Terms and Conditions of Sale

  1. Scope of Terms and Conditions. The Terms and Conditions of product sales and service projects are limited to those contained herein. Any additional or different terms or conditions in any form delivered by you (“Customer”) are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given. By accepting delivery of the products or by engaging T.F. O’Brien & Co., Inc. (“Company”) to provide product(s) or perform any services, Customer agrees to be bound by and accepts these Terms and Conditions unless Customer and Company have signed a separate agreement, in which case, in the event of conflict, the separate agreement will govern to the extent not consistent with these terms and conditions.  These Terms and Conditions constitute a binding contract between Customer and Company and are referred to herein as either “Terms and Conditions” or this “Agreement.” Customer accepts these Terms and Conditions by making a purchase from or placing an order with Company or engaging Company to perform any services.  Any Conditional Sales Contract, Service Plan Agreement, or other contract between Customer and Company are made a part of the Agreement and these Terms and Conditions are made a part of any Conditional Sales Contract, Service Plan Agreement, or other contract between Customer and Company.  These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on Company’s website at the time Customer signs the Conditional Sales Contract will govern, unless otherwise agreed in writing by Company and Customer.  All sales are subject to these Terms and Condition of Sale and are final.


  1. Payment Terms. Customer shall pay Company according to the terms contained within any Conditional Sales Contract, Service Plan Agreement, or other contract between Customer and Company. Final payment pursuant to a Conditional Sales Contract shall be due after the work described in the Conditional Sales Contract is substantially completed.


  1. Cancellation by Customer and Notice of Cancellation. In the event that a Conditional Sales Contract is executed between the Customer and Company, the following notice shall apply and a copy of the Conditional Sales Contract and Cancellation Form shall be provided to the Customer at the time of contract.  NOTICE: “YOU, THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION.  SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT.”


  1. Cancellation by Company. In the event that work to be performed under this Agreement is subject to a Conditional Sales Contract, before the work has begun, the Company has the right to cancel the Agreement without obligation by sending Customer a notice by registered mail, return receipt requested, and returning Customer’s deposit in full.


  1. Zoning and Permits. Customer agrees to timely furnish all information necessary to secure plans and permits for the work called for under this Agreement, and Customer warrants the work contracted for to be in compliance with applicable zoning, classification and building codes. Any costs for permits are not included in the contract price and if required by lawful authorities to bring the work into compliance with applicable code, such permits may be obtained at an additional cost to the Customer. Company assumes no responsibility for violation of zoning rules/laws.


  1. Change Orders. During the progress of the work under this Agreement, if Customer should order extra work not specified in the Agreement, Company may require such extra work to be considered an agreement separate and aside from this Agreement and may require payment for said extra work in advance.


  1. Work Schedule. Work shall be completed within a reasonable time. Performance of this Agreement is subject to labor strikes, fires, acts of war or terrorism, acts of God, adverse weather conditions not reasonably anticipated, unusual delays in transportation, Company’s ability to obtain materials, and/or any cause beyond Company’s control.


  1. Should Company be unable to obtain any material(s) specified in the Agreement or any Change Order, Company shall have the right at its sole discretion to substitute comparable materials and such substitution shall not affect the Contract Price.


  1. Excess Materials. Extra materials left over upon completion shall be deemed Company’s property, and Company may enter upon the Property’s premises to remove excess material(s) at all reasonable hours.


  1. Supervision Responsibility. Company shall supervise and direct the work at Customer’s Property, using reasonable skill and attention. Company shall be solely responsible for the construction means, methods, technique, sequences, and procedures for all work performed at Customer’s Property pursuant to this Agreement. Customer shall not interfere with Company’s work forces or Company’s subcontractors.


  1. Work Site Conditions. In regard to plumbing, it shall be the responsibility of Customer to provide and maintain an adequate source of water supply.  In regard to wiring, it shall be the responsibility of Customer to provide and maintain the proper and adequate electric service supply.  Customer will provide access during normal business hours, or as necessary for emergency service.  Company will be allowed to start and stop equipment as necessary to perform required service.


