Terms & Conditions

General Terms and Conditions

1. Applicability.  
   1. These terms and conditions of sale (“Terms”) are the only terms which govern the sale, delivery, or provision of the goods, equipment, labor, and/or services (the “Work”) by Energy Seal of KC, Inc., a Kansas corporation; UHC – CNC, Inc., a Kansas corporation, f/k/a United Commercial Heating & Cooling, Inc.; United Business Enterprises, Inc., a Kansas corporation; United Care Warranty, Inc., a Kansas corporation; United Heating & Cooling Service Company, Inc., a Kansas corporation; United Heating & Cooling, Inc., a Missouri corporation; UHC – Replacement, Inc., an Arizona corporation, f/k/a United Heating, Cooling & Plumbing of Arizona, Inc.; UHC – RNC, Inc., a Kansas corporation, f/k/a United Heating, Cooling & Plumbing of Cave Creek, Inc.; and/or UHC – Plumbing, Inc., a Kansas corporation, f/k/a United Plumbing and Service Co. (collectively, “Seller”) to the buyer or customer (“Buyer”), as contemplated in the accompanying accepted proposal (“Accepted Sales Proposal”).
   2. The Accepted Sales Proposal and these Terms (collectively, this “Agreement”) comprise the entire agreement between Seller and Buyer, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, both written and oral. To the extent that the Accepted Sales Proposal is inconsistent with these Terms, the Terms shall govern and control.  Fulfillment of Buyer’s order does not serve to modify or amend these Terms or the Agreement.
2. Delivery.  
   1. The goods and services will be delivered within a reasonable time after the receipt of Buyer’s confirmation, either in writing or electronically. Seller shall not be liable for any delays, loss or damage in transit.
   2. Unless otherwise agreed in writing by the parties, Seller shall deliver the Work where instructed by Buyer or to the address set out in the Accepted Sales Proposal (the “Delivery Point”).
   3. Seller may, in its sole discretion, without liability or penalty, make partial shipments of any goods or materials to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for items shipped whether such shipment is in whole or partial fulfillment of Buyer’s order.
   4. If for any reason Buyer fails to accept delivery of any of the goods or materials delivered at the Delivery Point, or if Seller is unable to deliver the goods or materials at the Delivery Point because Buyer has not provided appropriate instructions, documents, licenses, or authorizations: (i) risk of loss to the goods and materials shall pass to Buyer; (ii) the goods and materials shall be deemed to have been delivered; and (iii) Seller, at its option, may store the goods and materials until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Work at the Delivery Point.  As collateral security for the payment of the purchase price of the Work, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Work, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.  The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code.
4. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
5. Inspection of Work.  
   1. Buyer shall inspect the Work within two (2) days of receipt or substantial completion (“Inspection Period”). Buyer will be deemed to have accepted the Work unless it notifies Seller in writing during the Inspection Period of any objections to the Work and furnishes such written evidence or other documentation as required by Seller. 
6. Price.
   1. Buyer shall purchase the Work from Seller at the price[s] (the “Price[s]”) set forth in Seller’s invoice and the Accepted Sales Proposal provided to Buyer.
   2. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets. 
7. Payment Terms.  
   1. Buyer shall pay all invoiced amounts due to Seller within 30 days from the date Buyer receives Seller’s invoice.
   2. Buyer 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. Buyer shall reimburse Seller 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 Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery or performance of any Work if Buyer fails to pay any amounts when due hereunder.
   3. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
8. Limited Warranty.  
   1. Seller warrants to Buyer that for a period of one year from the date of delivery or substantial completion of the Work (“Warranty Period”), that such Work will materially conform to Seller’s published specifications in effect as of the date of this Agreement and will be free from material defects in material and workmanship.
   2. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8(A), SELLER MAKES NO WARRANTY WHATSOEVER, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE WORK, INCLUDING WITHOUT LIMITATION ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY OF TITLE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.           
   3. Products, goods, materials, labor, or services manufactured or provided by a third party (“Third Party Product(s)”) may constitute, be contained in, incorporated into, attached to, or packaged together with, or part of, the Work. Third Party Products are not covered by the warranty in Section 8(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, INCLUDING WITHOUT LIMITATION ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY OF TITLE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
   4. Seller shall not be liable for a breach of the warranty set forth in Section 8(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within 10 days after the date that Buyer discovers or reasonably should have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Work and Buyer (if requested to do so by Seller) returns the Work or any portion thereof to Seller’s place of business for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Work is defective.
   5. Seller shall not be liable for a breach of the warranty set forth in Section 8(a) if: (i) Buyer makes any further use of such Work after discovering a defect in the Work; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the Work; (iii) Buyer alters or repairs such Work without the prior written consent of Seller; or (iv) the defect is otherwise caused by Buyer.
   6. Subject to the provisions set out above, Seller’s liability (regardless of the legal theory upon which such liability is based) for any Work shall be limited to Seller either, in its sole discretion: (i) repairing or replacing the Work (or the defective part thereof); or (ii) crediting or refunding the price of such Work at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Work (or any portion thereof) to Seller.
