Terms and Conditions
Acceptance: A proposal made upon these terms is subject to acceptance within thirty days from date and the prices are subject to change without notice prior to acceptance by Customer. If your order is an acceptance of a written proposal, on a form provided by S&S HVAC, without the addition of any other terms and conditions of sale or any other modification, this document shall be treated solely as an acknowledgment of such order, subject to credit approval. If your order is not such an acceptance, then this document is S&S HVAC offer, subject to credit approval, to provide the goods and/or Work solely in accordance with the following terms and conditions of sale
Exclusions From Work: S&S HVAC obligation is limited to the Work as defined and does not include any modifications to the Premises under the Americans With Disabilities Act or any other law or building code(s).
Construction Procedures: S&S HVAC shall supervise and direct the Work using its best skill and attention and have exclusive control over construction means, methods, techniques, sequences and procedures.
Payment Terms: Customer shall pay S&S HVAC invoices within net thirty (30) days of invoice date. S&S HVAC may invoice Customer for all equipment or material furnished, whether delivered to the installation site or to an off-site storage facility and for all work performed on-site or off-site. No retention shall be withheld from any payments except as expressly agreed in writing by S&S HVAC, in which case retention shall be reduced per the contract documents and released no later than the date of substantial completion. If payment is not received as required hereby, S&S HVAC may suspend performance and the time for completion shall be extended for a reasonable period of time not less than the period of suspension. Customer shall be liable to S&S HVAC for all reasonable shutdown, standby and start-up costs as a result of the suspension. All amounts outstanding 10 days beyond the due date are subject to a service charge not to exceed 1.5% of the principal amount due or the maximum allowable legal interest rate, retroactive to the due date. Customer shall pay all costs (including attorneys’ fees) incurred by S&S HVAC in attempting to collect amounts due and otherwise enforcing these terms and conditions.
Time For Completion: Except to the extent otherwise expressly agreed in writing signed by an authorized representative of S&S HVAC, all dates provided by S&S HVAC or its representatives for commencement, progress or completion are estimates only. While S&S HVAC shall use commercially reasonable efforts to meet such estimated dates, S&S HVAC shall not be responsible for any damages for its failure to do so.
Access: S&S HVAC and its contractors or subcontractors shall be provided access to the Premises during regular business hours, or such other hours as may be requested by S&S HVAC and acceptable to the Premises’ owner or tenant for the performance of the Work, including sufficient areas for staging, mobilization, and storage. S&S HVAC access to correct any emergency condition shall not be restricted.
Permits And Governmental Fees: S&S HVAC shall secure (with Customer’s assistance) and pay for building and other permits and governmental fees, licenses, and inspections necessary for proper performance and completion of the Work, which are legally required when bids from S&S HVAC subcontractors are received, negotiations thereon concluded, or the effective date of a relevant Change Order, whichever is later. Customer is responsible for necessary approvals, easements, assessments and charges for construction, use or occupancy of permanent structures or for permanent changes to existing facilities.
Utilities During Construction: S&S HVAC shall be provided without charge all water, heat, and utilities during performance of the Work.
Concealed Or Unknown Conditions: In the performance of the Work, if S&S HVAC encounters conditions at the Premises that are (i) subsurface or otherwise concealed physical conditions that differ materially from those indicated on drawings expressly incorporated herein or (ii) unknown physical conditions of an unusual nature that differ materially from those conditions ordinarily found to exist and generally recognized as inherent in construction activities of the type and character as the Work, S&S HVAC shall notify Customer of such conditions promptly, prior to significantly disturbing the same. If such conditions differ materially and cause an increase in S&S HVAC cost of, or time required for, performance of any part of the Work, S&S HVAC shall be entitled to, and Customer shall consent by Change Order to, an equitable adjustment in the Contract Price, contract time, or both. Any loss contributed to, or aggravated by rust, mold, fungus, wet or dry rot and any resulting is always excluded under this contract however caused.
Asbestos And Hazardous Materials: S&S HVAC Work and other services in connection with this Agreement expressly excludes any identification, abatement, cleanup, control, disposal, removal or other work connected with asbestos, polychlorinated biphenyl (“PCB”), or other hazardous materials (hereinafter, collectively, “Hazardous Materials”). Customer warrants and represents that, except as set forth in a writing signed by S&S HVAC, there are no Hazardous Materials on the Premises that will in any way affect S&S HVAC Work and Customer has disclosed to S&S HVAC the existence and location of any Hazardous Materials in all areas within which S&S HVAC will be performing the Work. Should S&S HVAC become aware of or suspect the presence of Hazardous Materials, S&S HVAC may immediately stop work in the affected area and shall notify Customer. Customer will be responsible for taking any and all action necessary to correct the condition in accordance with all applicable laws and regulations. Customer shall be exclusively responsible for any claims, including the payment thereof, arising out of or relating to any Hazardous Materials on or about the premises, not brought onto the premises by S&S HVAC. S&S HVAC shall be required to resume performance of the Work in the affected area only in the absence of Hazardous Materials or when the affected area has been rendered harmless. In no event shall S&S HVAC be obligated to transport or handle Hazardous Material, to provide any notices to any governmental agency, or to examine the Premises for the presence of Hazardous Materials.