  1. Limited Warranty. Company shall provide Customer with a limited warranty on service and labor for the duration set forth in any Conditional Sales Contract, Service Plan Agreement, or other contract between Customer and Company, beginning on the date of completion of services against defects in the quality of workmanship and/or materials (“Warranty Period”). Company shall not be liable during or following the Warranty Period for any: (a) damage due to ordinary wear and tear or abusive use; (b) damage due to use of the equipment beyond the design temperatures (cooling set below 70°F, for instance); (c) defects that are the result of characteristics common to the materials used; (d) loss, injury or damages caused in any way by the weather elements; (e) conditions resulting from condensation on, or expansion or contraction or, any materials; (f) any water leak, blockage, freezing, or other malfunction of condensate or drain lines; and/or (g) air leaks arising from structural deficiencies within existing supply/return ducts or transitions. If Customer opts for a Warranty Period exceeding two (2) years, Customer agrees to maintain yearly Service Plan Agreements with Company for the entire duration of the Warranty Period; Company shall not be liable for warranty repairs during the Warranty Period in the absence of such yearly service agreement(s). Customer is responsible to pay $99 fee to transfer existing warranty to new customer within 90 days of closing. Customer is responsible for paying equipment manufacturer for any transfer of equipment warranty.  Company is not responsible for any warranties provided by the manufacturer.  Company makes no warranty to Customer regarding materials and/or equipment installed (other than a warranty of title), and Company authorizes no third person or party to assume any warranty obligation or liability on Company’s behalf. The only warranties applicable to the materials and/or equipment installed are those, if any, extended by the respective manufacturer that shall furnish to Buyer any and all applicable warranty documents. Company hereby assigns to Buyer, without recourse, any applicable warranties extended to Company. Such assignment shall constitute Company’s sole obligation and Buyer’s sole exclusive remedy from Company with regard to defective materials and/or equipment installed. This limited warranty is in lieu of all other warranties, statutory or otherwise, express or implied, all representations made by Company, and all other obligations or liabilities respective of the Services provided at the Property. Company disclaims all other warranties, express or implied, including without limitation any implied warranty of workmanlike construction, implied warranty of habitability, implied warranty of fitness for a particular purpose or use, and/or implied warranty of merchantability. Under no circumstances shall Company be liable to Customer for loss of time, loss of use, inconvenience, or any other incidental or consequential damages that may arise from this Agreement. Unauthorized repairs or attempted repairs shall void this warranty entirely.  All warranty work will be performed during regular business hours, Monday through Friday, 8:00 AM to 5:00 PM, excluding major holidays.


  1. Design Conditions. All equipment is designed according to the Manual J standard design temperatures for the county of installation. Company is not responsible for cooling/heating beyond the Manual J standard design temperatures, high humidity levels, system reaching dew point, ductwork sweating/producing condensate due to home infiltration rates or any other reason. R-values, structural tightness, ductwork conditions, home infiltration, leakage of ductwork, building materials and any other factor in the load calculation will be determined by the information the Customer provides to Company upon initial consultation, Company is not responsible for any problems incurred due to incorrect information provided by Customer at the time of consultation and load calculation. If Customer does not authorize Company to conduct its own testing to determine load calculations, and all insulation values, Company shall size the new HVAC system based on the size of the existing HVAC system. In such case, Company shall not be responsible for problems caused by over sizing (including without limitation short cycling, humidity control, and mold growth) or under sizing (including without limitation inability to heat or cool within the Manual J standard design temperatures).


  1. Performance or Condition of Existing Equipment. Company is not responsible for the performance, functionality, or compatibility of existing equipment, ductwork, duct board, controls, or other equipment/materials that is not replaced during a job installation and that Customer agrees to keep in place. In the event that the system fails to operate properly, the Warranty service will only cover the newly installed equipment, controls, or materials, as well as our workmanship. In the event that an existing piece of equipment prevents the proper start up or operation of the new equipment or system, Customer assumes all responsibility for any additional service charges that may be incurred.


