Purchaser agrees to buy from Washington Energy Services Company, a Washington business corporation (the “Company”), who in turn agrees to sell to Purchaser, the merchandise and/or services described on the reverse side, and to pay the amount due. Prices quoted are for immediate delivery; orders for future delivery are accepted subject to any increase in prices in effect at time of actual delivery. Merchandise ordered under this contract is subject to availability at the time of actual delivery. Purchaser consents to substitution of merchandise of similar quality and performance characteristics by Company and assignment of services by Company but in no event at any additional cost to Purchaser. Until the total balance due under this Contract is fully paid in cash, Purchaser further agrees and covenants as follows: (1) to insure against fire, and properly maintain said merchandise and be liable for its loss or damage by theft, fire or otherwise; (2) not to resell, assign, or remove the merchandise from the place where originally installed without prior written consent from the Company; (3) not to use or treat the same or any part or attachment for any purpose other than for the purpose it was originally intended and/or authorized; and (4) not to create nor permit the existence of any lien or security interest on the merchandise without the prior written consent of the Company.
2. PROMISE TO PAY; SECURITY INTEREST
Purchaser promises to pay to Company’s order all amounts owed hereunder including the “Amount Owing” shown on the reverse side on demand unless another payment schedule is shown on the reverse side. The Purchaser grants Company a security interest in the goods or property purchased as well as on the real property improved (the “Collateral”) as security for repayment of all amounts due under this Agreement. The unpaid balance of the any amount financed and any other amounts owing under this Contract will bear interest at twelve percent (12%) per annum (unless a greater annual percentage rate is set forth on the reverse side) until paid. If Purchaser fails to make any payment required by this Contract or otherwise defaults on its obligations under this Contract, Company shall be entitled to realize on the Collateral pursuant to this Contract and the Uniform Commercial Code, in addition to all other rights and remedies available to Company under applicable law. By signing this Contract, the Purchaser specifically authorizes the Company to file the initial financing statement and any amendments covering the Collateral in order to perfect the Company’s security interest in the Collateral. In addition, by signing this Contract the Purchaser agrees to execute any financing statement in a prompt and diligent manner if requested by the Company as part of the perfection of its security interest in the Collateral.
3. COLLECTION COSTS AND ATTORNEY FEES
A late charge equivalent to one and one-half percent of any unpaid balance due will be assessed if payment is not received within 15 days of billing date. A$15 charge shall be paid by Purchaser on any check returned by the bank from which it is drawn. If Purchaser shall default in the performance of any of the terms hereof, or in the payment when due of any sum required to be paid, or if Purchaser becomes insolvent or insolvency proceedings are commenced by or against Purchaser or if Purchaser’s financial condition is otherwise impaired in the reasonable discretion of the Company, Company may declare all sums then remaining unpaid immediately due and payable whereupon such sum shall be due and payable in full immediately. This Contract may be referred to an attorney for collection of all sums remaining unpaid. In addition to the fees set forth above, Purchaser agrees to pay all reasonable cost of collection, including attorneys’ fees, court costs, disbursements, repossession fees, and other lawful charges incurred in the collection of your indebtedness; provided, however, that each party shall pay its own attorneys’ fees in any other dispute of any nature relating to this Contract and the transaction contemplated hereby. In no event shall the Company be liable for reimbursement or payment of any professional fees (including but not limited to attorneys’ fees) of Purchaser. Ten days’ notice by first class mail to Purchaser’s last address on record with Company, or if more than one, to any Purchaser, of the intended sale of any collateral or of any action hereunder is reasonable. No modification, waiver, discharge of any other party, or any other event other than payment in full in cash of all obligations under this Contract will release Purchaser from liability. All payments will be applied in the following order: accrued interest, principal, late charges and other amounts owing under this Contract.
Purchaser further warrants that the Purchaser’s electric service wires and electric service equipment are in suitable condition and of sufficient capacity to permit the addition of any electric load occasioned by use of the merchandise purchased hereunder in conformity with all ordinances and that when an electric outlet or supply is required, it will be provided by Purchaser. Purchaser further agrees that if the merchandise requires exhaust or intake venting, Purchaser will provide and maintain an approved gas flue, intake vent, a chimney chase adequate for installing flexible liner, or a chimney at Purchaser’s cost. All repair and/or alteration work, including finishing work outside the scope of HVAC industry such as but not limited to, carpentry, flooring, drywall, painting or masonry, on Purchaser’s premises is to be paid for by Purchaser unless otherwise specified on the reverse side. In the event that the Purchaser wishes to have any equipment removed, the Company will not be held liable for repairs of any alterations to the property that were necessary to originally install the equipment. Purchaser agrees to provide the Company access to areas necessary to install, inspect, and repair equipment during normal business hours and without obligation for compensation due to lost time or inconvenience. Purchaser agrees to pay the Company for any additional work not stated in terms of contract required to alter existing ductwork, vent, water piping, fuel piping, or chimney in order to install equipment to meet current codes and maintain proper operation.
