These Terms and Conditions are part of the contract documents for any transaction between
WARNER SERVICE, LLC (“Warner”) and any construction, installation, service or
maintenance customer (“Customer”) with whom Warner agrees to perform work. These Terms
and Conditions supersede any other contracts or documents, and where a conflict exists between these Terms and Conditions and any other contract documents, these Terms and Conditions shall govern. These Terms and Conditions constitute a binding contract between Customer and Warner and shall be referred to herein as either “Terms and Conditions” or this “Agreement.” This proposal may be withdrawn by Warner at any time prior to receipt of notice of acceptance by Customer and/or if it is not approved by a properly appointed officer of Warner.
Prices quoted by Warner are valid for thirty (15) days only. Customer agrees to pay
all invoices rendered by Warner for work performed on behalf of Customer. Payment constitutes acceptance of the work. Customer agrees to pay for the work on a time and material basis or at a price agreed upon in writing by Warner and Customer. Customer also agrees that payment is due upon completion of the work. If Customer contends that any invoice is incorrect, Customer must so notify Warner within seven (7) days after receipt of the invoice. If Customer does not so notify Warner: (1) Customer forever waives the right to dispute the accuracy of the invoice; and (2) Warner’s rights in and to payment shall be absolute and unconditional and shall not be subject to any abatement, reduction, set-off, defense, counterclaim or recoupment for any reason, including without limitation any past, present, or future claims that Customer may have against Warner. Customer understands that any past due amounts are subject to a 2% per month service charge. Furthermore, failure to pay Warner in full for any work performed by Warner shall allow Warner to immediately cease work on this or any other projects for Customer. Customer acknowledges and agrees that if Customer’s account becomes assigned to a collection agency, Customer shall pay all collection agency fees, court costs, and attorney’s fees incurred by Warner.
Title to all equipment and materials provided by Warner under this Agreement shall not pass to Customer until payment in full has been received by Warner. Warner shall have a security interest in the equipment, parts, and materials installed for Customer until payment in full is received by Warner. Customer acknowledges Warner’s security interest by executing this Agreement. Warner’s secured interest shall apply for all purposes, including but not limited to any bankruptcy or against any person claiming an interest in and to the goods or equipment. It is hereby agreed that a posted notice, a form UCC-1, or other public filing may be made as evidence of a security interest in the equipment and/or retention of title to the equipment by Warner until paid in full. By executing this Agreement, Customer consents to and acknowledges that Warner has a security interest in any equipment provided and/or installed by Warner. Customer consents to and acknowledges that Warner may exercise, in addition to the rights and remedies contained herein, all rights and remedies of a secured party under the Uniform Commercial Code or any other applicable law. In the event of non-payment, Customer also grants Warner an unhindered right of entry onto the premises at which the work is performed to remove all materials or supplied delivered or installed by Warner.
All work performed by Warner is new and conforms with all applicable codes and industry standards generally applicable in the area under similar circumstances as of the time Warner performs the work and/or manufacturer’s recommendations.
Should Warner be unable to obtain any material(s) specified in the Agreement or any Change Order, Warner shall have the right in its sole discretion to substitute comparable materials, and such substitution shall not affect the contract price.
Customer grants to Warner a right of unhindered entry to the property where the work is to be performed to deliver or collect materials, tools, and equipment, and or to perform Warner’s work. This right shall not be terminated by a single use but shall authorize multiple entries as required with no liability as to damage caused by access to the work.
Extra materials left over upon completion of the work contemplated by this Agreement shall be deemed Warner’s property, and Warner may enter the premises to remove excess materials at all reasonable hours.
In the absence of a written schedule, Warner’s work shall be performed within a reasonable period of time. The agreed upon price for the work assumes that the work will be performed on weekdays, non-holidays, and during normal business hours (8AM to 4PM). Warner shall not be required to adhere to a schedule that Warner did not have input in developing.
Parts and equipment are guaranteed for one (1) year from the date of installation, and a labor warranty is not included. Certain equipment installed may carry a manufacturer’s warranty, which, if longer than one (1) year stipulated above, is for parts only.
Warner provides no warranty on drain or sanitary line cleaning. Warner shall not be responsible for subsequent clogs after confirmation by a Warner technician that the clog identified at the service appointment was cleared. Warner shall not be responsible for repairs or replacement of parts made necessary because of negligent acts or omission of the Customer or otherwise, nor any claims, damages, losses, or expenses, arising from or related to conditions that existed in, on, or upon the premises before the effective date of the work of Warner. The work performed by Warner is often in conjunction with or close to materials that might cause damage to property or persons. To induce Warner to perform his work, Customer waives claims against Warner for any personal or property damage caused by or related to asbestos, mold, or PCB’s. Customer acknowledges that to the extent Warner has provided any type of design services or representations in conjunction with its work, those design services or representations were based upon Warner’s best judgment only. Warner’s work has been provided without any warranty whatsoever relating to any design services or representations, including but not limited to any representations concerning tax credits that may be applicable under the American Recovery & Reinvestment Act of 2009 or any other current or future legislation.
