorations shall be issued except as expressly required by applicable law or agreed to in writing by Seller.
Seller may, in its sole discretion and without the need for notice to or consent from Buyer, engage one or more subcontractors, suppliers, service providers, or other third parties to perform all or any portion of the Services. Seller shall remain responsible for the performance of the Services in accordance with this Agreement, provided that Seller shall have no obligation to disclose the identity of any such subcontractors or suppliers. Buyer acknowledges and agrees that Seller’s selection, engagement, supervision, replacement, or use of subcontractors and suppliers shall be exclusively within Seller’s control, and nothing herein shall be construed to create any contractual or other relationship between Buyer and any subcontractor or supplier of Seller.
Buyer shall, at its sole cost and expense, timely provide Seller with all information, documentation, approvals, and cooperation reasonably necessary in connection with the Services. Unless expressly stated otherwise in the applicable Invoice, Buyer shall be solely responsible for applying for, obtaining, and maintaining all permits, licenses, inspections, and governmental approvals required for the Services. Buyer represents and warrants that the Site, the existing improvements thereon, and the intended performance of the Services comply with all applicable zoning ordinances, land use restrictions, building codes, electrical codes, plumbing codes, and all other applicable federal, state, and local laws, rules, regulations, and ordinances. Seller does not assume any responsibility for violations of any such laws, codes, ordinances, or regulations that may presently exist at the Site or that are subsequently discovered. Seller shall have no obligation to investigate, identify, or verify compliance with zoning, land use, building, electrical, plumbing, or other governmental requirements, except to the extent expressly required by law in connection with the Services. Any labor, services, materials, modifications, upgrades, or corrective work required to remedy existing violations or to bring the Site or any existing systems into compliance with applicable laws or codes, to the extent not expressly included in the scope of Services, shall constitute additional work and shall be performed, if at all, only pursuant to a written change order and at Buyer’s sole cost and expense.
a. Requirement for Written Change Orders. No modification, alteration, or deviation from the scope of work set forth in the applicable Invoice shall be binding upon Seller unless authorized pursuant to a written change order executed by both Buyer and Seller (a “Change Order”). Any request by Buyer for additional work, changes in specifications, substitutions of materials, or other modifications to the Services shall be submitted in writing and shall describe the proposed change and the reason therefor. Seller shall evaluate the requested change and may, in its discretion, prepare a written Change Order setting forth the scope of the proposed change, any adjustment to the contract price, schedule, or other terms of this Agreement, and any investigation or administrative costs associated therewith. Seller may require Buyer’s written approval of such Change Order and payment in advance, in whole or in part, as a condition to commencing the additional or modified work.
b. No Obligation to Perform Extra Work Absent Change Order. Seller shall have no obligation to perform any extra work or implement any change unless and until a Change Order has been executed by both parties. Seller reserves the right to treat any extra work requested by Buyer as a separate agreement and to invoice such work independently of this Agreement. Upon execution of a Change Order, the Agreement shall be deemed amended accordingly.
If Seller is unable, despite commercially reasonable efforts, to obtain any Products specified in the applicable Invoice or in any duly executed Change Order due to unavailability, supply chain disruption, manufacturer discontinuation, or other causes beyond Seller’s reasonable control, Seller shall have the right, in its reasonable discretion, to substitute Products of comparable quality and functionality. Any such substitution shall not constitute a breach of this Agreement and shall not affect the price set forth on the applicable Invoice or Change Order, provided that the substitute materials are reasonably equivalent to those specified.
All Products delivered to the Site by Seller shall remain the property of Seller unless and until incorporated into the work and paid for in full by Buyer. Any surplus, excess, or unused Products remaining upon completion of the Services shall be deemed Seller’s property. Seller shall have the right to enter upon the Site at reasonable times, upon prior notice to Buyer, for the purpose of retrieving and removing any such excess or unused Products.
Risk of loss or damage to all Products furnished by Seller shall pass to Buyer upon delivery to the Site, regardless of whether such Products have been installed or incorporated into the work. Notwithstanding the foregoing, Buyer shall bear all risk of loss, damage, theft, defect, incompatibility, or failure with respect to any Buyer-Supplied Parts at all times, and Seller shall have no duty to insure or protect any such Buyer-Supplied Parts.
