THE ELECTRIC WAY, INC.
Terms & Conditions, Warranty, Disclaimer, and Limitation of Liability
Subject to the terms and conditions set forth herein (“Terms & Conditions”), The Electric Way Company, Inc. (“Company”) agrees to perform electrical services and related work (“Work”) as identified and/or described in the sales quote, Invoice, and change order(s), if any (“Work Documentation”) issued by Company to the customer that is identified in any such Work Documentation (“Customer”). These Terms & Conditions shall become binding upon Company and Customer. These Terms & Conditions are expressly limited as set forth herein unless expressly modified with reference hereto in writing and signed by Company. These Terms & Conditions and the Work Documentation into which the Terms & Conditions have been incorporated contain the entire agreement of the parties (“Agreement”) and all proposals, negotiations, representations, promises, modifications, or agreements made or entered prior to or contemporaneously herewith, whether oral or in writing, are expressly superseded by this Agreement. Customer and Company agree that no prior course of dealing, course of performance, or usage of trade shall be offered, used, or admissible to explain, modify, or contradict this Agreement in any way. Notwithstanding anything to the contrary in the Agreement, Company reserves the right to delay or refuse service in the event of any unsafe condition, as determined in the sole discretion of Company.
PAYMENT. Except as otherwise provided herein, upon completion of Work, Company shall issue an invoice detailing all charges arising from the Work (“Invoice”). The term “completion of Work” shall mean any juncture of the job at which point Company cannot move forward with the project due to the need for an inspection other than the final inspection, waiting on Customer or other contractors, waiting on materials, etc. Customer agrees to pay each Invoice within seven (7) calendar days of delivery. The term “delivery” shall mean two (2) business days after mailing, if mailed by regular United States Postal Service, or immediately upon email delivery to Customer or at the location of any Work or other location set forth for delivery in the Work Documentation. On the eighth (8th) day following delivery and every day thereafter, a daily late charge of $15 will be added to all delinquent accounts.
COLLECTION COSTS. If Customer’s account becomes more than 30 days past due, Customer shall be responsible for all costs of collection, including all attorney’s fees, and agrees that Company shall have the right to injunctive relief in addition to any other rights and remedies, including but not limited to a lien against Customer’s real property and lien costs, plus all additional court costs incurred by Company as a result of each collection effort.
DOWN PAYMENT. For Work estimated or requiring a permit, Customer will pay Company 50% of the estimated cost of the Work (“Down Payment”) before Company schedules the Work. Two hundred U.S. Dollars ($200) of the Down Payment will be non-refundable. If Customer cancels the Work after the Work is scheduled but before the Work commences, Company will refund the Down Payment, minus $200.
ESTIMATE. An estimate, quote, or sales order will reflect the cost of the Work. Unless otherwise stated in writing, this is a fixed price for the Work which will be reflected on the final invoice. If the scope of the work dramatically changes from the original estimate or service items are added/removed during the appointment, adjustments may be made to the final invoice to reflect these changes.
WEEKNIGHT, WEEKEND, AND HOLIDAY RATES. Unless otherwise agreed to by Company, all Work and warranty work (outlined below) will be performed during normal business hours. Any Customer requiring Work or warranty work other than during regular business hours will be charged a “weekend rate” of labor. “Regular business hours” means 8:00 AM-5:00 PM prevailing Mountain Time, Monday through Friday, except national holidays.
OTHER CONTRACTORS. Unless otherwise stated by Company on the face of the Invoice, third party labor, materials, plumbing, electrical, steam, gas or other utility services, or connections to or from the equipment described or any special attachments or accessories thereto, or any lines, pipes, or other fittings required to effect a hookup or connection or any structural change to the building or removal of doors, windows partitions, or other items and services required for access or for installation of equipment are not considered Work and are not included in the cost of Work. Customer understands it is Customer’s responsibility to coordinate with third parties for any necessary third party work, materials, or services.
PERMITS & INSPECTIONS. Customer will determine whether to secure permits for the Work or any portion of the Work. If Customer chooses to secure permits for any portion of the Work, Customer shall pay Company 50% of the estimated cost of the Work before Company schedules the Work. For permitted Work, Customer will pay the remaining balance, in accordance with the payment terms set forth above, after the Work is complete and an inspection has deemed the Work appropriate. Additionally, if Customer chooses to secure permits for any portion of the Work, Customer understands that Company may be delayed in completing the Work if the applicable permitting authorities do not timely approve certain aspects of the Work. Although Company may assist in the coordination of permits and inspections, it is Customer’s responsibility to schedule any necessary inspection. If Customer does not schedule the necessary inspection within 10 days of Company notifying Customer of the completion of the permitted Work, the full balance will become due immediately and Customer will remain subject to the payment and collection terms set forth above.
AUTHORIZATION. The party who executes the Agreement specifically represents that he/she has the authority to do so.
