Terms & Conditions for Atlas AC Repair, LLC
PLEASE READ THESE TERMS CAREFULLY! THEY INCLUDE AN ARBITRATION PROVISION REQUIRING INDIVIDUAL ARBITRATION OF DISPUTES INSTEAD OF JURY TRIALS OR CLASS ACTIONS. By submitting your order or accepting or using products, you acknowledge that you agree to these terms in their entirety.
These Consumer Terms of Sale (“Terms”) apply to all purchases from Atlas or of Atlas products, services or equipment (“Product”) in the United States.
The Terms consist of this document and Atlas’:
a. Service Contracts, (for PM services purchases),
b. Consumer Warranties (for Atlas-branded hardware purchases),
c. Consumer Purchase Contracts (for equipment purchases),
Orders, Acceptance, and Cancellation. Your order is an offer to buy. Atlas may send an order confirmation email to acknowledge receipt of your order. Atlas may process payment for and ship parts of an order separately. Atlas reserves the right at any time, even after we send you a confirmation email, to decline or cancel your order or to limit order quantities for any reason, including errors or suspected fraud.
Pricing and Availability. Prices and promotions are subject to change. Atlas strives to communicate accurate pricing and product information, but errors may occur. In the unlikely event that an error impacts your order or a Product ordered is no longer available, we will either contact you for instructions or cancel your order.
Commencement and Completion. Atlas anticipates that it will cause the repairs, replacement or new installation of the HVAC equipment to commence upon receipt of the deposit. Substantial completion of the work will be reached in the agreed timeframe.
Approval of Plans. The Customer represents and warrants that the repairs or replacement of the HVAC equipment (“Plans”) has been approved by any contractor, association, or leaseholder having a right of architectural review and that if such approval has not been obtained Customer shall bear any costs resulting from changes to the Plans required as a result of any such review.
Taxes and Fees. Unless you provide Atlas with a valid and correct tax exemption certificate, you are responsible for sales and other taxes associated with your order.
Shipping. Product title passes to you when the Product ships and/or is installed. You are responsible for inspecting the package(s) upon delivery and must note any visible damage on the proof of delivery (POD) or other delivery receipt the carrier, technician, or installer asks you to sign. Atlas is not responsible for any damages not noted on the delivery receipt.
Warranty Disclaimer. ATLAS INCORPORATES ITS CONSUMER WARRANTIES REFERENCED ABOVE WHICH APPLY TO PURCHASES OF ATLAS-BRANDED HARDWARE. ATLAS MAKES NO WARRANTIES FOR SERVICE, MAINTENANCE OR SUPPORT OR FOR NON-ATLAS BRANDED PRODUCT, WHICH ARE PROVIDED “AS IS,” AND DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES AND CONDITIONS AGAINST HIDDEN OR LATENT DEFECTS.
Receiving Warranty or Service Support. IT IS YOUR RESPONSIBILITY TO CHECK THE BATTERIES IN THE THERMOSTAT AND THE SETTINGS, AND TO VERIFY ELECTRIC SERVICE AT THE BREAKER PANEL HAS NOT BEEN INTERRUPTED BEFORE RECEIVING SERVICES OR SUPPORT (INCLUDING TELEPHONE SUPPORT). ATLAS AND/OR YOUR THIRD-PARTY SERVICE PROVIDER WILL HAVE NO LIABILITY FOR ANY LOSS FOR TRIP CHARGE COSTS FOR SERVICE CALLS REQUESTED BY CUSTOMER. Parts used in repairing or servicing Product(s) may be new, equivalent-to-new, or reconditioned. Telephone Communications. Telephone communications with us, our agents, or independent contractors may be monitored and/or recorded. You expressly consent, on behalf of yourself and other users of your phone number, to such monitoring or recording. By providing us with a phone number (including mobile) as your contact number, you expressly authorize us to contact you on that number via text message or telephone, including via prerecorded or auto-dialed calls. This consent is for non-telemarketing calls only.
Limitation of Liability. In no event will Atlas be liable for any indirect, consequential, exemplary, incidental, or punitive damages, including lost profits, even if Atlas has been advised of the possibility of such damages. YOU AGREE THAT ATLAS LIABILITY IN ANY DISPUTE WILL BE CAPPED AT THE TOTAL AMOUNT YOU PAID FOR THE ORDER OR PRODUCT AT ISSUE. Some states do not allow limitation of certain damages, so these limitations may not apply to you.
Governing Law. THESE TERMS AND ANY DISPUTE BETWEEN YOU AND ATLAS WILL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAW.