Seller shall supervise and direct the performance of the Services at the Site using commercially reasonable skill and care. Seller shall have sole control over, and responsibility for, the construction means, methods, techniques, sequences, procedures, and coordination of the Services performed pursuant to this Agreement, including the work of its employees and subcontractors. Buyer shall not interfere with, direct, or control Seller’s workforce or subcontractors in the performance of the Services.
a. Limited Labor Warranty.
i. Seller warrants solely to Buyer that labor performed by Seller under this Agreement shall be free from defects in workmanship for a period of thirty (30) days from the date of substantial completion, unless a different labor warranty period is expressly set forth in the applicable Invoice (the “Labor Warranty Period”). During the applicable Labor Warranty Period, Seller shall, at its sole option, repair or re-perform defective labor at no additional charge.
ii. Notwithstanding the foregoing, for any repair or replacement of a discrete component or part performed by Seller (including, without limitation, motors, compressors, capacitors, or similar components), Seller warrants that such repaired or replaced component and the labor associated with such repair or replacement shall be free from defects in workmanship and installation for a period of one (1) year from the date such repair or replacement is completed (the “Repair Warranty Period”). If such component fails due to defects in workmanship or installation within the Repair Warranty Period, Seller shall, at its sole option, repair or replace such component and perform the associated labor at no additional charge to Buyer. The Repair Warranty Period applies only to the specific component repaired or replaced by Seller and does not extend to other components or the system as a whole.
iii. Seller’s warranty for refrigerant leak repairs applies only to the specific leak location repaired and does not extend to subsequently occurring or newly formed leaks. Drain cleaning Services are provided without warranty. Except as expressly provided herein, no warranty is provided for Buyer-Supplied Parts or materials, owner-provided equipment, existing systems, or components, whether or not installed, wired, connected, configured, or otherwise handled by Seller. Any labor by Seller relating to Buyer-Supplied Parts is performed strictly as an accommodation to Buyer, “AS IS,” “WHERE IS,” and “WITH ALL FAULTS.”
b. Manufacturer Warranties; Assignment. All Products furnished by Seller are subject solely to the applicable manufacturer’s warranty, if any. Seller makes no warranty whatsoever with respect to such Products (other than a warranty of title) and shall have no obligation or liability for any defects in the Products. Seller shall provide Buyer with copies of, or access to, the manufacturer’s warranty documentation received by Seller for the Products. To the extent any manufacturer warranty is transferable or assignable, Seller shall use commercially reasonable efforts to assist in assigning or transferring such warranty to Buyer; provided, however, that any such assignment or transfer is subject to and conditioned upon the manufacturer’s then-current terms, procedures, and requirements (including any registration, maintenance, or proof-of-purchase requirements). Buyer shall look exclusively to the manufacturer for any defect in materials or equipment and shall be responsible for complying with all manufacturer maintenance, registration, and claim requirements. Any transfer fees, administrative charges, or other costs imposed by the manufacturer in connection with any assignment or transfer shall be paid by Buyer. For the avoidance of doubt, Seller shall have no obligation whatsoever to pursue, administer, facilitate, or honor any warranty claim relating to Buyer-Supplied Parts, and Buyer shall look exclusively to the manufacturer, vendor, distributor, installer of record, or other source from whom Buyer obtained such Buyer-Supplied Parts, if any, for all warranty rights and remedies.
c. Exclusions. The foregoing warranties do not apply to, and Seller shall not be liable for, any damage, defect, failure, or loss resulting from: (i) ordinary wear and tear; (ii) misuse, abuse, neglect, alteration, or improper operation; (iii) failure to follow manufacturer instructions or to perform recommended maintenance, including required annual inspections; (iv) service, repair, or modification by persons other than Seller without Seller’s prior written authorization; (v) lightning, fire, flood, windstorm, tornado, explosion, freezing, weather events, or other acts of God; (vi) structural deficiencies, pre-existing conditions, or failures of walls, foundations, ductwork, drain lines, condensate systems, float switches, drain pans, septic systems, or other components not installed by Seller; (vii) condensation, expansion, contraction, or environmental conditions; (viii) clogged drain lines, frozen evaporators, or water damage; (ix) operation outside design specifications or temperature ranges; (x) failure of Buyer to take reasonable steps to mitigate damage; (xi) the use of any Buyer-Supplied Parts, including any thermostat, control device, or other component supplied by Buyer or pre-existing at the Site and not furnished and installed by Seller; or (xii) any cause beyond Seller’s reasonable control. Buyer shall be solely responsible for any service calls, diagnostics, repairs, or replacements arising from or related to Buyer-supplied or existing thermostat or control device. Buyer shall be solely responsible for any service calls, diagnostics, repairs, replacements, reprogramming, rewiring, reconfiguration, or other corrective work arising from or related to Buyer-Supplied Parts.