Warner shall perform the scope of work set forth above or as otherwise agreed to in writing for the agreed upon price. All bids and/or proposals presume the existence of suitable conditions for the placement of all equipment, goods, and work required to be installed by Warner and the existence of conditions as per plans. It is also presumed that access shall be granted by Customer in a method suitable to allow Warner unhindered access to the work area for delivery of all materials and the performance of work. Any work not specifically indicated or mentioned in this Agreement, work ticket or invoice that must be added, repaired, or replaced because of hidden, concealed, or changed conditions, or that is required for compliance with building codes or other regulations, shall result in a change order, and shall be paid for in full by the Customer. If Warner’s work is delayed because Warner is unable to obtain equipment or materials from the manufacturer (delays due to long-term lead items), Warner is entitled to additional compensation in the form of a Change Order for Warner’s down time on a time and materials basis.
Warner shall have the right to terminate this Agreement for cause; cause shall include but is not limited to non-payment or any other material breach of these Terms and Conditions. In the event of termination of this Agreement for cause, Warner shall be entitled to the value of all services provided to Customer. Warner shall also be entitled to recover its reasonable attorney’s fees and costs incurred because of Customer’s breach of the Agreement.
Warner’s liability in contract, or otherwise, for damage or loss of other property, equipment, profits, revenue, cost of capital, or any other type of loss related to the service or equipment installed by Warner shall not exceed the price of the equipment, part, or cost of service on which such liability is based. In no event shall Warner be liable to Customer or any third party for any loss of use, revenue or profit, or for any consequential, indirect, incidental, exemplary, special or punitive damages, whether arising out of breach of contract, tort, or otherwise. Further, in no event shall Warner be responsible for any damages relating to delay, regardless of the cause of the delay.
Any legal action by Customer relating to this Agreement or the work performed by Warner must be commenced within one (1) year from the last date the work was performed, or the right to file a legal action shall be forever waived.
Warner shall not be liable to Customer, nor be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing Warner’s work when such breach or delay is caused by or results from acts or circumstances beyond the reasonable control of Warner, including but not limited to acts of God, flood, fire, earthquake, explosion, governmental actions, war, terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes, or power outage, provided that, if the event in question continues for a period in excess of thirty (30) days, Customer shall be entitled to give notice to Warner to terminate this Agreement.
To the extent that the scope of work includes maintenance/service of
equipment, the terms of this Paragraph 15 shall apply.
a.) Maintenance agreements are non-refundable and non-transferable. Customer may not transfer a maintenance agreement to any third party, including to a subsequent purchaser of the property where the equipment is located.
b.) Maintenance agreements do not carry over beyond the applicable term of the maintenance agreement. For example, if a maintenance agreement calls for one service call within one calendar year and the customer does not schedule a service call within that calendar year, the service call does not carry over beyond that calendar year. If maintenance does not take place within the term of the maintenance agreement, Warner shall not be obligated to provide maintenance after the expiration of the term of the maintenance agreement.
c.) It is Customer’s responsibility to schedule maintenance calls provided for in a maintenance agreement. Warner will send one e-mail or text message to Customer to remind Customer that it is time to schedule maintenance, but it is Customer’s obligation (not Warner’s obligation) to schedule maintenance calls.
d.) A promise on the part of Warner to maintain or provide maintenance to a piece of equipment does not constitute a promise or guarantee that the equipment will not break.
e.) A promise on the part of Warner to provide maintenance does not include a promise by Warner to provide repairs, either parts or labor. Repair costs are in addition to maintenance costs.
To the extent provided by law, this Agreement is made and shall be interpreted and enforced in accordance with the laws of the State of Maryland.
Customer acknowledges and agrees that all work performed by Warner Service has been completed in a satisfactory and workmanlike manner. Customer has been given the opportunity to address concerns and/or discrepancies in the work provided, and either Customer has no such concerns or has found no discrepancies, or any concerns and/or discrepancies have been addressed to Customer’s satisfaction. Customer fully and finally accepts all work performed by Warner.
Customer has reviewed this service ticket and agrees with all the information contained on all
sheets of this ticket.
ALL IMPLIED WARRANTIES ARE HEREBY DISCLAIMED AND WAIVED BY CUSTOMER. THE WARRANTY AND LIABILITY SET FORTH HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES AND LIABILITIES, WHETHER IN CONTRACT OR IN NEGLIGENCE, EXPRESS OR IMPLIED, IN LAW OR IN FACT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR FITNESS FOR A PARTICULAR PURPOSE AND/OR OTHERS ARISING FROM COURSE OF DEALING OR TRADE.