  1. Service Plan Agreements. No Service Plan Agreement entered into between Company and Customer shall be effective until all covered pieces of equipment are in proper operating condition.  Company shall inspect and report to the customer any malfunctions and defects and estimated costs to bring unit(s) up to standard prior to the start date of any Service Plan Agreement.  If Customer, for any reason, declines to have any piece of equipment brought up to operating standards, that piece of equipment will be excluded from the Service Plan Agreement and the price adjusted accordingly.  All restoration costs shall be the responsibility of the Customer.  Repair, replacement, and emergency service pursuant to any Service Plan Agreement provisions apply only to the functional internal components and parts of equipment set forth therein.  Repair and replacement of non-maintainable portions such as ductwork, furnace heat exchangers, shell and tube heat exchangers, all diffusers, cabinetry, inter-connecting piping, main power service and electrical distribution system, valve bodies, coils, pipe insulation, glycol, storage tanks, piping systems, structural supports, etc. are excluded.  Any repairs or services resulting from power failures, freezing, roof leaks through curbs, flashing or equipment, or air side corrosion are specifically excluded from this Agreement.


  1. Existing Line Set. Company is not responsible for any problems with heating or cooling due to the existing line set, which may require repair and replacement for an additional cost to the Customer in the event Company is unable to pull a 500 micron vacuum on an existing line set. Should Customer reject Company’s recommendation to replace an existing line set, Company’s limited warranty is voided.


  1. Existing Gas Pipe. Company is not responsible for the condition of any existing gas pipe that is not readily accessible. Customer is responsible for any additional costs incurred if pressure testing is required to identify leaks and necessary repairs.


  1. Paint, Patchwork, and Repairs. Company is not responsible for any painting, patchwork, or repair work that may be required following repair, modification, or installation work.


  1. Personal Property. Company is not responsible for damage to Customer’s personal property left in or near the project area.


  1. Existing Attic Access Stairs. In the event Customer’s existing stairs cannot be safely utilized for the removal and installation of equipment, an alternate method or access may be required. Company is not responsible for (a) the replacement or repair of attic steps or stairs that must be removed to complete removal or installation work; and/or (b) any property damage resulting from the removal of the attic steps or stairs.


  1. Company shall not be responsible for any claims, damages, actions, costs, or other liabilities, whether direct or indirect, that may be caused by, resulting from, or relating to, mold. The discovery and/or removal or any mold or any hazardous materials is excluded from the scope of Company’s work, and Company reserves the right to stop work until such mold or hazardous materials are removed.


  1. It is understood that Company is not responsible for any detection or removal of asbestos material.


  1. Insurance and Waiver of Subrogation. Customer shall maintain property insurance upon the entire structure including all work to be performed pursuant to this Agreement to the full insurable value thereof. This insurance shall inure against the perils of fire, theft, extended coverage, vandalism, and malicious mischief. Customer and Company waive all rights against each other for damages caused by insured perils whether or not such damage is caused by the fault or negligence of any party hereto


  1. Customer shall indemnify, defend, and hold harmless Company and its respective directors, officers, employees, agents, sureties, subcontractors, and suppliers from and against any and all losses, costs, expenses, damages, injuries, claims, demands, obligations, liabilities, judgments, fines, penalties, interest and causes of action, including without limitation administrative and legal costs and reasonable attorney’s fees, involving the following: (a) injury or death to any person, or damage to or destruction of any property (including loss of use thereof), except to the extent caused by the sole negligence or intentional misconduct of Company; and (b) any failure of the Customer to comply with the requirements of the Agreement.


  1. Risk of Loss. Risk of loss shall pass to the Customer upon delivery of materials and equipment to Customer’s Property. Company shall not be responsible for any loss due to fire, water, freeze ups, mishandling, service by unauthorized persons, theft, vandalism, and/or malicious mischief once delivered to Customer’s Property. Customer shall assume all responsibility for any such loss and Customer shall maintain insurance coverage to protect against such loss and is to deliver to Company a fire insurance policy covering the property for the benefit of the Company.


  1. Should any part of this Agreement be adjudged to be void, unenforceable, or contrary to public policy, only such void or unenforceable portion shall be stricken and eliminated hereof while the other portions remain valid and enforceable.


  1. If Customer fails to perform any of Customer’s obligations herein or if Company, in good faith, believes that the prospect of payment or performance to be impaired, Company may upon seven (7) days written notice to Customer terminate this Agreement while retaining all mechanic’s lien rights as well as right to payment for the full amount of work performed plus reasonable overhead and profit, interest, attorneys’ fees, and other charges due and unpaid.