LIMITED WARRANTY AND DISCLAIMERS. Company warrants that Work will be performed in a workmanlike manner and will be free from defects in workmanship for a period of five (5) years, and free from defects in materials for a period of two (2) years, each from the date of Company’s final Invoice to Customer. Company’s sole liability and Customer’s exclusive remedy for any defect shall be limited, at Company’s option, to repair, replacement, or a refund of amounts paid by Customer for all or a portion of the Work. Customer must provide written notice of the alleged defect(s) upon discovery of such defect and before the expiration of the warranty period described herein. Defective items disclosed on the Invoice and any parts or items supplied by the Customer may be excluded from warranty, at Company’s option. This warranty is contingent upon proper use of the affected areas in the application for which it was intended and does not apply to any Work subjected to unusual physical or electrical stress or impediments, neglect, improper testing or storage, third party workmanship, or unauthorized repair. If the Work or any aspect of the Work is repaired, replaced, or altered by anyone other than Company, the warranty is void. The warranty for parts repaired or replaced by Company is limited to the scope and duration of the original warranty set forth herein. This warranty is for Customer’s benefit only, and is non-transferable.
EXCEPT FOR THE LIMITED WARRANTY PROVIDED HEREIN, COMPANY MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED WITH RESPECT TO THE WORK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF EVERY KIND PERTAINING IN ANY WAY TO THE WORK WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ADEQUACY OR SUITABILITY, HOWEVER ARISING, WHETHER BY STATUTE, COMMON LAW, USAGE OF TRADE, COURSE OF DEALING, CUSTOM OR OTHERWISE.
LIMITATION OF LIABILITY AND INDEMNIFICATION. Customer expressly agrees to indemnify and hold Company harmless from and against any and all claims, damages, costs, fees, liability, loss, injury, or death arising from or in any way related to the Work, unless such claims, damages, costs, fees, liability, loss, injury, or death is the direct result of Company’s gross negligence.
CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY AND ALL ACTIONS (whether sounding in law or equity), CLAIMS (including without limitation claims for negligence, bodily injury, death, or property damage) OR DAMAGES (including without limitation economic, non-economic, general, special), SHALL BE AS SET FORTH HEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND FROM WHATEVER CAUSE, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING OUT OF, OR IN ANY WAY RESULTING FROM: (A) WATER OR FIRE DAMAGE; (B) THESE TERMS & CONDITIONS; OR (C) THE WORK. NOTWITHSTANDING ANY OTHER PROVISIONS SET FORTH HEREIN, THE TOTAL LIABILITY OF COMPANY, AND ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND/OR ANY OF THEM, TO CUSTOMER AND/OR ANYONE CLAIMING BY, THROUGH, OR UNDER CUSTOMER, FOR ANY AND ALL ACTIONS, CLAIMS, OR DAMAGE SHALL NOT EXCEED THE COMPENSATION RECEIVED BY COMPANY FOR THE WORK. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Customer acknowledges that Company has set its prices and agreed to these Terms & Conditions in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified herein will survive and apply if Customer’s sole and exclusive remedy is found to have its essential purpose.
CUSTOMER WORK. If Customer alters, adjusts, repairs, or in any way affects or contributes to the Work (“Customer Work”), either while the Work is being performed or after the Work is completed, the warranty set forth above is void, and Customer assumes all risk, liability, and/or loss associated with, arising from, or in any way related to the Work. Further, Customer expressly agrees to indemnify and hold Company harmless from and against any and all claims, damages, costs, fees, liability, loss, injury, or death arising from or in any way related to the Work.
GOVERNING LAW. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Colorado.
ARBITRATION, VENUE, & JURISDICTION. Any controversy, claim, or dispute of any kind arising out of or relating to this Agreement or the Work, shall be settled by confidential arbitration administered by the American Arbitration Association. The place of arbitration shall be Colorado Springs, Colorado and Colorado law shall apply, irrespective of any conflict of laws. Notwithstanding the obligation to arbitrate, should there be any court action, the parties agree to bring any such action in El Paso County, Colorado and the parties shall submit to the exclusive jurisdiction of such courts and waive any and all jurisdictional, venue, and inconvenient forum objections.
DEFAULT. The following circumstances constitute a Default: 1) Customer fails to satisfy his or her payment obligations, 2) Customer files for bankruptcy (or the state-law equivalent), 3) Customer is in receivership, or is under threat of receivership or bankruptcy (or the state law equivalent), or 4) Company reasonably deems itself insecure with respect to Customer’s performance under this Agreement. In the event of Default, Company may exercise one or more of the following options: 1) cancel the Agreement and be relieved of all remaining obligations thereunder, 2) take possession of any parts or goods purchased by the Company and associated with the Work, and/or 3) demand immediate payment and take all necessary steps to collect full payment. Company’s waiver of one Default shall not be deemed a waiver of any subsequent default.