d. Conditions to Warranty Coverage. Warranty coverage is conditioned upon (i) Buyer’s full and timely payment in full of all amounts due under this Agreement, and no warranty shall apply unless and until such amounts are paid in full; (ii) Buyer’s full and timely payment of all amounts due under this Agreement; (iii) Buyer providing written or telephonic notice of the alleged defect to Seller within the applicable warranty period; (iv) Seller being given a reasonable opportunity to inspect and, if applicable, repair the alleged defect before any third party performs work; and (v) Buyer’s compliance with all maintenance obligations. If Buyer has purchased an extended labor warranty exceeding two (2) years, continued coverage is conditioned upon Buyer maintaining an active annual service agreement with Seller for the duration of such extended period. This warranty shall be void upon any (A) unauthorized alterations or repairs, or (B) connection, installation, substitution, use, programming, modification, replacement, removal, tampering, or continued use of any Buyer-Supplied Parts, to the extent the claimed condition or damage was caused by, contributed to by, or could not reasonably be evaluated without regard to such Buyer-Supplied Parts. Warranty services shall be performed during Seller’s regular business hours.
e. Non-Transferability. All warranties provided herein are personal to the original Buyer and are not transferable to any subsequent owner of the property, unless expressly agreed in writing by Seller.
f. Exclusive Remedy. WITH RESPECT SOLELY TO ANY BREACH OF THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY ELSEWHERE IN THIS AGREEMENT, SELLER’S SOLE OBLIGATION AND BUYER’S EXCLUSIVE REMEDY FOR SUCH BREACH SHALL BE, AT SELLER’S OPTION, (I) REPAIR OR REPLACEMENT OF DEFECTIVE WORKMANSHIP, OR (II) REFUND OF THE AMOUNTS ACTUALLY PAID TO SELLER FOR THE SPECIFIC DEFECTIVE SERVICES GIVING RISE TO THE WARRANTY CLAIM.
g. Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY AND SPECIFICALLY SET FORTH IN THIS AGREEMENT, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PRODUCTS OR SERVICES PROVIDED HEREUNDER. SELLER EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, HABITABILITY, WORKMANLIKE CONSTRUCTION, DESIGN, CONDITION, QUALITY, DURABILITY, AND NON-INFRINGEMENT. NO STATEMENT, DESCRIPTION, SAMPLE, MODEL, OR REPRESENTATION, WHETHER ORAL OR WRITTEN, MADE BY SELLER OR ANY OF ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS SHALL CREATE ANY WARRANTY OR EXPAND THE SCOPE OR DURATION OF ANY EXPRESS WARRANTY SET FORTH HEREIN. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATIONS OR WARRANTIES NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE DISCLAIMED UNDER APPLICABLE LAW, SUCH IMPLIED WARRANTY SHALL BE LIMITED IN SCOPE TO THE EXPRESS LIMITED WARRANTY PROVIDED HEREIN AND SHALL BE LIMITED IN DURATION TO THE APPLICABLE LABOR WARRANTY PERIOD. WITHOUT LIMITING THE FOREGOING, SELLER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AS TO ANY BUYER-SUPPLIED PARTS, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COMPATIBILITY, INTEROPERABILITY, INTEGRATION, PROGRAMMABILITY, OR PERFORMANCE WITH RESPECT TO ANY BUYER-SUPPLIED THERMOSTAT OR OTHER CONTROL DEVICE.
h. Limitation of Actions; Acceptance. Any legal action arising out of or relating to the Services or this Agreement must be commenced within one (1) year from the date of substantial completion of the Services, to the fullest extent permitted by law. Buyer shall be deemed to have accepted all Products not rejected in writing within three (3) days of delivery and all Services not disputed in writing within thirty (30) days after substantial completion.
