Terms and Conditions of Service
DATE LAST MODIFIED: February 1, 2023
(a) These terms and conditions of service (the “T&Cs”) are the only terms that govern the sale of maintenance services and repairs (“Services”) by H 2 O Power Equipment, LLC, a Colorado limited liability company (“Company”) to the client identified on the Pressure Washer Preventive Maintenance Agreement (the “Agreement,” and together with the T&Cs, these “Terms”) to which the T&Cs relate (“Client”). Client and Company may be referred to herein individually a “Party” and collectively the “Parties” to these Terms. Notwithstanding anything in the T&Cs to the contrary, the T&Cs shall control with respect to any inconsistency between the Agreement and the T&Cs. Capitalized terms used and not otherwise defined in the T&Cs shall have the respective meanings ascribed to them in the Agreement.
(b) Together, the Agreement and the T&Cs comprise the entire agreement between Company and Client, and supersede all prior or contemporaneous understandings, agreements, negotiations,
representations and warranties, and communications, both written and oral. These Terms prevail over any of Client’s general terms and conditions of purchase regardless of whether or when Client has submitted its purchase order or such terms. Fulfillment of Client’s order does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.
- Changes to these Terms. We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately when posted, and apply to all Services performed by Company thereafter. Company shall notify Client with respect to any material change in accordance with applicable law.
- Performance of Services.
(a) Company shall use reasonable efforts to meet any performance dates to render the Services specified in the Agreement, and any such dates shall be estimates only.
(b) With respect to the Services, Client shall: (i) cooperate with Company in all matters relating to the Services; (ii) respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform Services in accordance with the requirements of these Terms; (iii) provide such materials or information as Company may request to carry out the Services in a timely manner and ensure that such materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services.
- Client’s Acts or Omissions. If Company’s performance of its obligations under these Terms is prevented or delayed by any act or omission of Client or its agents, Company shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
- Term and Termination.
(a) Term. The initial Term shall commence on the Effective Date and shall terminate on the Expiration Date unless sooner terminated by either Party as provided in Section 4(b) . The Term shall automatically renew on the Expiration Date for successive terms at the frequency identified in the Scope (each, a “Renewal Term”), unless Client gives Company written notice of termination at least thirty days’ prior to the commencement of any Renewal Term.
(i) By Company. Company may terminate these Terms at any time upon
thirty days’ prior written notice to Client. In addition, Company may terminate these
Terms effective immediately upon notice of Client’s breach of these Terms without any
incurring any further liability.
(ii) By Client. Client may terminate these Terms upon prior written notice without cause at any time; provided, however, that Client’s termination prior to the Expiration Date without Cause (as defined herein) will result in a cancellation charge equal to the Rate of Service for all visits remaining in the then-current Term. Client may terminate these Terms for Cause without incurring any further liability. “Cause,” for the purpose of this Section 4(b)(ii) , shall mean Company’s grossly negligent or willful breach of its obligations under these Terms that is incapable of cure or that Company fails to cure within thirty days following Company’s receipt of notice from Client of such breach.
- Rate of Service. Client shall purchase the Services from Company at the Rate of Service. The Rate of Service is subject to a renewal rate increase of 2.5% to be effective as of the first day of each Renewal Term. Any parts, repairs, or labor performed in addition to the Services will be billed at the Company’s then current parts prices and hourly labor rate. The Rate of Service is exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind.
- Payment Terms.
(a) Client shall pay all invoiced amounts due to Company as elected on the Scope unless otherwise agreed to by Company in writing. All work is cash on delivery (unless pre-approved credit has been arranged).
(b) Client shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall reimburse Company for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Company does not waive by the exercise of any rights hereunder), Company shall be entitled to suspend the performance of any Services if Client fails to pay any amounts when due hereunder.
(c) Client shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Company.
- Warranty Disclaimer. COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
- Limitation of Liability.
(a) IN NO EVENT SHALL COMPANY BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO COMPANY FOR THE SERVICES.
(c) The limitation of liability set forth in Section 8(b) shall not apply to: (i) liability resulting from Company’s gross negligence or willful misconduct; and (ii) death or bodily injury resulting from Company’s acts or omissions.
- Compliance with Law. Client shall comply with all applicable laws, regulations, and ordinances. Client shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms. Client shall comply with all export and import laws of all countries involved in the sale or any resale of any Equipment serviced by Company under or in connection with these Terms.
- Waiver. No waiver by Company of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Company. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Confidential Information. All non-public, confidential or proprietary information of Company, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Company to Client, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized in advance by Company in writing. Client shall be responsible for any breach of this Section 11 caused by any of its representatives and/or employees. Upon Company’s request, Client shall promptly return all documents and other materials received from Company. Company shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Client at the time of disclosure; or (c) rightfully obtained by Client on a non-confidential basis from a third party.
- Force Majeure. Neither Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms (except for any obligations of Client to make payments to Company hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (each, a “Force Majeure Event”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of these Terms; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; (i) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within five days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of sixty days following written notice given by it under this Section 12, either Party may thereafter terminate this Agreement upon five days’ written notice.
- Assignment. Client shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Company. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under these Terms.
- Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
- No Third-Party Beneficiaries. These Terms are for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
- Governing Law. Colorado law, and rules and regulations issued pursuant thereto, shall be
applied in the interpretation, execution, and enforcement of these Terms. Any provision included or
incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to these Terms shall be filed and proceedings held in the State of Colorado and exclusive venue shall be brought exclusively in binding arbitration in Denver, Colorado. Any dispute not properly disposed of through arbitration may be brought in a court of competent jurisdiction in Denver County, Colorado, and the Parties waive all right to a jury trial in any such action. The prevailing Party in any action for breach of these Terms, as determined by the presiding factfinder, but in all cases requiring that such Party receive substantially all of the relief sought thereby, shall be entitled to recover its reasonable attorney fees and costs. Notwithstanding anything herein to the contrary, nothing in this Section shall preclude either Party from seeking interim or provisional relief, including a temporary restraining order, preliminary injunction, or other interim equitable relief, if necessary to protect the interests of such Party.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to Company at: 6057 East 49th Drive, Denver, Colorado 80022, and to Client at the address set forth on the Agreement, or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only: (a) upon receipt of the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section.
- Severability. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms.
- Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each Party.