TERMS AND CONDITIONS OF SALE

These Terms and Conditions of Sale (“Terms”) shall govern all proposals, quotations, orders and contracts for the sale of goods and services of Climate Systems, LLC (“Climate Systems”) to the person or entity (the “Customer”) engaging Climate Systems to provide the attached goods or services.  These Terms supersede any prior written or oral agreement, understanding, representation or promise, and any pre-printed or standard terms and conditions contained in Customer’s request for proposal/quote, purchase order, invoice, order acknowledgement, contract or other similar document.  These Terms may not be amended, supplemented, changed or modified except by concurrent or subsequent written agreement, signed by both parties. To the extent any terms contained herein are different from or inconsistent with the terms of a purchase order, the terms in these Terms shall control unless the conflicting term in the purchase order references the specific section and statement of these Terms that is superseded by such purchase order.

1.  PRICES & TAXES: Customer shall pay, in addition to the quoted price, all taxes required to be paid by Customer (even if Climate Systems is required to collect or withhold any such taxes) or, alternatively, shall provide Climate Systems with acceptable tax exemption certificates. Climate Systems shall provide Customer with any tax payment certificate upon request and after completion of the work. Stenographic, clerical and mathematical errors are subject to correction.  Prices are exclusive of expenses related to special packaging or procedures to cover unique circumstances of shipment or storage unless specifically noted. Until acceptance of order on these Terms, quoted prices are subject to change.

2. DELIVERY & PERFORMANCE: Dates for the furnishing of services and/or delivery or shipment of goods are approximate only and are subject to change. Climate Systems shall not be liable in damages or otherwise, nor shall Customer be relieved of its performance hereunder, because of a delay in delivery and/or installation.  Additionally, Climate Systems shall not be liable, directly or indirectly, for any delay in or failure to perform caused by carriers or suppliers; labor difficulties, shortages, strikes or stoppages of any sort; difficulty in obtaining materials; customer requested order changes; fires, floods, storms, accidents, or acts of God; any statute, sanction, injunction or other governmental restraint or prohibition; or other causes beyond Climate Systems’ reasonable control. In the event of any such delay, the date of delivery/performance shall be extended for a reasonable length of time to complete the work while trying to perform the work in a manner that does not materially interfere with Climate Systems’ scheduled work for other parties. If any products or goods become permanently unavailable, Climate Systems shall be excused from providing the same, and the work order shall be adjusted upwards, if necessary, for any replacement parts or materials which are reasonable substitutes for the unavailable items. All work for which Climate Systems does not receive written notice of rejection for within seven (7) days after receipt, will be deemed accepted. Any such notice of rejection must be in writing and set forth in reasonably specific detail the basis for the rejection. If Customer fails to perform any of its obligations under this agreement, Climate Systems shall be entitled to suspend its performance under the agreement until such time as Customer performs such obligations, and any dates for the delivery of goods or performance of services shall be extended for an amount time determined in Climate Systems’ discretion. Title and risk of loss in all goods sold hereunder shall pass to Customer when goods are made available for pickup at Climate Systems’ facility, except that Customer grants Climate Systems a lien on and a purchase money security interest in and to all of the right, title, and interest of Customer in the goods purchased hereunder until full payment has been made, and Climate Systems shall have the right to file any financing statement or other document to reflect the same.

3.  SCOPE OF WORK: Any Climate Systems proposal is based upon the use of straight time labor only. Plastering, patching and painting are excluded. “In-Line” duct and piping devices, including, but not limited to, valves, dampers, humidifiers, wells, taps, flow meters, orifices, etc., if required hereunder to be furnished by Climate Systems shall be distributed and installed by others under Climate Systems’ supervision but at no additional cost to Climate Systems. Customer agrees to provide Climate Systems with required field utilities (electricity, toilets, drinking water, project hoist, elevator service, etc.) without charge. Climate Systems agrees to clean the job site of debris at reasonable intervals and times for debris arising out of its own operations. Customer shall not back charge Climate Systems for any costs or expenses without Climate Systems’ written consent.