a. Design Standards; Manual J Basis. All heating, ventilation, and air conditioning Products furnished by Seller are selected and sized in accordance with generally accepted industry standards, including, where applicable, ACCA Manual J (or any successor standard) design criteria, using standard indoor and outdoor design conditions applicable to the geographic location of the Site. Seller does not warrant or guarantee system performance outside of such standard design conditions.
b. Limitations on Performance; Environmental Factors. Without limiting the foregoing, Seller shall have no responsibility or liability for: (i) heating or cooling performance beyond applicable Manual J standard design temperatures; (ii) elevated indoor humidity levels; (iii) system operation at or near dew point; or (iv) condensation, ductwork sweating, or moisture accumulation, in each case arising from or relating to building infiltration rates, structural conditions, ductwork configuration or condition, insulation values, vapor barriers, or any other building-specific or environmental factors.
c. Reliance on Buyer-Provided Information. All load calculations, system sizing, and Product selections are based upon information provided by Buyer during Seller’s initial consultation, including, without limitation, information regarding square footage, occupancy, insulation and R-values, structural tightness, ductwork condition, building materials, and infiltration or leakage characteristics. Seller shall be entitled to rely upon the accuracy and completeness of such information and shall have no responsibility or liability for any errors, deficiencies, or performance issues arising from inaccurate, incomplete, or misleading information provided by Buyer.
d. Buyer Refusal of Testing; Sizing Consequences. If Buyer elects not to authorize Seller, at Buyer’s expense, to perform independent testing, inspections, or evaluations necessary to determine or verify load calculations, insulation values, infiltration rates, or related design inputs, Seller may, in its discretion, size replacement HVAC Products based on the capacity and configuration of the existing system. In such event, Seller shall have no responsibility or liability for any issues arising from over-sizing or under-sizing of such Products, including, without limitation, short cycling, inadequate humidity control, condensation, mold or microbial growth, or the inability to maintain indoor conditions within applicable Manual J standard design temperatures.
a. No Warranty for Pre-Existing Equipment. Seller makes no representation or warranty, express or implied, regarding the condition, performance, functionality, capacity, or compatibility of any existing or pre-existing equipment, ductwork, duct board, controls, piping, plumbing fixtures, appurtenances, materials, or systems that are not expressly replaced or installed by Seller as part of the Services and that Buyer elects to retain, including without limitation, any Buyer-Supplied Parts, regardless of whether Seller installs, attempts to install, connects, programs, or otherwise handles the same.
b. Buyer Acknowledgement; Release for Pre-Existing Conditions. Buyer acknowledges and agrees that pre-existing equipment and materials, including aged, worn, corroded, deteriorated, concealed, or nonconforming components, may be fragile, obsolete, or no longer serviceable. Buyer further acknowledges that the reasonable and customary performance of the Services may result in damage to or destruction of such pre-existing items. To the fullest extent permitted by applicable law, Buyer releases Seller from, and agrees to hold Seller harmless against, any claims, losses, or damages arising out of or relating to (i) the condition, failure, or damage of any such retained or pre-existing equipment or materials, and (ii) any Buyer-Supplied Parts, including any claim arising from incompatibility, miscommunication between components, improper operation, failure to energize or stage equipment correctly, loss of functionality, or alleged damage to Seller-furnished equipment caused or allegedly caused by such Buyer-Supplied Parts.
c. No Warranty for Failures Caused by Retained Equipment. Any warranty or warranty service provided by Seller shall apply solely to the Products and Services furnished by Seller. Such warranty shall not apply to, and Seller shall have no responsibility for, any failure, malfunction, or performance issue caused in whole or in part by Buyer-Supplied Parts or any retained or pre-existing equipment, materials, or systems. If any such condition interferes with, delays, or prevents proper installation, start-up, or operation of the Products or the Services, Buyer shall be solely responsible for all resulting delays, additional labor, service calls, repairs, modifications, and related costs.
d. Incidental Damage from Reasonable Performance. Buyer further acknowledges that the Services may require interaction with existing or concealed components and the use of heavy equipment, power tools, hand tools, and standard construction or service practices. Seller shall not be responsible or liable for incidental or consequential damage to sidewalks, driveways, steps, walls, doors, finishes, landscaping, or other fixtures or surfaces resulting from the reasonable performance of the Services.