The Company will not be responsible for problems due to existing heating/cooling airflow inadequacies, including existing hot water deficiencies or water piping or temperature deviance from room to room or between floor levels. Not by way of limitation, the following constitute existing air flow inadequacies for cooling: (1) duct system originally designed for heating, (2) balancing between rooms or floor levels excluded, or (3) any temperature differences between upper and lower levels. The Washington State noise ordinance requires property line noise levels below 45dB between 10:00pm and 8:00am, and Purchaser is responsible for all costs incurred to comply with this and any other applicable noise ordinance. The Company has listed two acoustical engineers who can offer professional services relating to this requirement if needed and can design sound deflection walls and create proper acoustical placement around the outdoor condenser units. J.R. Engineering, John Alberti: 425-827-0324, Associates Inc., Michael R. Yantis, P.E. 425-454-4283.
6. COMPANY’S RIGHT TO CANCEL
Company may cancel this Contract any time prior to installation by notifying Purchaser accordingly. If done, Company will refund any sums paid by Purchaser and neither party shall thereafter have any further obligation under this Contract.
7. MAIN EXTENSION/SERVICE LINE
If applicable, this Contract is subject to main extension/service line approval and installation from the natural gas utility servicing the premises. If approval and installation is obtained or forthcoming, this Contract shall be null and void upon notice to Customer by Company, and all sums paid shall be refunded and neither party shall have any further obligation hereunder. Should this Contract be canceled for reasons other than gas availability, Purchaser will be responsible for fees associated with the gas main/services including permits and fees.
8. COMPANY ACCEPTANCE
This Contract shall not be deemed accepted by, or binding on, Company until it is both approved by one of its authorized agents or an executive officer, and the proposed installation has been approved by the Company and its independent installer. However, in the case of goods which will become fixtures in leasehold property, this Contract shall not be binding on, nor deemed accepted by, Company until, in addition to the foregoing, a signed consent and disclaimer form, as provided by Company, is obtained from all persons with an interest in the real property.
Purchaser or Purchaser’s agent agrees to determine prior to installation if there is any asbestos in the area where work will be performed, and to so advise the Company if asbestos is found. Purchaser shall be exclusively responsible for and bear the entire cost of all costs and damages resulting from any such asbestos, as wells as the costs of any necessary asbestos removal, unless explicitly stated otherwise on the reverse side of this Contract. Customer further agrees to provide any reasonably required post-asbestos removal test demonstrating that airborne asbestos is at a safe level.
It is agreed that failure of either party to this Contract at any time or from time to time to enforce any of the provisions of this Contract shall not be construed to be a waiver of such provision or of such party’s right to thereafter enforce each and every provision hereof. This Contract contains the entire understanding of the parties, shall supersede any other oral or written agreements and shall be binding upon and inure to the benefit of the parties’ successors and assigns. It may not be modified in any way without the written consent of both parties. If any provision of this Contract is determined by a court to be unenforceable, then such provision will be deemed null and void but the remaining provisions shall be enforceable according to their terms. All parties executing this Contract are jointly and severally liable for all obligations of Purchaser set forth herein. The Company is registered with the State of Washington, registration no. # WASHIES851NS, as a general contractor and has posted with the state a bond or cash deposit of $6,000 for the purpose of satisfying claims against the Company for negligent or improper work or breach of contract in the conduct of the Company’s business. The expiration of this contractor’s registration is September of each year. This bond or cash deposit may not be sufficient to cover a claim that might arise from the work done under this Contract. If any supplier of materials used in your construction project or any employee of the Company or subcontractor is not paid by the Company or subcontractor on your job, your property may be liened to force payment. If you wish additional protection you may request the Company to provide you with original “lien release” documents from each supplier or subcontractor on your project. The Company is required to provide you with further information about lien release documents if you request it. General information is also available from the department of labor and industries.
11. DELIVERY OF MANUFACTURER’S WARRANTIES
The Company agrees to deliver to the original Purchaser upon the Company’s original installation of the products sold hereunder any and all warranties relating to such products, which are offered directly by the manufacturer of such products.
