1. Acceptance of Terms
By accessing and using the services provided by Climate Mechanical Services, LLC (hereafter “CMS”, “we”, “us”, or “our”), including but not limited to HVAC installation, maintenance, repair, and BMS consulting and implementation services, you (“Client”, “you”, “your”) agree to be bound by these Terms of Service (“ToS”). These ToS constitute a legally binding agreement between you and CMS. If you do not agree with any part of these terms, you must refrain from using our services.
2. Service Description
CMS provides a range of services, including but not limited to:
• a. HVAC Services: Installation, maintenance, repair, and replacement of heating, ventilation, and air conditioning systems in commercial and industrial buildings.
• b. Building Management Systems (BMS): Design, installation, integration, monitoring, and consulting related to BMS, covering control systems for HVAC, lighting, security, and other building systems.
• c. Consulting Services: Consulting related to energy efficiency, building automation, and optimization of HVAC and BMS systems.
• d. Cloud Platform Services: Cloud-based monitoring and analytics services for building management systems through proprietary platforms.
The specifics of the services to be provided will be detailed in individual service agreements and project scopes, which will be incorporated into this ToS by reference.
3. Modification of Terms
CMS reserves the right to modify these ToS at any time. Any modifications will be effective immediately upon posting on our website or distribution to you. Your continued use of the services after any such changes constitutes your acceptance of the new ToS. It is your responsibility to review the ToS periodically for any changes.
4. User Responsibilities
• a. Compliance: You must ensure that your use of CMS services complies with all applicable local, state, and federal laws, regulations, and codes, including obtaining necessary permits and approvals for the installation and operation of HVAC and BMS systems.
• b. Site Access: You must provide CMS with safe and timely access to your premises to perform the services. This includes ensuring that all necessary utilities (electricity, water, etc.) are available during the service period.
• c. Information Accuracy: You agree to provide accurate and complete information to CMS as required for the provision of services. You are responsible for the accuracy of any data or specifications provided to CMS.
• d. Maintenance: You are responsible for performing regular maintenance and inspections of installed systems as recommended by CMS and relevant manufacturers. Failure to do so may void warranties and limit CMS’s liability.
5. Payment Terms
• a. Fees and Charges: The fees for services provided by CMS will be specified in the service agreement or invoice. All fees are exclusive of taxes, which will be added to your invoice where applicable.
• b. Payment Schedule: Payment terms, including due dates and methods of payment, will be specified in the service agreement or invoice. Late payments may incur fees, interest charges, and/or suspension of services.
• c. Disputed Charges: If you dispute any charges on your invoice, you must notify CMS in writing within ten (10) business days of receiving the invoice. Failure to do so will result in your waiver of the right to dispute the charges.
• d. Non-Payment: In the event of non-payment, CMS reserves the right to suspend or terminate services, recover outstanding amounts through collections, and/or take legal action to recover the debt, including attorney’s fees and costs.
6. Intellectual Property
• a. Ownership: All intellectual property rights, including designs, drawings, documentation, software, and proprietary information provided by CMS, remain the exclusive property of CMS or its licensors.
• b. License: CMS grants you a limited, non-exclusive, non-transferable license to use the deliverables provided for your internal business purposes only. You may not modify, distribute, sublicense, or create derivative works without explicit written consent.
• c. Third-Party Software: If CMS provides or integrates third-party software as part of the services, you agree to comply with the terms and conditions of the applicable software licenses.
7. Confidentiality
• a. Confidential Information: Includes any proprietary or sensitive information disclosed by one party to the other in connection with the services, whether orally or in writing. Both parties agree to maintain the confidentiality of such information and use it only for the purpose of fulfilling their obligations under the ToS.
• b. Exclusions: Confidential Information does not include information that is publicly known, independently developed by the receiving party, lawfully received from a third party, or required to be disclosed by law.
• c. Duration: The obligations of confidentiality shall survive the termination of this agreement for a period of five (5) years.
8. Warranty Disclaimer
• a. Services: CMS provides its services on an “as is” and “as available” basis, without any warranties of any kind, either express or implied.
• b. System Performance: CMS does not warrant that the HVAC or BMS systems will operate uninterrupted or error-free, or that they will meet your specific requirements. Performance may vary based on factors beyond CMS’s control.
• c. Third-Party Products: Any warranties for third-party products or software are provided solely by the respective manufacturers or licensors.
9. Limitation of Liability
• a. Direct Damages: To the maximum extent permitted by law, CMS’s liability for any claim arising under these ToS, whether in contract, tort, or otherwise, shall be limited to the amount paid by you to CMS for the specific service giving rise to the claim.
• b. Indirect Damages: CMS shall not be liable for any indirect, incidental, special, consequential, or punitive damages, even if advised of the possibility of such damages.
• c. Risk Allocation: The pricing of CMS’s services reflects this allocation of risk and the limitations of liability set forth in this ToS.