Dispute Resolution and Binding Arbitration. YOU AND ATLAS AGREE TO RESOLVE ANY DISPUTES BETWEEN US EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS, WHICH MEANS YOU AND ATLAS WAIVE ANY RIGHT TO LITIGATE DISPUTES IN A COURT OR BEFORE A JURY, OR AS PART OF A CLASS ACTION, A REPRESENTATIVE ACTION, A CONSOLIDATED ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
a. This arbitration requirement applies to any claim or dispute of any kind (whether in contract, tort, or otherwise, whether pre-existing, present, or future, and including statutory, common law, or equitable) between you and Atlas, its agents, employees, successors, assigns, direct and indirect subsidiaries, and any third party providing any products or services to you in connection with your purchase (“Atlas”) that relates in any way to your purchase or Product, these Terms, or Atlas’ marketing or advertising (“Claims”).
b. You still have the right to bring individual Claims in small claims court, to the extent that you qualify.
c. Atlas will pay the arbitration/arbitrator fees.
d. Arbitration shall be administered by either:
i. The American Arbitration Association (AAA), subject to its Consumer Arbitration Rules, available at (800) 778-7879 and http://www.adr.org; or
ii. JAMS, subject to the JAMS Comprehensive Arbitration Rules, available at (800) 352-5267 and www.jamsadr.com.
e. The arbitrator shall have exclusive authority to resolve any arbitrability issues including any dispute over these Terms or this arbitration provision’s scope, application, meaning, and enforceability. The arbitrator shall be empowered to grant whatever relief would be available in court. Any award of the arbitrator(s) shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.
f. You and Atlas agree to arbitration only on an individual basis. Neither you nor Atlas may join or consolidate claims of others or participate in any claim as a class representative or a class member. If any portion of this arbitration agreement is found unenforceable, the unenforceable portion shall be severed and the remaining arbitration terms shall be enforced (but in no event will there be a class arbitration). This Paragraph controls over any inconsistent term in any other agreement.
g. This transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA).
Force Majeure. Atlas shall not be liable to Customer for failing to perform under this Agreement because of circumstances beyond the control of Atlas. Such circumstances shall include (but not be limited to) any acts or omissions of any government, natural disaster, acts of public enemy, riots, sabotage, war, terrorist acts, acts of God, or any events reasonably beyond the control of Atlas.
Lien Waiver/Release. Upon the Customer’s written request, Atlas will execute a lien waiver, release, or final contractor’s affidavit upon payment in full, including any applicable interest. WARRANTY DISCLAIMER: ATLAS WARRANTS THAT THE GOODS DESCRIBED HEREIN SHALL BE FIT FOR THE ORDINARY PURPOSES AS DESCRIBED IN THE QUOTE. SUCH WARRANTY OF GOODS SHALL EXPIRE EITHER: 1) AT THE END OF THE MANUFACTURER’S WARRANTY, OR 2) UPON NONPAYMENT, OR DEFAULT OF ANY PURCHASE FINANCING BY THE CUSTOMER. ATLAS DISCLAIMS ANY AND ALL OTHER EXPRESSED OR IMPLIED WARRANTIES.
Default. The following events shall constitute an event of default:
a. Breach: Failure of either party to perform this Agreement as provided herein;
b. Misrepresentation: If any representation or warranty of either party made herein or in connection with any of the agreements or transactions contemplated hereby shall prove to have been false in any material respect on the date when made.
c. Bankruptcy: If either party shall admit in writing its inability to pay its debts, suffer a receiver for all or substantially all of its property to be appointed, and, if appointed without its consent, to be discharged within thirty days; or institute proceedings under any law relating to bankruptcy, insolvency, or the reorganization or relief of debtors, or, if any such proceedings are instituted against it, shall suffer the same not to be dismissed or stayed within thirty (30) days.
If a default by Customer under this Agreement is not cured within ten (10) days after written notice by Atlas to Customer of the default, Atlas may at its option (i) withhold performance under this Agreement until a reasonable time after all defaults have been cured, (ii) declare all sums, due and to become due under this Agreement, to be immediately due and payable, and/or (iii) do anything else which the law permits.
Termination. This Agreement may only be terminated as provided hereunder. If an Event of Default occurs the other party shall notify the defaulting party of the default in writing (“Notice of Default”). If such default is not cured by the defaulting party within forty (40) days of receiving Notice of Default, then the party providing such notice may terminate this Agreement by providing the defaulting party written notice of termination (“Termination Notice”). Said Termination Notice shall be effective as of the date of receipt of Termination Notice. Notice of Default and Termination Notice shall be delivered by Certified Mail, Return Receipt Requested. Receipt shall be deemed effective as of the date of delivery. Termination of this contract will be subordinate to terms established in the lease/finance agreement if this option was selected for method of Payment.
Payment in the Event of Termination. If this Purchase Agreement is terminated, Atlas shall receive payment of the price prorated based upon the percentage of work completed as of the date of Termination Notice. All uninstalled products will be returned to Atlas if this Purchase Agreement is terminated.