4.  PAYMENT: Climate Systems may invoice Customer in advance for all materials delivered to the job site or to an off-site storage facility and for all work performed on-site and off-site. For any amounts owed to Climate Systems not paid in advance or upon work completion, payment shall be net thirty (30) days.  Waivers of lien will be furnished upon request, as the work progresses, to the extent payments are received. Climate Systems retains all remedies for Customer’s insolvency including, but not limited to, the right to stop work and/or delivery, reclaim any goods delivered, or withhold delivery except for cash. Failure to pay invoices at maturity date, at Climate Systems’ election, makes all subsequent invoices immediately due and payable and Climate Systems may stop work and/or withhold all subsequent deliveries until the full account is settled and Climate Systems shall not, in such event, be liable for non-performance of contract in whole or in part. Customer agrees to pay, without formal notice, one and one-half percent (1.5%) per month of the amount not paid when due, or, if such rate is in excess of applicable governing law, Customer agrees to pay the maximum permitted rate.  No deduction, whether by way of set-off, counterclaim or otherwise, shall be allowed.  If prerequisites for any payment (such as delivery, completion or formal acceptance) cannot be satisfied due to Customer’s breach, such payment shall nevertheless become due and payable at the time agreed to and Climate Systems’ further right to seek damages shall remain unaffected.

5. CANCELLATIONS & CHANGES: In the event of Customer’s cancellation, Customer shall be liable for a cancellation charge equal to the greater of (i) twenty-five percent (25%) of the quoted price and (ii) any loss or cost incurred by Climate Systems, including, but not limited to, cost of materials, labor, engineering, reconditioning and a reasonable profit margin. Customer is responsible for all reasonable storage, insurance, and all other expenses incurred by Climate Systems as a result of Customer’s cancellations and/or changes. No changes to the purchase order shall be allowed unless agreed to by both parties in writing.

6. LIMITED WARRANTY: Unless otherwise mutually agreed to in writing, (a) Climate Systems warrants that the equipment manufactured by it shall be free from defects in material and workmanship arising from normal usage for a period of one (1) year from delivery of said equipment, or if not manufactured but installed by Climate Systems, Climate Systems services are warranted to Customer to have been performed in a workmanlike manner for a period of ninety (90) days from the date of performance. If the work does not conform to the warranty stated above, if Customer provides written notice to Climate Systems of any such defect within thirty (30) days after the appearance or discovery of such defect then as Customer’s sole remedy, Climate Systems shall, at Climate Systems’ option, either repair or replace the defective goods or re-perform defective services. Third party goods furnished and/or installed by Climate Systems will be repaired or replaced as Customer’s sole remedy, but only to the extent provided in and honored by the original manufacturer’s warranty. Unless otherwise agreed to in writing, Climate Systems shall not be liable for breach of warranty or otherwise in any manner whatsoever for: (i) any goods or services which, following delivery or performance by Climate Systems, has been subjected to accident, abuse, misapplication, improper repair, alteration, improper installation or maintenance, neglect, or excessive operating conditions; (ii) defects resulting from Customer’s specifications or designs or those of Customer’s contractors or subcontractors other than Climate Systems; (iii) damage resulting from the combination, operation or use with equipment, products, hardware, software, firmware, systems or data not provided by Climate Systems, if such damage or harm would have been avoided in the absence of such combination, operation or use; or, (iv) Customer’s use of the work in any manner inconsistent with Climate Systems’ written materials regarding the use of such work. In addition, the foregoing warranty shall not include any labor, dismantling, re-installation, transportation or access costs, or other expense associated with the repair or replacement of the work.  THE WARRANTIES CONTAINED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES AVAILABLE TO CUSTOMER AND CLIMATE SYSTEMS HEREBY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

7. COMPLIANCE WITH LAWS: Climate Systems shall comply with all applicable federal, state and local laws and regulations and shall obtain all temporary licenses and permits required for the prosecution of the work. Licenses and permits of a permanent nature shall be procured and paid for by the Customer.