10. Indemnification
You agree to defend, indemnify, and hold harmless CMS, its officers, directors, employees, agents, and affiliates from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to:
• **a. Your breach of any term of this ToS or any service agreement.
• **b. Your violation of any applicable laws, regulations, or third-party rights.
• **c. Any negligent or wrongful act or omission by you, your employees, or your agents in connection with the use of our services.
11. Termination
• a. Termination for Convenience: Either party may terminate the service agreement for convenience with a written notice provided thirty (30) days in advance. Termination for convenience shall not relieve you of any payment obligations for services rendered up to the termination date.
• b. Termination for Cause: CMS may terminate this ToS immediately upon notice if you breach any material term of this ToS, fail to make timely payments, or otherwise engage in conduct that, in CMS’s sole discretion, could harm its business or reputation.
• c. Effect of Termination: Upon termination, you shall immediately cease using CMS’s services and return or destroy any proprietary information or materials provided by CMS. CMS shall have no further obligation to provide services after the termination date.
12. Governing Law and Jurisdiction
• a. Governing Law: This ToS shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to its conflict of law principles.
• b. Jurisdiction: Any legal action or proceeding arising under or relating to this ToS shall be brought exclusively in the state or federal courts located in the State of New Jersey, and the parties hereby consent to the personal jurisdiction and venue of such courts.
13. Dispute Resolution
• a. Arbitration: Any dispute, controversy, or claim arising out of or relating to this ToS or the breach thereof shall be finally resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitration shall take place in New Jersey, and the language of the arbitration shall be English.
• b. Costs: Each party shall bear its own costs and attorneys’ fees, and the parties shall equally share the costs of the arbitrator(s) and the administrative fees.
• c. Injunctive Relief: Notwithstanding the foregoing, CMS may seek injunctive or other equitable relief to protect its intellectual property rights or Confidential Information in any court of competent jurisdiction.
14. Force Majeure
CMS shall not be liable for any delay or failure to perform its obligations under this ToS due to events beyond its reasonable control, including but not limited to acts of God, war, terrorism, natural disasters, strikes, power failures, or governmental actions.
15. General Provisions
• a. Entire Agreement: This ToS, together with any service agreements, appendices, and amendments, constitutes the entire agreement between you and CMS and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations, and warranties, whether written or oral.
• b. Severability: If any provision of this ToS is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of the ToS, which shall remain in full force and effect.
• c. Waiver: No waiver of any term of this ToS shall be deemed a further or continuing waiver of such term or any other term, and CMS’s failure to assert any right or provision under this ToS shall not constitute a waiver of such right or provision.
• d. Assignment: You may not assign or transfer any rights or obligations under this ToS without the prior written consent of CMS. CMS may assign or transfer its rights and obligations under this ToS at its discretion.
• e. Notices: All notices required or permitted under this ToS shall be in writing and delivered by email, certified mail, or courier to the respective parties at the addresses provided in the service agreement.
• f. Survival: Provisions of this ToS which by their nature should survive termination shall survive, including but not limited to payment obligations, confidentiality, intellectual property, warranty disclaimers, and limitation of liability.
16. Labor and Product Warranties
• a. Labor Warranty:
o CMS provides a one-year labor warranty on all installation and repair services, effective from the date of service completion. This warranty covers labor-related issues due to defects in workmanship performed by CMS.
o If a defect in workmanship is identified within the warranty period, CMS will perform the necessary repairs or adjustments at no additional labor cost to you.
o This warranty does not cover labor for issues arising from misuse, improper maintenance by the client, modifications by third parties, or external factors such as weather, vandalism, or other acts of God.
• b. Product Warranty:
o Products installed or recommended by CMS are covered by specific warranties provided by their respective manufacturers. CMS facilitates these warranties but is not the provider.
o CMS is not liable for any defects in products supplied. If a product fails due to manufacturing defects, the responsibility for replacement or repair lies with the manufacturer under their warranty terms.
o If defective products require removal, replacement, or additional labor, such services will be billed to you. These additional labor costs are not covered under the initial proposal or the labor warranty. It is essential for clients to understand that while CMS will assist in addressing warranty claims with
manufacturers, any labor required due to defective products is subject to additional charges.
17. Manufacturer Liability
• a. CMS’s role: CMS serves as an intermediary in procuring and installing products but does not manufacture or warrant the performance of HVAC or BMS equipment and components.
• b. Client’s Acknowledgment: You acknowledge that any product defects are the responsibility of the manufacturer, and CMS is not liable for such defects. You agree to seek remedy directly from the manufacturers concerning defective products under their warranties.
• c. Additional Costs: You are responsible for the payment of any labor or service costs incurred due to the failure of products not covered under CMS’s labor warranty. This includes labor for diagnosing issues, uninstalling defective products, and installing replacements.