1. Evolved Mechanical LLC

     TERMS & CONDITIONS of SERVICE

    In this document, “we,” “us,” “our” and other first person plural pronouns refer to Evolved Mechanical LLC, its affiliated companies, and their respective employees and subcontractors, and their respective successors. “You,” “your” and other second person pronouns refer to the customer listed at the top of this document, and any permitted assignee.

    These terms of service govern the performance of services by us, and your rights and obligations in connection with those services. These terms are divided into various categories for different types of services, with the “general” category applicable to all services unless otherwise noted for any particular service. We may revise these terms at any time with respect to services we perform after the effective date of the revision; we shall use reasonable efforts to notify customers with active accounts when revisions have been made, and it will be deemed sufficient to direct you to a web page where the revised terms are available. In general, every type of service we perform is documented by an estimate, proposal or work order, to which these terms attach. The estimate, proposal or work order will indicate the customer, date, equipment in question, nature of the service, pricing, and other pertinent details. That documentation, together with these terms, constitutes the agreement between you and us.

    PART I REPAIR SERVICES

    1. RESPONSE TIME. We try to respond to a call for emergency and other requests for repair services as quickly as possible when you call our designated business phone number. Our personnel do not attend the telephone outside normal business hours and we rely on an answering service to forward messages to us at such times. We will not be liable for delays or failures of the answering service to report calls, and we do not promise to return any calls within a specific period of time. We will not be liable for failures to return calls if you have not provided accurate or intelligible return contact information or if our or your telecommunications systems fail to function properly. We may decline to provide services to you for any reason, and our response to your call may consist of an indication that we have so declined. You acknowledge that under certain conditions such as weather events, holidays and other socially-influenced conditions, service calls may increase beyond the capacity of our personnel to respond quickly to all of them; we will not be liable for delays in responding or reaching your premises due to weather, traffic, scheduling backups or other causes beyond our reasonable control.
    2. SCOPE OF SERVICE. Our repair services are designed to correct faulty plumbing, heating and cooling systems as reported by you. Subject to the following section, upon inspection of the problem our technicians shall provide an estimate of the charges to effect the repair, and shall commence work upon your acceptance of the estimate and payment authorization. Although we try to stock our repair vehicles with tools and parts as reasonably required to effect repairs based on your initial report, we will not be liable for delays in repair due to lack of appropriate parts and tools, but we shall use reasonable efforts to obtain them quickly and shall pursue repair once we have done so.
    3. DIAGNOSTICS. If our service representative cannot immediately identify the cause of your problem, we may require that our representative conduct diagnostic tests before providing an estimate for remedial work. In that case, we shall provide an estimate for your authorization of those diagnostics, at the rates stated on the estimate. We shall not continue to take remedial steps until you have authorized it.
    4. PRICING AND PAYMENT. Pricing for repair services consists of charges based on (i) a fixed charge for sending our technicians to your premises (which may vary depending on time of day or day of the week), plus (ii) our charges for the repair. On our invoice, we will not provide an itemized breakdown of materials and labor for flat-rate work; however, we will provide an itemized list of all materials used to perform work where labor and materials are separately charged, as well as an itemized listing of all systems and materials separately warranted by their manufacturers. Unless otherwise stated in the “notes” or “recommendations” sections of the estimate, payment for our services and any supplied materials, and the services of third parties for whom we invoice, is due upon presentation of our invoice. Past due balances shall bear interest at the lower of one and one-half percent (1½%) per month or the maximum permitted by law. We may also charge up to $50 per item for returned checks. In the event we initiate legal proceedings to collect amounts due and owing under this contract, you shall be liable for our costs of collection, including court costs and the reasonable fees and disbursements of our attorneys.
    5. WARRANTY OF SERVICES. (a) If any system component we have repaired fails by reason of faulty parts we have supplied or workmanship in our services within the relevant period following the completion of our services as set forth in the following subsection, we shall replace those components or re-perform the services without additional charge to you. The limitations and exclusions to this obligation in the “General” part of these terms apply to services performed under this part. If our service is for installation of parts supplied by you, our warranty is for the installation service only.
      • The applicable warranty periods for purposes of the previous subsection are: (i) for drain cleaning, 30 days; (ii) for faucet repairs, 90 days; (iii) for general repairs and installation of parts we supply, 1 year, unless otherwise stated on your invoice.
      • The warranties under this section do not begin until you have paid the total price for the applicable service or item.