Customer Responsibilities. Customer shall be solely and exclusively responsible for coordinating with Atlas and scheduling installation dates for work to be accomplished during normal business hours. Customer shall provide the installation crew with access to the premises at all scheduled times and such other times as may be reasonably necessary to timely complete installation. Customer is solely responsible to keep pets secured and away from the installation work.
Changes, Waivers. Neither this Agreement nor any of the provisions hereof may be changed, waived, amended, discharged or terminated orally, but only by statement in writing signed by Customer and Atlas.
Binding Effect. This Agreement shall be binding upon and inure to the benefit of Customer and Atlas and the respective successors and assigns; provided, however, that TEU may not assign or transfer its rights hereunder without the prior written consent of Client being first obtained. Any and all Exhibits attached hereto are incorporated herein by reference and made a part of this Agreement.
Severability. If any provision of this Agreement shall be deemed or held to be invalid, illegal or unenforceable in any respect, such provisions shall be severable from and shall not be construed to have any effect on the remaining provisions of this Agreement which shall continue in full force and effect.
Attorneys’ Fees. If any legal action is brought by either of the Parties, it is expressly agreed that the prevailing party in such legal action shall be entitled to recover from the other Party reasonable attorney’s fees in addition to any other relief that may be granted or awarded. For the purposes of this clause, the prevailing party is the Party in whose favor final judgment is entered. In the event that declaratory or injunctive relief alone is granted, the Court may determine which, if either, of the Parties shall be considered to be the prevailing party. The amount of reasonable attorney’s fees shall be determined by the Court, the trial of such action, or in a separate action brought for that purpose.
Insurance. Atlas shall maintain general liability and automobile insurance in an amount not less than TDLR requirements.
Construction. This Agreement supersedes any and all other agreements, either oral or written, between the Parties with respect to the subject matter of this Agreement and contains all of the covenants and agreements between the Parties with respect to the subject matter. Each Party to this Agreement acknowledges that no representations, warranties, inducements, promises, or agreements, oral or otherwise, have been made by any Party or anyone acting on behalf of any Party that are not set forth in this Agreement and that no purported agreement, statement, or promise not contained in this Agreement shall be valid or binding.
Proprietary Documents. All Products or Methods utilized or developed by Atlas in the performance of its obligations hereunder, all Policies and Procedures manuals and documents developed and utilized by Atlas in the performance of its obligations hereunder, and all other information provided or utilized by Atlas from time to time hereunder shall constitute confidential and proprietary information and/or trade secrets of Atlas, (all such confidential or proprietary information being hereinafter collectively referred to as (“Confidential Information”). Customer agrees to retain the Confidential Information in confidence and not to disclose or use it for any purpose whatsoever without the prior written consent of Atlas. Regardless of the term of this Agreement, Customer shall be bound by this obligation until such time as such Confidential Information shall become part of the public domain.
Confidentiality. All information received by each Party as to the operations, equipment, and business of the other shall be deemed confidential and shall not be disclosed to any third party except for the limited and exclusive purpose of Atlas’ use in performing audits as described herein.
Failure to Enforce Not Waiver. Any failure or delay on the part of either Party to exercise any remedy or right under this Agreement shall not operate as a waiver. The failure of either Party to require performance of any of the terms, covenants, or provisions of this Agreement by the other Party shall not constitute a waiver of any of the rights under the Agreement. No forbearance by either Party to exercise any rights or privileges under this Agreement shall be construed as a waiver, but all rights and privileges shall continue in effect as if no forbearance had occurred. No covenant or condition of this Agreement may be waived except by the written consent of the waiving Party. Any such written waiver of any term of this Agreement shall be effective only in the specific instance and for the specific purpose given.
Notice. Any notice provided for under the terms of this Agreement by either Party to the other shall be in writing and may be effected by registered or certified mail, postage prepaid, return receipt requested unless an alternative form of notice of certain events has been specifically authorized herein. Notice to Atlas shall be sufficient if made or address to 4737 Shavano Oak, Suite 103, San Antonio, TX 78249. Notice to Client shall be sufficient if made or addressed to the address contained in the recitals above. Each Party may change the address at which notice may be sent to the Party by giving notice of such change to the other Party in accordance with these provisions.
Parties Bound. Each individual executing this Agreement on behalf of a Party represents that he or she has the legal capacity and authority of that Party to execute contracts and agreements on its behalf. This Agreement shall be binding when executed by both Parties and when the first installment of Price has been paid. All terms and provisions of this Agreement shall inure to the benefit of the Parties, their respective heirs, executors, administrators, personal and/or legal representatives, successors, and assigns, as the case may be.