   7. THE REMEDIES SET FORTH IN SECTION 8(f) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8(a).
9. Limitation of Liability.  
   1. IN NO EVENT SHALL SELLER OR ANY OF SELLER’S AFFILIATES OR SUCCESSORS OR ASSIGNS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, PROFIT, GOODWILL, OR LOSS OF DATA OR DIMINUTION IN VALUE, 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 SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   2. IN NO EVENT SHALL SELLER’S OR ANY OF SELLER’S AFFILIATES OR SUCCESSORS OR ASSSIGNS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE RELATIONSHIP CREATED THEREBY, WHETHER UNDER THE THEORY OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EXCEED THE TOTAL OF THE AMOUNTS PAID BY BUYER TO SELLER HEREUNDER OR $10,000, WHICHEVER IS LESS.
10. Disclaimers.
    1. Noise or Sounds. To the extent that sheet metal has been provided or installed as part of the Work, Buyer understands and acknowledges that the sheet metal may emit noises or sounds as part of its normal use and operation.  Sheet metal will expand and contract as it heats and cools.  Additionally, Buyer acknowledges that all HVAC systems emit noises or sounds as part of their normal use and operation.  For example, air moving through ducts will emit noise or sound.  Buyer waives and releases Seller and all of Seller’s affiliates, successors, and assigns from any claims, liabilities, damages, losses, and actions of any kind relating in any way to any noise or sounds emanating from or caused by the Work, including without limitation any HVAC systems installed as part of the Work. 
    2. HVAC Maintenance. Buyer acknowledges and agrees that (a) all HVAC (heating, ventilation, and air conditioning) systems must be maintained on an annual basis; and (b) home exteriors must be caulked and painted on a regular basis (collectively, the “Owner Maintenance Obligations”).  Buyer waives and releases Seller and all of Seller’s affiliates, successors, and assigns from any claims, liabilities, damages, losses, and actions of any kind arising from or relating in any way to Buyer’s failure to timely perform any Owner Maintenance Obligations.
11. Insurance. During the term of this Agreement and for a period of twelve (12) months thereafter, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000.00 with financially sound and reputable insurers.  Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms.  The certificate of insurance shall name Seller as an additional insured. Buyer shall provide Seller with 30 days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy.  Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.
12. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for 10 days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
13. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller.  No failure by Seller to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement 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.
14. Confidential Information. All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, 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 this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing.  Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller.  Seller shall be entitled to injunctive relief for any violation of this Section, and Seller shall not be required to post or provide a bond or surety to obtain such injunctive relief.  This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
15. Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemics, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 10 days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
16. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller.  Any purported assignment or delegation in violation of this Section is null and void.  No assignment or delegation relieves Buyer of any of its obligations under this Agreement.  Seller may at any time and in its sole discretion assign all or any part of its right, title, interest, and obligations under this Agreement, without Buyer’s consent or approval, and upon such assignment Seller shall be relieved of any liability under this Agreement.
17. Relationship of the Parties. The relationship between the parties is that of independent contractors.  Nothing contained in this Agreement 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.
18. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto 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.
19. Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Missouri without giving effect to any choice or conflict of law provision or rule (whether of the State of Missouri or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Missouri.
20. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Missouri in each case located in Jackson County, Missouri.  Each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
21. Notices. All notices, request, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Accepted Sales Proposal 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), 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 if the party giving the Notice has complied with the requirements of this Section.
22. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
23. Survival. All of Buyer’s obligations, covenants, warranties, waivers, and releases under this Agreement and all other provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Title and Risk of Loss, Delivery, Inspection of Work, Payment Terms, Limitation of Liability, Insurance, Compliance with Laws, Confidential Information, Governing Law, Disclaimers, Submission to Jurisdiction, Assignment, No Third Party Beneficiaries, Survival, and Attorney Fees and Costs of Collections.
24. Attorney Fees and Costs of Collections. In any action or counterclaim related in any way to this Agreement or the relationship created thereby, or in any action or counterclaim asserted by Seller to enforce this Agreement, Buyer shall pay all of Seller’s reasonable attorneys’ fees and expenses and costs of any kind, and Seller shall be entitled to a judgment against Buyer for all such attorneys’ fees, expenses, and costs.  Additionally, Buyer shall pay all of Seller’s collection costs incurred in enforcing this Agreement, including without to collect any amounts owed by Buyer or any judgment entered against Buyer, and Seller shall be entitled to a judgment against Buyer for all such amounts.  As used herein, “collection costs” shall include any expenses incurred by Seller or a third-party hired by Seller to collect any amounts due from Buyer under this Agreement or any judgment entered against Buyer, including without limitation any costs and attorneys’ fees incurred after a judgment has been entered against Buyer at law or equity.  Buyer further acknowledges and agrees to indemnify and hold Seller and all of Seller’s affiliates, successors, and assigns harmless against any and all third-party liability, claims, damages, or losses caused by Buyer’s nonperformance.