    PART II ROUTINE MAINTENANCE AND WARRANTY SERVICES

    1. SCOPE OF SERVICE. (a) The services under this part with respect to maintenance relate to routine maintenance of heating and cooling systems. We shall provide routine scheduled system maintenance services for the equipment specified on our work order for as long as you are current on payments and for as long as you own the equipment. Maintenance includes replacement of filters, cleaning, adjustments and similar activities but excludes repair or replacement of the equipment. We shall perform maintenance services only on a pre-arranged schedule and between the hours of 8:00 am to 4:00 pm, Mondays through Fridays, excluding holidays and other days when our offices are closed (those days and times “Normal Business Hours”). We also may decline to schedule maintenance during periods of peak demand for our services. Routine maintenance consists of one service call per year for each covered system, and your failure to obtain the services, for example by not having someone present to grant access or authorization at the scheduled time or mutually agreed re-scheduled time, will not entitle you to a second service call in a subsequent year.
    2. PRICING AND PAYMENT. (a) Maintenance plans are priced on an annual basis and prorated into monthly installments. You shall pay in monthly advance installments, via valid credit or debit card serviced through a national card-processing provider (e.g. MasterCard® or Visa®), which you must authorize at the time services are first ordered. Payments will be automatically processed and will be recurring each month without further notice to you according to the fee schedule set forth on the estimate or work order, and you hereby authorize us to make those charges. We may prospectively increase pricing or institute new pricing for hourly or per-call service charges, and may change the discount factors and rates applied under one or more of our service plans upon providing notice (i) to the address we have on file for you, (ii) by email notice to the email address we have on file for you, or (iii) by posting the changes on our web site with postal or email notice to you, in all cases at least 30 days in advance. If you notify us that you want to cancel this agreement because of the increased or additional charges, you may do so without liability within 30 days following notice of a price increase, which you may do by postal or email to our current address as shown on our web site. If we do not receive your notice within 30 days following notice of a price increase, you will be deemed to have accepted the changed pricing.
      • It is your responsibility to notify us of any change in your mailing address and any changes to your payment account; a payment refused by your payment account will be treated as a payment default under section 23.
      • Although it is our current policy to include sales and similar taxes in our pricing, if we do not, then we may add to our invoice the amount of taxes, however designated, levied or based on our charges or on this agreement, or on the services rendered or parts supplied pursuant to this agreement.
      • Accounts that are not paid when due will incur a late payment charge of 1.5% per month on the unpaid balance until paid, and we may suspend all benefits under this agreement until such time the past due amount is paid in full; or we may take the other actions permitted to us under section 23.
      • If you cancel maintenance services at a time when we have not yet performed the annual servicing, you will not be liable to make further monthly payments, but we are not obligated to refund the monthly installments you have already paid. If you cancel after we have performed the annual servicing, you will be liable for the entire annual maintenance fee, which will become immediately due at the time you cancel. Under those circumstances, we may charge the payment method you have authorized for maintenance services for that balance, without further authorization from you.
    3. STANDARD OF PERFORMANCE. In addition to the standard of performance applicable to all our services, as stated in the General part of these terms, we shall perform maintenance and warranty services in accordance with the applicable requirements of the relevant equipment manufacturers.
    4. REMEDIES ON DEFAULT. In addition to our other remedies stated in these terms, if you are in default of your obligations under this part of these terms, you will be liable for the full amount of your annual fee for maintenance services for the year in which the default occurred. Under those circumstances, we may charge the payment method you have authorized for maintenance services for that balance, without further authorization from you.

