The Terms of Payment for this Agreement (Agreement) is full payment upon substantial completion otherwise known as Cash on Delivery (DOD). In the event any credit/debit card is used as payment: the issuer of the card is authorized to pay the amount shown as Total Charges upon proper presentation. Customer acknowledges the receipt of goods and /or services in the amount of the Total Charges and promises to pay such Total Charges subject to and in accordance with the agreement governing the use of such card.
Payments due and unpaid to Tower Heating & Air, LLC (TOWER) shall bear interest at the rate of 1.5% per month (18% per annum). TOWER shall be entitled to any and all costs associated with the collection of unpaid Agreement Total Charges which may arise from but not be limited to any unpaid balance, returned checks, invalid or disputed credit cards, and shall include but not limited to attorney fees, collection fees, court costs, and all TOWER expenses. Customer agrees that clerical or math errors may be present on this Agreement and amount due is subject to final audit and approval by TOWER office and Customer shall remit or TOWER shall refund any amount to correct such errors. Customer agrees that any labor or materials used for purposes that are not listed for any reason of this Agreement shall be billed separately and customer agrees to pay same.
As security for payment of the Agreement Total Charges, Customer grants a security interest in any and all equipment, component parts, or fixtures sold to Customer or installed at Site by TOWER under this Agreement and said security shall not limit any action or right to collection. In addition to the Agreement Total Charges, the Customer shall pay TOWER any taxes or government charges, as applicable, existing or imposed in the future, which is required in connection with the service or material furnished under this Agreement.
Any changes, deviations, and additions to this Agreement involving additional costs to TOWER shall be billable to the Customer on a time and materials basis unless otherwise prior agreed in writing. Additional costs and loss of time or productivity on the part of TOWER due to delays or any action within the control of the Customer shall be invoiced at TOWER’s then current service rates. If a conflict exists between this Agreement and any prior executed agreement or part thereof between TOWER and Customer, this Agreement shall supersede.
TOWER warrants that workmanship provided hereunder shall be free from defects for one (1) year from the date of substantial completion. Should any equipment, part, or component provided prove defective, TOWER will assign to the Customer any assignable limited warranties provided by the manufacturer. In no event shall TOWER’s liability under this Agreement exceed the Agreement Total Charges. TOWER, at its sole option, shall repair, replace, or issue credit for any defective item(s) covered under the above-limited warranty, provided such items were not damaged, abused, misused, tampered with, or affected by chemical properties, and this shall be Customer’s exclusive remedy for breach of limited warranty under this Agreement. To obtain performance of TOWER limited warranty, contact the TOWER Service Department at 5515 Linkside Court, Fuquay Varina, NC 27526 or call (919) 755-1975. No claim for defective workmanship may be brought or cause of action filed unless Customer has provided TOWER with written notice of the alleged defect within 30 days of the occurrence. CUSTOMER AGREES THAT THIS LIMITED WARRANTY EXCLUDED ANY REMEDY FOR DAMAGE OR DEFECT CAUSED BY ABUSE, MODIFICATIONS NOT PERFORMED BY TOWER, IMPROPER OR INSUFFICIENT MAINTENANCE, IMPROPER OPERATION, AND NORMAL WEAR AND TEAR UNDER NORMAL USAGE AND TOWER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. All warranties and guarantees listed are limited warranties and limited guarantees and are non-transferrable.
“Compressor Replacement Guarantee” is subject to manufacturer’s program. “Heat Exchanger Replacement Guarantee” is subject to manufacturer’s program. “Comfort Guarantee” is applicable when TOWER has sized and modified ductwork and branch runs as a line item on this Proposal. “Lifetime Thermostat Warranty” must have TOWER name and phone number on the thermostat.
To the fullest extent permitted by law, Customer shall indemnify and hold harmless TOWER, its agents, employees, and officers from and against any and all claims, damages, losses, or expenses, and judgments, including but not limited to attorney’s fees, resulting from the performance of TOWER’s Work, provided that such a claim is caused in whole or in part by an active or passive act of omission of Customer, anyone directly or indirectly employed by Customer, or anyone for whose acts Customer may be liable, regardless of whether it is caused in part by negligence of TOWER.
TOWER’s responsibility for injury to persons shall be limited to injury caused exclusively and directly by TOWER’s negligence in performing its obligations under this Agreement. TOWER shall not be liable for consequential, direct, indirect, special, or punitive damages, or damages for lost profits, lost opportunity, delay, loss of revenue, loss of use of equipment or facilities, loss of product, high or unusual utility cost, investment in substitute facilities, rental of substitute equipment, and the like. TOWER shall not be liable for conditions beyond TOWER’s reasonable control, or the inability to obtain materials or supplies. TOWER shall not be required to identify, detect, encapsulate, or remove asbestos or other hazardous substances, including but not limited to mold, bacteria, pollen, algae, dirt, or spores. TOWER shall in no way be responsible for or required to identify or remedy any condition, problem or issue arising from or related to indoor air quality (IAQ). TOWER in no way represents that any Work procedure TOWER performs will improve IAQ or insures compliance with any standards or guidelines. The Customer shall provide TOWER with all pertinent material safety data sheets pursuant to OSHA requirements and regulations. Compliance with any refrigerant regulations solely the responsibility of the Customer.
Customer agrees that it shall not hire as an employee or contract with as an independent contractor any of the employees of TOWER during the performance of this Agreement and for a period of twelve (12) months following the date of substantial completion of Work on this Agreement.
This Agreement covers the complete understanding between the parties and shall become a valid and binding contract when accepted by the Customer and subsequently approved by an agent of TOWER. No verbal representation, purchase order, or written notice from Customer shall be binding on either party. Any legal action by Customer relating to this Agreement, or the breach thereof, must be commenced not later than one (1) year from the date of substantial completion of the Work. In the event it becomes necessary to commence legal action to enforce this Agreement, the action shall be tried without a jury in the courts of Wake County, North Carolina. This Agreement shall be governed by the laws of the State of North Carolina.
If any phrase, clause, or provision of the Agreement is declared invalid or unenforceable by a court of competent jurisdiction, such phrase, clause, or provision shall be deemed severed from this Agreement, but will not affect any other provision of this Agreement, which shall otherwise remain in full force and effect to the maximum extent permissible by law.