  1. If amounts owing under this Agreement are not paid within thirty (30) days, Customer agrees to pay a late charge on any outstanding balance at two per cent (2%) per month or twenty-four per cent (24%) per annum on the unpaid amount calculated from the date payment was due. Customer will be deemed to have accepted Company’s performance as complete under this Agreement unless Customer notified Company in writing otherwise within thirty (30) days of substantial completion. Should Company retain the assistance of a third party, including without limitation an attorney, to assist with collection of unpaid amounts due and owing, Customer agrees to pay Company’s costs associated therewith including without limitation reasonable attorneys’ fees, court costs, and interest at the maximum legal rate.


  1. Lien Notice. Any contractor, subcontractor, or materialman who provides home improvement goods or services pursuant to your home improvement contract and who is not paid may have a valid legal claim against your property known as a mechanic’s lien. Any mechanic’s lien filed against your property may be discharged. Payment of the agreed-upon price under the home improvement contract prior to filing of a mechanic’s lien may invalidate such lien. The owner may contact an attorney to determine his rights to discharge a mechanic’s lien.


  1. Deposits. In the event progress payments are required pursuant to this Agreement, Company is legally required to deposit all payments received prior to completion in accordance with subdivision four of section seventy-one-a of the lien law and that, in lieu of such deposit, the home improvement contractor may post a bond, contract of indemnity or irrevocable letter of credit with the owner guaranteeing the return or proper application of such payments to the purposes of the contract.  All deposits are being held at _____________________________.


  1. Remedies of Company. Any property installed pursuant to this Agreement is to remain at the installation address and maintained by the Customer in good order and repair, at his own expense.  If Customer fails to make any payments, or shall become insolvent, or if a receiver for Customer’s properties appointed by any Court, or if proceedings in bankruptcy or in reorganization are instituted by or against the Customer, or if the Customer shall sell, assign, or remove the equipment or any part thereof or interest therein, or if the attachment, writ, of other process shall be levied against the property, then in any of the aforesaid events, all notes and sums of money shall become due and payable and in the case of default, Company shall have the right to take immediate possession of the property wherever found, without further notice or demand and remove, sell, and dispose of it or any part thereof and the Customer shall be responsible for any counsel fees, expenses and damages in connection therewith or with respect to any breach of the other conditions hereof.  Any waiver or extension by the Company with respect to any matter shall not be considered as a waiver of the Terms and Conditions or the Agreement.  The remedies contained herein shall be cumulative and not exclusive.


  1. Limitation of Company’s Liability. Company’s liability is limited to repair or replacement at its option and such shall be Customer’s sole remedy.  Under no circumstances will Company be responsible for loss of use, loss of profits, increased operating or maintenance expenses, claims of Customer tenants or clients, or any special, indirect, consequential, or speculative damages.  Company will not be held liable for the operation of the equipment, nor for injuries to persons, or damage to property except those directly due to the negligent acts or omissions of its employees.  Company shall not be liable for any expense incurred in removing, replacing, or refinishing any part of the building structure necessary relating to work performed under this Agreement.  Company shall not be liable for any loss by reason of strikes, labor issues, delays in transportation, delays caused by priority or preference rating, or orders or regulations established by any government or authority, or in unusual delays in procuring supplies, or for any other cause beyond its reasonable control.


  1. Forum Selection and Choice of Law. In the event that Customer breaches all or any portions of the Terms and Conditions of Sale and/or fails to remedy the breach before the expiration of any cure period offered by the Company, Customer shall be liable for all of the Company’s costs and expenses (including, without limitation, attorneys’ fees, court costs, process server fees, and all related disbursements) incurred by the Company to enforce the Company’s rights.  Any action arising out of a breach of the Terms and Condition of Sale shall be brought exclusively in the Supreme Court of the State of New York, County of Nassau, and the Parties hereby consent to the jurisdiction of such Court for that purpose, agree that it is a convenient forum, and unconditionally waive all rights to make any argument to the Court based on the doctrine of forum non conveniens, removal, or any similar doctrine.  The Terms and Conditions of Sale shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice of law principles.


  1. Entire Agreement. This Agreement constitutes the entire agreement between Customer and Company. No agreements, representations, or warranties other than those specifically set forth herein shall be binding on any of the parties unless set forth in writing and signed by both parties.