    PART III MAJOR INSTALLATIONS

    1. SCOPE OF SERVICES. (a) This part applies to the purchase and installation of major new plumbing, heating and cooling systems, such as furnaces and boilers, and air conditioning or heat pump systems.
      • We shall provide services under this part only during Normal Business Hours. If you require services outside Normal Business Hours we may impose a charge in accordance with the provisions under the Repair part of these terms. We may also impose a charge for the service call and any diagnostics we perform, regardless of whether it was during Normal Business Hours, if upon inspection by our technicians they reasonably conclude that there was no fault in the equipment for which the call was made. If repairs to equipment or systems other than those covered by this part are necessary, the “Repairs” part of these terms will apply.
    2. PRICING AND PAYMENT. Unless otherwise stated on your proposal or work order, payment terms for major installations are 50% due upon your signing the proposal and the balance no later than our notice to you that the installation is completed. Final payment is due without regard to any final inspection or certification.
    3. INCENTIVE AND REBATE PROGRAMS. You acknowledge that (i) incentive and rebate programs that may apply to your equipment are offered directly by their sponsors to you; (ii) those programs may require you to perform certain activities, such as submit to an energy audit by persons other than us, completing and filing forms, etc.; (iii) reimbursements from those programs may not be paid for weeks or months; and (iv) the terms of those programs may change between the time we submit a proposal or you order services from us and the installation of equipment to which they pertain. You will be responsible for confirming your eligibility and complying with the requirements of any such program. We may provide administrative assistance and information with respect to those programs, but payments to you from them will be made by the sponsors, and not to or by us. The pricing of systems to which these programs may apply is independent of the programs, and you are responsible for the full amount of our charges whether or not you later obtain reimbursement for all or part of them.
    4. WARRANTIES AND MAINTENANCE. (a) The warranty of our services under this part, including our warranty plans described in the next subsection, does not begin until you have paid the full price for the entire installation as provided in section 11.
      • You acknowledge that the major components of the systems we install under this part are commonly covered by the original equipment manufacturer’s (OEM’s) warranty, which typically do not include a warranty of labor. We may offer our own warranty plans, the terms and cost of which are included in our proposal, that relate to the materials and labor needed for the repair or replacement of faulty equipment, for the duration of that plan. Our plans may overlap with OEM warranties for the plan’s duration, but if our plan expires before the OEM warranty does, you will retain your rights under the OEM warranty for its duration.
      • The warranty services under this part do not include repair or replacement of equipment (i) that, in our reasonable judgment, has been subjected to abuse, (ii) for which you have not performed routine maintenance, or (iii) as to which someone other than us has performed diagnostic or repair service. The occurrence of any of these conditions will render the warranties on our initial installation services void.

