1. Acknowledgments, Representations, and Warranties
Customer represents and warrants that Customer is at least 21 years of age, and that the agreements, warranties, and representations made in this contract are true to the best of Customer’s knowledge. Customer represents and warrants that Customer does not intend to use nor shall Customer use the System for a building or space used for commercial, industrial, or multi-family housing purposes. Customer represents and warrants that, prior to Equipment or Services purchase, Customer received, read and understands the terms and conditions of the limited warranty. Customer represents and warrants that Customer owns the System as indicated and specified above. Customer warrants, represents, and affirms that Del-Air provided Customer with a written Notice of Cancellation form. Customer represents and warrants that Customer understands and agrees that all sales contemplated by this Agreement are final, no return and no refund permitted, except for Customer’s right to revoke this Agreement within three (3) days of its acceptance and execution by Del-Air or as otherwise permitted by law.
2. DISCLAIMER/LIMITATION OF LIABILITY
CUSTOMER UNDERSTANDS AND AGREES AS FOLLOWS: (I) NEITHER COMPANY NOR ITS DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS OR EMPLOYEES (COLLECTIVELY, “REPRESENTATIVES”) IS AN INSURER; (II) THE COMPANY AND REPRESENTATIVES SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR FOR THE LOSS OF PROFITS, REVENUES, OR ANY OTHER LOSSES ARISING OUT OF COMPANY’S BUSINESS OPERATIONS, ITS SALE, INSTALLATION, OR MAINTENANCE OF THE SYSTEM, OR ANY DEFAULT UNDER THIS AGREEMENT, EVEN IF COMPANY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE; (III) EXCEPT FOR PERSONAL INJURY CAUSED BY COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, COMPANY’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT PAID TO COMPANY UNDER THIS AGREEMENT, EVEN IF A TERM OF THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
3. Indemnification of Company
Customer agrees to defend, hold harmless, and indemnify Company its Representatives, officers, directors, employees, and agents for any and all losses, damages, and liabilities, legal or non-legal, arising out of any breach of this Agreement by Customer and any interruption in electrical services or as to any other incident or event as to the System which is not caused by the willful misconduct or gross negligence of Company. Customer further agrees with Company that this indemnification shall include, without limitation, any attorney’s fees, costs, or other legal or non-legal expenses of any description incurred by Company.
4. Assignment
Customer may not assign this Agreement without the prior written consent of Company. This Agreement shall inure to the benefit of and be binding upon Company’s successors and assigns, including any purchaser of all or substantially all of Company’s assets or business.
5. Arbitration
Most of Your concerns about the Agreement can be addressed by contacting Us at 888-831-2665. In the event We cannot resolve any dispute relating to this Agreement with You, then we both agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration before a single arbitrator administered by the American Arbitration Association (the “AAA”) in accordance with its Consumer Arbitration Rules. Unless the parties agree otherwise, the arbitration hearing shall be held in the county and state in which Company maintains its corporate headquarters. Company and Customer knowingly both give up the right to resolve any controversy or claim arising out of or relating to this Agreement in court, whether in front of only a judge, or in front of a judge and a jury. The parties agree to arbitrate solely on an individual basis, and that this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Neither the AAA nor the arbitrator shall have the power to consolidate more than one person’s claims or to otherwise preside over any form of a representative or class proceeding. A judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
NOTICE TO RETAIL BUYER: Do not sign this contract in blank. You are entitled to a copy of the contract at the time you sign. Keep it to protect your legal rights.
BUYER’S RIGHT TO CANCEL: This is a home solicitation sale, and if you do not want the goods or services, you may cancel this agreement by providing written notice to the seller in person, by telegram, or by mail. This notice must indicate that you do not want the goods or services and must be delivered or postmarked before midnight of the third business day after you sign this agreement. If you cancel this agreement, the seller may not keep all or part of any cash down payment.
6. Maintenance Plan
If you purchase a Plan, Company shall maintain and service the System listed in this Agreement in accordance with the Plan’s specific schedule and contemplated services. Company shall provide scheduled preventive maintenance in Company’s sole discretion based upon Company’s assessment of the recommended maintenance schedule for the specific needs of the System. Customer may request, and Company may provide, other maintenance at Customer’s request at an additional charge. Service maintenance may include, without limitation, lubrication, adjustments, testing, and replacement of parts and components deemed necessary by Company in its sole discretion. The Plan does not include the cost of air filters for the System. Customer is responsible for purchasing air filters for the System and replacing them monthly, bi-monthly, quarterly, or semi-annually based on the air filter and System type. Company is not responsible for supplying air filters for any maintenance visits but will replace air filters as a courtesy if Customer has air filters available during a maintenance visit.
7. Scheduling Maintenance Under the Plan
Customer agrees Customer is responsible for scheduling all maintenance visits with Company during the Term. Customer acknowledges and understands that Company cannot guarantee available maintenance appointments.