12. WARRANTIES FROM THE COMPANY
A. Limited One-year Warranty. Company warrants to the original Purchaser that products sold by the Company hereunder will carry a limited one-year warranty for parts and labor in the event of any defects in such products that existed at the time of the Company’s original installation for a period of one year from the date of such installation. ANY IMPLIED WARRANTIES, SUCH AS WARRANTIES FOR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO THE ONE-YEAR TERM OF THIS WARRANTY. If at any time during the warranty period (1 year from the date of original installation) the warranties set forth in this paragraph are breached, Company shall, as the exclusive remedy and at its option, either (1) repair or replace said merchandise, or (2) remove said merchandise and refund all monies paid by Purchaser for said merchandise. If you wish to make a claim under this warranty, you must do so by sending proof of the date of purchase together with a brief description of the problem, postage prepaid, to Customer Services, Washington Energy Services Company, 3909 196th St SW Lynnwood, WA 98036. This warranty gives you specific legal rights and you may also have other rights which vary from state to state. THIS LIMITED ONE-YEAR WARRANTY IS DIRECTLY FROM THE COMPANY REGARDING THE PRODUCTS SOLD HEREUNDER AND THE COMPANY.
B. Other Warranties. THE ORIGINAL PURCHASER OF THE PRODUCTS SOLD HEREUNDER MAY PURCHASE FROM THE COMPANY EXTENDED WARRANTIES. IN ADDITION, DEPENDING UPON THE SPECIFIC PRODUCT THAT IS PURCHASED FROM THE COMPANY THERE MAY BE ADDITIONAL EXPRESSED WARRANTIES FROM THE COMPANY. IF YOU HAVE ANY QUESTION ABOUT WHETHER THERE ARE ADDITIONAL WARRANTIES, YOU SHOULD CONTACT THE COMPANY’S CUSTOMER SERVICE AT THE ADDRESS IN PARAGRAPH 12A, ABOVE.
13. FORCE MAJEURE
COMPANY SHALL NOT BE LIABLE FOR PROBLEMS CAUSED FROM EXTERNAL SOURCES OR BEYOND OUR CONTROL SUCH AS: ACTS OF GOD OR NATURE INCLUDING BUT NOT LIMITED TO EARTHQUAKES, POWER OUTAGES, SURGES OR BROWNOUT, AND NATURAL GAS OR PROPANE PROBLEMS EXTERNAL OF EQUIPMENT, SUCH AS LOW-PRESSURE, EXISTING OR UNFORESEEN electrical/MECHANICAL DISCREPANCIES SUCH AS, BUT NOT LIMITED TO, DEFECTIVE LINE OR LOW VOLTAGE WIRING, RESTRICTED CHIMNEY OR FLUE, THERMOSTAT, GAS PIPING, REFRIGERATION LINES OR EQUIPMENT, ELECTRONIC AIR CLEANER, DUCT LEAKAGE OR COMPONENTS OR AN EXISTING HVAC SYSTEM. THE COMPANY WILL HAVE NO FURTHER WARRANTY OBLIGATION UNDER THIS CONTRACT IF SAID MERCHANDISE IS SUBJECTED TO ABUSE, MISUSE, NEGLIGENCE, OR ACCIDENT.
14. LIMITATION OF LIABILITY, DAMAGES AND REMEDIES
IT IS UNDERSTOOD AND AGREED THAT THE COMPANY’S LIABILITY WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, OR OTHERWISE SHALL NOT EXCEED THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE PAID BY PURCHASER FOR THE PRODUCTS PURCHASED HEREUNDER AND UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOST PROFITS, EMOTIONAL DAMAGES, OR OTHER INDIRECT COSTS. THE PURCHASE PRICE STATED FOR THE EQUIPMENT AND/OR SERVICES IS A CONSIDERATION IN LIMITING THE COMPANY’S LIABILITY. BY SIGNING THIS CONTRACT PURCHASER ALSO EXPRESSLY WAIVES, AND AGREES THAT PURCHASER SHALL NOT BE ENTITLED TO RECOVER DAMAGES OR LOSSES OF ANY KIND, WHETHER DIRECT OR CONSEQUENTIAL, BASED ON NEGLIGENCE, UNLESS GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT IS FINALLY ADJUDICATED TO HAVE SOLELY CAUSED THE DAMAGES OR LOSSES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS CONTRACT MAY BE BROUGHT BY PURCHASER MORE THAN THE EARLIER OF: (1) ONE YEAR AFTER THE DATE OF THE ORIGINAL INSTALLATION; OR (2) TWO YEARS FROM THE DATE OF THIS CONTRACT.
15. ELECTRONIC SIGNATURE AUTHORIZATION.
Customer hereby requests and authorizes the Company to accept the Customer’s electronic signature as the Customer’s legal signature for all transactions between Customer, Company and all vendors contracted by the Company to provide services to Customer. Customer hereby agrees that when his electronic signature is affixed to or contained in any data related to a transaction with the Company shall be sufficient to verify that Customer properly authorized such transaction. Customer agrees that an agreement will be considered signed when the Customer’s electronic signature is transmitted with an electronic document. Such signature will be treated in all respects as having the effect as an original handwritten signature.