    PART IV GENERAL

    1. AUTHORIZATION AND ACCEPTANCE. (a) Your signature, or that of another person as your agent, in the signature box indicates, (a) for an estimate, your agreement under these terms and conditions for us or our subcontractors to perform the services indicated (which may be either diagnostic or remedial, as further explained in the following section) at the prices quoted, subject to adjustments to which both you and we consent, and (b) for an invoice, your agreement that (i) if work has been performed, you have accepted the work (subject to your remedies under the applicable warranties), and (ii) whether or not work has been performed (for example, we may require a deposit before performing work), that any payment shown as due is due.
      • If you are a landlord, then you hereby authorize your tenant or any other person lawfully present in the leased premises to act as your agent to authorize us to access your premises and perform services for you, to accept performance of those services, to authorize a method of payment for them, and otherwise exercise any authority you have under this agreement.
    2. SCOPE OF SERVICES. The scope of the specific services we perform is described in the part of these terms applicable to those services. When we provide an estimate, proposal, or work order, we will list all services, major items to be installed (the listing may be generic, e.g. “40 gallon water heater”), and items to be repaired; any item or service not listed will be deemed outside the scope of the services to be provided, and if we agree to provide additional items or services these will be at additional cost and on a schedule separately agreed through a change order, new proposal, or similar documentation. You acknowledge that we do not repair holes, walls, ceilings, plaster and other surfaces, and we do not paint surfaces. We shall perform cleanup of our work to “broom clean” standards, but may offer optional higher-standard cleaning services at additional cost. We do not offer or provide utility services such as gas, water or electricity, and you shall arrange with the applicable utility for any required connections and billing accounts.
    3. CHANGE ORDERS. No alteration to the services we are to perform, or the pricing for services, will be effective unless documented in a written change order or proposal revision that has been signed by both you and us. Electronic communication indicating your or our agreement with a change order will be considered acceptable.
    4. YOUR PREMISES AND PROPERTY. (a) Except with respect to items you have asked us to repair, you affirm that all plumbing, drainage, heating, cooling and electrical systems, and other conditions in your premises that we access for purposes of performing our services, are in good repair and condition. We are not responsible for repairing any defective conditions unless you specifically authorize us to do so and we have agreed to undertake that work. When so authorized and agreed, we will obtain services from third parties for repairs outside our zone of competence, and you will pay for those services as part of our invoice. You shall indemnify us for any expense, loss or damage that we or others incur arising from defective systems or ambient conditions, including among other things: improper or faulty plumbing; rusted or defective pipes; acids in the drain system; lines that are settled or broken; defective roofing, improperly charged systems; faulty air movement; electrical defects; faulty stairs; and illegal conditions.
      • You hereby authorize us to enter the premises where the work is to be performed, including any common areas of multi-family dwellings, for purposes of performing our work. If you are not the occupant of those premises, you shall cause the occupant(s) to permit our access.
      • You shall remove or protect any personal property, inside or outside the premises where repairs are made, including carpets, rugs, antiques, fragile items, shrubs and plantings, and we will not be liable for damaging them. (d) We will not be liable for alterations or damage to curbs, sidewalks, walkways, garages, patios, lawns, shrubs, sprinkler systems, wallpaper, drywall, stucco, tile, cabinets or other appurtenances or improvements to your premises that are the normal or natural consequence of our work, nor will we be responsible for damage to personal or real property or to any improvements to them caused by third parties delivering materials or equipment.

    (e) We will not be liable for any loss or damage to persons or property resulting from our keeping doors or gates open or closed in the course of our work. You shall indemnify us for any claims by your tenants or licensees or any other non-party with respect to the matters referred to in this section 16.