8. Access to the Premises
Customer or anyone living with Customer allows Company, its employees, and any other authorized persons safe access to the Premises for any Premises visits or visits conducted to the Premises pursuant to the Plan.
9. Customer Satisfaction
If for any reason Customer is not satisfied with the work performed pursuant to the Plan, Customer may contact 888-831-2665 within five (5) days of any completed maintenance appointment to discuss any questions or issues, and request and schedule a maintenance visit as agreed between the Customer and Company to address any concerns of Customer.
10. Plan Exclusions
This section details what this Agreement does not cover. Company will not provide coverage (whether in the form of the cost of parts and labor, replacement, indemnification, or otherwise) under this Agreement for the following: (a) Damage that is covered by any other warranty or service contracts, insurance policies, or product recalls; (b) parts and services covered during the manufacturer’s warranty period are the sole responsibility of the manufacturer; (c) damage to the System and its components that (i) have missing or altered serial numbers, or (ii) are being used, or have been used, in a commercial, industrial, or multi-family housing setting; (d) damage resulting or arising from: (i) pre-existing defects or conditions, which are defects or other conditions that existed prior to the Effective Date; (ii) unauthorized modifications to the System, including the unauthorized removal, bypass, or disabling of safety features; (iii) unauthorized repairs; (iv) intentional damage or the misuse or abuse of the product; (v) third-party acts, including theft and vandalism; (vi) failure to perform preventative maintenance, as outlined in any accompanying instructional booklets or information and including, without limitation, failure to maintain proper levels of lubricants or coolants, or using filters as instructed; or (vii) any cause other than normal use and operation of the System in accordance with the manufacturer’s specifications, instructions, or owner’s manual; and (e) filters for use with the System.
11. Increase in Charges
Company shall have the right to increase the cost of the Plan and its periodic charges at any time or times after the expiration of the first year of the Term upon giving you not less than thirty (30) days written notice in advance of the effective date of such price change. If you are unwilling to pay any revised charge, you may cancel this Agreement by providing Company with written notice within twenty-one (21) days of the date of Company’s notice of its price change. In such instance, this Agreement will terminate on the effective date of the price change unless Company rescinds the change. If Company rescinds the price increase, Company may elect to continue this Agreement at the same price and periodic charges then-current before notice of the price change. The Parties agree they must strictly comply with the time periods in this paragraph.
12. Late Charges
You shall also pay to Company an administrative fee equal to five percent (5%) of any payment due hereunder received by Company after the date on which such payment is due as agreed upon as damages and not as a penalty. There is no penalty for prepayment in full.
13. Charges and Payments
Customer is responsible for the total amounts due and owing as set forth Sections 1 and 2. Charges for on-call, unscheduled service, or for services otherwise requested by Customer shall be at Company’s then-published rates. Notwithstanding anything contained in this Agreement, Customer agrees the minimum charge for all on-call, unscheduled service, or for services otherwise requested by Customer is three (3) hours, even if such service takes less than three (3) hours. Customer agrees to pay Company at the time of service is completed for all on-call, unscheduled service, or for services otherwise requested by Customer.
14. Termination
You may not cancel this Agreement except within three (3) days of its execution or as otherwise permitted by law. Company may terminate this Agreement for any reason upon not less than ninety (90) days’ written notice to Customer. If We cancel this Agreement, You will receive a pro-rata refund of the Agreement price based on the time remaining on the Agreement.
15. Mobile Terms and Conditions
If you enroll in the Company’s text messaging (SMS) program, you will be asked to consent expressly by providing your mobile telephone number, and responding with specified prompted key word(s), or SMS/MMS or other text message affirmative response as your agreement and consent to receive recurring marketing messages sent by Company or Company vendors to the mobile number you provided at opt-in as part of this Agreement. Message and Data Rates May Apply. Messages sent from automated system. Consent not required for purchase. Opting Out: You may unsubscribe from a program at any time by texting STOP to 904-834-4015. For additional help, you can text HELP to 904-834-4015, email service@delair.com or call 888-831-2665. You agree that the Company, in its sole discretion, may establish general practices and limits concerning use of any mobile application. Message frequency depends on the program, but typically no more than 8 messages per month are sent for a single campaign. Campaigns may not work with all carriers.
16. Entire Agreement
The Parties acknowledged and agree this is a legally binding agreement. The Parties acknowledge and agree that this Agreement constitutes the entire agreement of the Parties and there are no other verbal or written agreements between them. Each Party affirms that there are no contemporaneous oral promises, representations, or agreements not set forth herein inducing entry into this Agreement and all prior negotiations, discussions, statements, and representations are merged herein. This Agreement may only be modified by a written modification signed by both Parties. Reliance by the Parties on verbal communication accordingly is unwarranted. All capitalized terms shall have the meanings ascribed to such terms in this Agreement. Contractor is engaged in the service and maintenance of systems like the System owned or operated by Customer and has been requested to provide maintenance to the System or Equipment pursuant to the Terms and Conditions.
Form # DA-HSC/ 03-2023