Conditions Beyond Control Of Parties: If S&S HVAC shall be unable to carry out any material obligation under this Agreement due to events beyond its control, such as acts of God, governmental or judicial authority, insurrections, riots, labor disputes, labor or material shortages, fires, or explosions, this Agreement shall at S&S HVAC election (i) remain in effect but S&S HVAC obligations shall be suspended until the uncontrollable event terminates; or (ii) be terminated upon ten (10) days notice to Customer, in which event Customer shall pay S&S HVAC for all parts of the Work furnished to the date of termination. Any loss consisting of, caused by, contributed to, or aggravated by rust, mold, fungus, wet or dry rot, and any resulting loss in always excluded under this contract, however caused.
Customer’s Breach. Each of the following events or conditions shall constitute a breach by Customer and shall give S&S HVAC the right, without an election of remedies, to terminate this Agreement by delivery of written notice declaring termination, upon which event Customer shall be liable to S&S HVAC for all Work furnished to date and all damages sustained by S&S HVAC (including lost profit and overhead): (1) Any failure by Customer to pay amounts due more than thirty (30) days after the date of the invoice therefore; or (2) Any failure by Customer to perform or comply with any material provision of this Agreement.
Indemnification. S&S HVAC and Customer shall indemnify, defend and hold each other harmless from any and all claims, actions, costs, expenses, damages and liabilities, including reasonable attorneys’ fees, resulting from death or bodily injury or damage to real or personal property, to the extent caused by the negligence or misconduct of their respective employees or other authorized agents in connection with their activities within the scope of this Agreement. However, neither party shall indemnify the other against claims, damages, expenses or liabilities to the extent attributable to the negligence or misconduct of the other party. If the parties are both at fault, the obligation to indemnify shall be proportional to their relative fault. The duty to indemnify will continue in full force and effect, notwithstanding the expiration or early termination hereof, with respect to any claims based on facts or conditions that occurred prior to expiration or termination. Notwithstanding any contrary provision, neither party shall be liable to the other for any special, incidental, consequential or punitive damages.
Workmanship And Equipment Warranty. S&S HVAC warrants that, for a period of one year from the date of substantial completion (the “Warranty Period”), SPX Marley equipment installed hereunder and Work (i) shall be free from defects in material, manufacture, and workmanship and (ii) shall have the capacities and ratings set forth in SPX Marley’s catalogs and bulletins; substantial completion shall be the earlier of the date that the Work is sufficiently complete so that Customer can utilize the Work for its intended use or the date that Customer receives beneficial use of the Work. For Marley equipment not installed by S&S HVAC, the Warranty Period is the lesser of 12 months from initial start-up or 18 months from the date of shipment. If such defect is discovered within the Warranty Period, S&S HVAC will correct the defect or furnish replacement equipment (or, at its option, parts therefore) and, if said equipment was installed pursuant hereto, labor associated with the replacement of parts or equipment not conforming to this warranty. No liability whatever shall attach to S&S HVAC until said equipment and Work have been paid for in full and then said liability shall be limited to S&S HVAC cost to correct the defective Work and/or the purchase price of the equipment shown to be defective. S&S HVAC warranties expressly exclude any remedy for damage or defect caused by corrosion, erosion, or deterioration, abuse, modifications or repairs not performed by S&S, improper operation, or normal wear and tear under normal usage. .
THE WARRANTY AND LIABILITY SET FORTH IN THE PRECEDING PARAGRAPH ARE IN LIEU OF ALL OTHER WARRANTIES AND LIABILITIES, WHETHER IN CONTRACT OR IN NEGLIGENCE, EXPRESS OR IMPLIED, IN LAW OR IN FACT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL S&S HVAC BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES.
Assignment. Customer may not assign, transfer, or convey this Agreement, or any part hereof, or its right, title or interest herein, without the written consent of S&S HVAC. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of Customer’s successors and assigns.
Complete Agreement. This Agreement shall constitute the entire Agreement between both parties and this Agreement may not be amended, modified or terminated except by a writing signed by the parties hereto. No documents shall be incorporated herein by reference except to the extent S&S HVAC is a signatory thereon.
Governing Laws. This shall be construed as an agreement in accordance with the laws of the State of Texas. Texas licenses TACLA30251E . Regulated by The Texas Department of Licensing and Registration, P.O. Box 12157, Austin, TX 78711, 1-800-803-9202.