Seller shall have no responsibility or liability for inadequate heating or cooling performance, system failure, or other issues arising from the condition of any existing refrigerant line set retained by Buyer. Buyer acknowledges that existing line sets may require repair or replacement at an additional cost if Seller is unable to achieve a vacuum of less than five hundred (500) microns. If Buyer rejects Seller’s recommendation to repair or replace an existing line set, any warranty provided by Seller shall be void.
Seller makes no representation or warranty regarding the condition, integrity, or compliance of any existing gas piping that is concealed, inaccessible, or not readily observable. Buyer shall be responsible for all additional costs incurred in connection with pressure testing, leak detection, repair, or replacement of existing gas piping, whether required by applicable code, utility provider, or as a condition to completing or commissioning the Services.
Buyer is solely responsible for removing, protecting, and securing all personal property located in or near the project area. Seller shall not be responsible or liable for loss of or damage to Buyer’s personal property arising out of or relating to the performance of the Services.
Buyer acknowledges that existing attic access stairs, pull-down ladders, steps, framing, or related components may be unsafe, noncompliant, deteriorated, or otherwise unsuitable for the removal or installation of equipment. If Seller determines, in its reasonable discretion, that such attic access cannot be safely utilized, an alternative means of access or removal method may be required, at Buyer’s expense. Seller shall have no responsibility or liability for the repair, replacement, or restoration of any attic access stairs, steps, ladders, framing, ceilings, finishes, or related components that must be removed, modified, or disturbed to perform the Services. Buyer further agrees that Seller shall not be responsible or liable for property damage resulting from the reasonable removal, modification, or disturbance of such attic access components in connection with the Services.
Seller makes no representation or warranty regarding the presence, absence, identification, remediation, or effects of mold, mildew, fungi, spores, asbestos, lead, or other hazardous or regulated materials. Buyer acknowledges that Seller’s performance of the Services may expose or reveal mold or hazardous materials not previously known or visible. In such event, Seller reserves the right, but shall have no obligation, to suspend or terminate the Services until such conditions are properly remediated by Buyer at Buyer’s sole cost and expense. Seller shall not be responsible or liable for any claims, damages, losses, costs, or liabilities, whether direct or indirect, arising out of or relating to the presence, discovery, disturbance, or remediation of mold or hazardous materials.
Buyer shall, at its sole cost and expense, procure, maintain, and keep in full force and effect property insurance covering the entire Site and all Services performed, in an amount not less than the full insurable replacement value thereof. Such insurance shall include coverage for fire, theft, vandalism, malicious mischief, and other risks customarily covered under an extended coverage or “all risk” property policy. To the fullest extent permitted by applicable law, Buyer shall waive, and shall cause its insurer to waive, all rights of recovery, claims, or subrogation against Seller for loss or damage to the extent such loss or damage is covered, or required to be covered, by property insurance maintained pursuant to this Section, regardless of whether such loss or damage is caused in whole or in part by the negligence or fault of Seller. Upon Seller’s request, Buyer shall promptly furnish Seller with a certificate of insurance or other evidence reasonably acceptable to Seller demonstrating compliance with the insurance requirements set forth herein.
a. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE FOREGOING, SELLER SHALL HAVE NO LIABILITY WHATSOEVER, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY CLAIM, DAMAGE, LOSS, COST, OR EXPENSE ARISING OUT OF OR RELATING TO BUYER-SUPPLIED PARTS OR ANY INSTALLATION, CONNECTION, INTEGRATION, PROGRAMMING, ATTEMPTED PROGRAMMING, TROUBLESHOOTING, OR USE THEREOF.
b. Aggregate Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER UNDER THE APPLICABLE INVOICE FOR THE PRODUCTS AND SERVICES SOLD HEREUNDER. NOTWITHSTANDING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER SHALL HAVE ZERO LIABILITY ARISING OUT OF OR RELATING TO ANY BUYER-SUPPLIED PARTS.