8. LIMITATION OF LIABILITY: NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN: (A) IN NO EVENT SHALL CLIMATE SYSTEMS BE LIABLE FOR ANY EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, WHETHER FORESEEABLE OR NOT, INCLUDING WITHOUT LIMITATION, THIRD PARTY CHARGES AND COSTS, LOST PROFITS, PRODUCT, PRODUCTION, BUSINESS OR BUSINESS OPPORTUNITY, REGARDLESS OF THE CAUSE, INCLUDING WITHOUT LIMITATION, THE NEGLIGENT ACTS OR OMISSIONS, BREACH OF CONTRACT, WARRANTY (EXPRESS OR IMPLIED) OR DUTY (STATUTORY OR OTHERWISE) OR STRICT LIABILITY OF CLIMATE SYSTEMS OR ANY OTHER THEORY OF LEGAL LIABILITY; AND (B) CLIMATE SYSTEMS’ AGGREGATE LIABILITY ARISING FROM OR IN CONNECTION WITH ALL ORDERS AND CONTRACTS FOR GOODS AND SERVICES UNDER THESE TERMS SHALL NOT EXCEED THE CONTRACT PRICE FOR THE GOODS AND/OR SERVICES FOR WHICH LIABILITY IS CLAIMED.

9.  HAZARDOUS MATERIALS: Unless specifically noted in the scope of work or services undertaken by Climate Systems under this agreement, Climate Systems’ obligations under this agreement expressly exclude any work or service of any nature associated or connected with the identification, abatement, clean up, control, removal, or disposal of environment hazards or dangerous substances, to include but not be limited to asbestos or PCBs, discovered in or on the premises. Any language or provision of the agreement elsewhere contained which may authorize or empower the Customer to change, modify, or alter the scope of work or services to be performed by Climate Systems shall not operate to compel Climate Systems to perform any work relating to the aforementioned hazards without Climate Systems’ express written consent.

10. APPLICABLE LAW; VENUE; ARBITRATION: The rights and duties of the parties hereunder shall be governed by the laws of the State where the project is located, excluding its conflicts law and choice of laws principles.  Any action or proceeding with respect to this agreement shall be resolved by binding arbitration through the American Arbitration Association (“AAA”) conducted by arbitrator(s) selected in accordance with the Construction Industry Arbitration Rules currently in effect as of the date of filing a demand for arbitration (“Arbitrator”).  This agreement is made pursuant to a transaction in interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C.A § 1, without regard to conflict with local applicable laws.  The arbitration will be conducted in Charlotte, North Carolina at an office to be determined by the Arbitrator.  The prevailing party (as determined by the Arbitrator) shall be entitled to recover the cost and expense of the arbitration, including reimbursement of all reasonable attorneys’ fees, expert witness fees, costs of appeal and costs to enforce the arbitration provision contained herein. Nothing herein shall limit any rights under construction lien laws.

11.  INDEMNITY: Customer agrees to indemnify and hold Climate Systems harmless from and against any and all losses, liabilities, claims, fees (including reasonable attorney fees), expenses, and other costs incurred by Climate Systems as a result of any hazard (whether latent or otherwise) existing on the property.

12. NO OTHER CONTRACT PROVISIONS; OTHER: There are no representations, agreements, obligations, or conditions, expressed or implied, statutory or otherwise, relating to the subject matter hereof, other than contained herein. These Terms constitute a completely integrated agreement and cannot be modified unless modifications are accompanied by signed writing approved by Climate Systems. For the avoidance of doubt and not in limitation of the foregoing, Climate Systems shall not be bound by the terms of any contract between Customer and any third party or other flow down provisions, regardless of whether Customer notifies Climate Systems of such terms unless Climate Systems expressly agrees to be bound by such terms in writing. If any provision hereof is invalid or not enforceable under applicable law, the remaining provisions shall remain in full force and effect. Climate Systems reserves the right to transfer or assign its obligations, rights and responsibilities hereunder, so long as such successor or assign agrees to these Terms. Any assignment of Customer’s rights hereunder without Climate Systems’ consent (which shall not be unreasonably withheld) shall be void. Climate Systems’ failure to require Customer’s performance of any of these Terms shall not serve as a waiver of or diminish Climate Systems’ rights to require strict performance of these Terms.

13.  EO CONTRACT CLAUSE: CLIMATE SYSTEMS and Customer agree to abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.