    1. SUBCONTRACTORS. When we determine it advisable, we may obtain services from subcontractors for work outside the scope of our own personnel’s licensing, or as a supplement when our resources are limited. You shall pay for those subcontractors’ services as part of our invoice and we shall ensure that they perform their services in accordance with the requirements of this agreement.
    2. MECHANICS’ LIENS. You acknowledge that: (i) under the state Mechanic’s Lien law any contractor, subcontractor, laborer, supplier or other person who helps to improve your property and is not paid for his/her work or supplies has a right to enforce a claim against your property; (ii) after a court hearing, a court officer could sell your property and use the proceeds of the sale to satisfy the indebtedness; (iii) this can happen even if you have paid your prime contractor in full, but the subcontractors, laborers or suppliers remain unpaid; (iv) although, to preserve their right to file a claim or lien against your property, certain claimants such as subcontractors or material suppliers are required to provide you with a document entitled “Preliminary Notice,” prime contractors (such as us) and laborers for wages do not have to provide this notice. A Preliminary Notice is not itself a lien against your property; its purpose is to notify you of persons who may have a right to file a lien against your property if they are not paid. Generally, the maximum time allowed for filing a claim or lien against your property is 90 days after completion of your project. You acknowledge that you are ultimately liable for unpaid claimants under the Mechanic’s Lien law, but provided that you have paid all charges to us, we shall pay our subcontractors, laborers, suppliers and other claimants entitled to payment from us, and to take such actions as are necessary to remove any mechanics’ liens created by those persons.
    3. STANDARD OF PERFORMANCE. Except to the extent different or additional performance standards apply under other parts of these terms, in the performance of work for you, our personnel shall (i) possess the skill and training appropriate for their respective trades or professions or are under the active supervision of those who do, and (ii) perform their respective services competently in the execution of that work.
    4. CANCELLATION AND TERMINATION. (a) If for any reason you need to cancel services, please notify us immediately as provided in section 28. You acknowledge that it is not always possible to cancel materials that have been ordered. We shall use reasonable efforts to cancel any material orders, but if materials have been ordered, then in addition to the cost of materials that cannot be canceled, you shall pay a 20% cancellation fee. Those costs and fees will be subtracted from any deposit returned, or will be charged to you if the deposit was insufficient.
      • Either you or we may terminate this agreement at any time by giving notice to the other. The consequences of termination, in addition to those listed in section 23 if applicable, are as follows:
      • Subject to the provisions for resolving disputes, all fees for services performed and products delivered (or ordered where their cancellation is not reasonably practicable) become immediately due and payable;
      • If you terminate an annual maintenance plan, section 7(e) applies;
      • If we terminate an annual maintenance plan, the full amount of payments for the year in which termination occurs will become immediately due and payable if the applicable maintenance has been performed. If the maintenance has not been performed, and if we are not terminating for your default, we will cancel charges for the remainder of the plan but will not be obligated to refund payments you have already made;
    5. NO IMPLIED WARRANTIES. The limited warranties for products and services described in various sections of these terms are the only warranties we provide, and your remedies stated in section 23 are your exclusive remedies, except as otherwise required by law. We hereby disclaim all other express or implied warranties, including any warranty of merchantability or fitness for a particular purpose.
    6. DEFAULT AND REMEDIES. (a) You will be deemed in default under this agreement if (i) you fail to make timely payment for any services or products we have provided and you have not made full payment within 5 days of our notice to you of that failure; (ii) a payment method you have previously authorized fails to make payment when due and you have not provided an alternative payment method that pays the amount due within 5 days of our notice to you of the failure of the original payment method; (iii) you fail to perform one or more other obligations under this agreement and have not corrected that failure to our reasonable satisfaction within 10 days after our notice to you of that failure.
      • We will be deemed in default under this agreement if we fail to perform one or more of our obligations under this agreement and we have not corrected that failure to your reasonable satisfaction within 20 days after your notice to us of that failure; except that where correction of the failure requires ordering parts or other actions that cannot reasonably be completed within those 20 days, we shall begin the necessary corrective actions within that time and diligently pursue them as quickly as practicable.
      • If you are in default, then in addition to pursuing claims under section 27 and any other remedy specifically provided in this agreement, we may (i) cease to perform any services under this agreement until the default has been remedied; (ii) terminate the agreement upon notice to you; (iii) retain any deposit you have paid; (iv) charge, if applicable, a late payment fee of 1½% of the unpaid amount due for each month or portion of a month the amount remains unpaid; and (v) charge your account and add to any claim we make the reasonable amount of our costs of collection and pursuing the claim, including among other things the reasonable fees and disbursements of our attorneys and a reasonable allocation of our internal overhead costs.
      • If we are in default, then you may pursue a claim as described in section 27. You may not offset the amount of any claim against, or otherwise withhold, any amounts you otherwise owe to us for services or products or otherwise.
    7. LIMITS OF LIABILITY. (a) Our liability to you for any claim you assert against us will be limited as follows:
      • Where the claim, for example for bodily injury or property damage, is covered by our insurance, to the amount of that insurance as and when paid by the insurer, plus our deductible;
      • In all other cases, to the amount of the fees you have paid for the services or products involved in the claim, to a maximum of $5,000.
      • Notwithstanding subsection (a), we will have no liability for losses you incur for lost profits, loss of use, loss or impairment of credit, increases in your cost of utilities, taxes, other operating costs of your property, or any liability you incur to third parties (including among other things governmental fines and other charges). Our liability is further limited pursuant to section 25(b) and as otherwise stated in these terms.
    8. COMPLIANCE WITH LAWS AND CODES. (a) We shall comply, in the performance of our services, with the governmental and regulatory requirements applicable for the professions we exercise in that performance, for example plumbing codes for plumbing, heating and fire codes for furnace installation, and electrical codes for electrical work.
      • As the owner or owner’s representative, you are responsible for compliance with zoning, historical, and other regulatory programs applicable to your property. Before we commence performing services, you shall inform us of any such applicable requirements, and we may postpone commencement of services if in our judgment you must take further steps to comply with them. We will have no liability for failure of your property or our installations or services to comply with these requirements unless you have notified us of them as provided in section 28 and we have incorporated those requirements into our estimate, work order or proposal.
    9. FORCE MAJEURE. A party (that is, you or we) will not be liable for any failure of performance attributable to acts, events or causes beyond that party’s control to the extent that they wholly or partially prevent performance by that party. The parties acknowledge that circumstances beyond a party’s control may include, among other things, war, riot, rebellion, civil disturbances, unforeseen labor disturbances, power failures, failure of telephone lines and equipment, failure or delays of transportation, flood, storm, fire and earthquake or other acts of nature or any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental authority. The affected provisions and other requirements of this agreement will be suspended during the period of such disability and the affected party will not have any liability to the other on account of the suspended duties other than by reason of breach or nonfulfillment of its obligations in this section. The affected party shall use reasonable efforts to remove its disability as soon as and to the extent reasonably possible and to assist the other party in finding other persons to provide any affected services during the period of disability.
    10. DISPUTE RESOLUTION. As the exclusive means of initiating adversarial proceedings against you to resolve any dispute arising out of this agreement, we may demand that any such dispute be resolved by arbitration administered by JAMS in accordance with its commercial arbitration rules. You hereby consent to any such dispute being so resolved, and acknowledge that if we initiate arbitration you will not be permitted to have the dispute resolved in court. Judgment on any award rendered in any such arbitration may be entered in any court having jurisdiction.
    11. NOTICES.
      • For a notice or other communication under this agreement to be valid, it must, except as stated in clause (v), be in writing and signed by the sending party, and the sending party must use one of the following methods of delivery: (i) personal delivery; (ii) registered or certified mail, in each case postage prepaid and return receipt requested; (iii) nationally or internationally recognized overnight courier, with all fees prepaid; (iv) email; or (v) telephone in emergencies, with prompt confirmation by email.
      • For a notice or other communication under this agreement to be valid, it must be addressed to the receiving party at the one or more addresses (including email addresses and phone number) for the receiving party shown on our intake records or the estimate, work order, or proposal for you, to the address, email address, and phone number shown on our web site for us, or to any other address designated by the receiving party in a notice in accordance with this section.
      • Subject to subsection (d), a valid notice or other communication under this agreement is effective when it is received by the receiving party. A notice or other communication is deemed to have been received as follows:
      • If it is delivered in person or sent by registered or certified mail or by nationally recognized overnight courier, upon receipt as indicated by the date on the signed receipt; and
      • if the receiving party rejects or otherwise refuses to accept it, or if it cannot be delivered because of a change in address for which no notice was given, then upon that rejection, refusal or inability to deliver.
      • If it is sent by email, upon receipt as indicated by the receiving or sending email system;
      • If it is given by telephone under circumstances in which telephone notification is permitted under subsection (a), if the person answering the call identifies him- or herself as the person or representative being notified, and the caller’s and receiver’s records (telephone logs) show the call was received.

    (d) If a notice or other communication is received by us outside Normal Business Hours (as defined in section 6), then the notice is deemed received at the beginning of the next day containing Normal Business Hours. If you are unsure of whether a particular time is within Normal Business Hours, you may call our office for that information.

    1. GOVERNING LAW. The domestic laws of Massachusetts govern all matters arising under this agreement, including all tort claims
    2. ENTIRE AGREEMENT. These terms and the applicable proposal, work order or, if there is neither of the foregoing, the estimate, constitute the entire agreement of the parties relating to its subject matter and supersede all other oral or written agreements or communications relating to it. You acknowledge that your agreements with third parties for financing, payment processing, or other matters, and any actions you take or remedies you pursue under those agreements, do not affect the terms of this agreement or your and our obligations under it.