Buyer shall indemnify, defend, and hold harmless Seller, its affiliates, and their respective directors, officers, employees, agents, sureties, subcontractors, suppliers, successors, and permitted assigns (collectively, the “Seller Indemnified Parties”) from and against any and all losses, costs, expenses, damages, injuries, claims, demands, obligations, liabilities, judgments, fines, penalties, interest and causes of action, including without limitation, administrative and legal costs and reasonable attorneys’ fees (collectively, “Losses”), arising out of or resulting from: (a) any Buyer-Supplied Parts, including any actual or alleged defect, incompatibility, malfunction, programming issue, communication failure, personal injury, property damage, or claim by any third party arising from or related to the same; (b) injury or death to any person, or damage to or destruction of any property (including loss of use thereof), resulting from the willful, fraudulent, or negligent acts or omissions of Buyer; (c) any failure of the Buyer to comply with the requirements of this Agreement; and (d) Buyer’s breach of applicable law. Notwithstanding the foregoing, Buyer shall have no obligation to indemnify any Seller Indemnified Party for Losses to the extent caused by the gross negligence, willful misconduct, or fraud of such Seller Indemnified Party.
In addition to any other remedies available to Seller under these Terms or at law or in equity, Seller may terminate this Agreement upon seven (7) days’ prior written notice to Buyer if: (a) Buyer fails to pay any amount due under this Agreement when due; (b) if Seller, acting in good faith, reasonably believes that Buyer’s ability or willingness to pay or perform its obligations hereunder has been materially impaired; or (c) Buyer otherwise fails to perform or comply with any provision of these Terms, in whole or in part. Upon such termination, Seller may immediately cease performance. Termination pursuant to this Section shall not waive or impair any mechanic’s lien or other statutory or contractual rights of Seller, nor shall it relieve Buyer of its obligation to pay Seller for all work performed and materials furnished through the effective date of termination.
a. Title Retention Until Payment. Buyer acknowledges and agrees that, to the fullest extent permitted by applicable law, title to any Products shall remain vested in Seller until Seller has received final and complete payment of all amounts due. In the event Buyer fails to remit payment in accordance with the terms set forth herein, Seller shall have the right, subject to applicable law, to enter the Site and remove any Products furnished and installed by Seller that have not been fully paid for. Buyer agrees to hold Seller harmless from and against any and all Losses arising solely from the removal of such Products, except to the extent caused by Seller’s gross negligence or willful misconduct.
b. Payment/Lien Rights Acknowledgement. Buyer acknowledges that, subject to applicable law, an owner of property may have the right to make payment directly to persons or entities furnishing labor or materials, to withhold amounts otherwise due under a contract, or to require lien waivers or releases as a condition of payment.
If Buyer affirmatively elects on the Invoice to receive telephone calls and/or text messages (“SMS”) from Seller, Buyer hereby provides express written consent to Seller contacting Buyer at the telephone number(s) that Buyer has provided, including via voice calls and SMS, for purposes that may include service notifications, account-related communications, appointment or service reminders, and promotional or marketing offers. Buyer acknowledges and agrees that such communications may be made using an automatic telephone dialing system and/or prerecorded or artificial voice. Buyer understands and agrees that Buyer’s election to receive such communications is voluntary and is not a condition of the purchase of any Products or Services. Buyer acknowledges and agrees that (a) mobile information collected for SMS services will not be shared with third parties or affiliates for their direct marketing purposes, (b) message frequency varies, (c) Buyer may text “HELP” for help, and (d) message and data rates may apply. Buyer may opt out of receiving text messages at any time by replying “STOP” to any SMS message, and may opt out of receiving promotional or marketing calls by contacting Seller using the contact information provided by Seller.
Seller shall not be liable or responsible to Buyer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond Seller’s control, including, without limitation, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the control of Seller.
Upon Seller’s reasonable request, Buyer shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure or delay by Seller to exercise any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof. No single or partial exercise by Seller of any right, remedy, power, or privilege shall preclude any other or further exercise by Seller of such right, remedy, power, or privilege, or the exercise of any other right, remedy, power, or privilege available to Seller. No course of dealing, course of performance, or usage of trade shall be deemed to modify this Agreement or to constitute a waiver of any right or remedy of Seller.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the state in which the Services are performed, without giving effect to any choice or conflict of law provision or rule.
Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted exclusively in the federal or state courts of the State in which the Services are performed, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts in any such suit, action, or proceeding.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the Invoice or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.
The parties expressly intend that all provisions of this Agreement be enforced to the maximum extent permitted by applicable law. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.
*Valid Until: 12/31/2023
