New Sales Terms & Conditions

Exhibit A
Terms and Conditions

Acceptance of Terms and Conditions: These Terms and Conditions (“Terms and Conditions”) govern the purchase by the customer named in the Agreement (“Customer”) from [INSERT CONTRACTOR LEGAL NAME] (“PowerChampions”) of the products and services described in the Agreement (collectively, the “Work”) and shall supersede any terms and conditions in any documents provided by Customer. Any offer by PowerChampions to provide the Work is expressly conditioned upon Customer’s acceptance of these Terms and Conditions, and PowerChampions expressly rejects any terms or conditions provided or posted by Customer, at any time and in any manner, in relation to the Work.

Price and Payment: The price for the Work is set forth in the Agreement. Payments are due within fifteen (15) days from the date of the invoice. Late payments will incur interest at the lesser of (a) the rate of 1.5% per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly, until paid in full. Customer shall reimburse PowerChampions for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees, costs, and expenses. If Customer disputes any portion of the invoice, Customer shall notify PowerChampions in writing of the basis of the dispute within five (5) days of receipt of the invoice. Amounts not disputed within five (5) days of receipt are deemed accepted. Customer shall pay all undisputed amounts when due. Payment of the invoice shall constitute full and final acceptance by Customer of the Work performed and delivered by PowerChampions that is included in the invoice. All payments are nonrefundable. Payments shall be made as instructed on the invoice. PowerChampions reserves the right to suspend the Work without liability if any amount not disputed in good faith is not paid when due

Changes: Any modification to the cost, materials, work to be performed or estimated completion date much be in writing and signed by the Customer and PowerChampions. During the progress of the Work, if Customer should order extra work not specified in the Agreement, Contractor may require an amended or additional Agreement and may require payment for said extra work in advance. If completion of the Work is delayed or stopped by Customer or any third party, for reasons over which PowerChampions has no control, payment to PowerChampions must be made for all Work provided up to the date of delay or work stoppage. Any unpaid portion will be subject to these Terms and Conditions.

Work Schedule: Unless otherwise specified, all Work shall be performed during normal business hours. Because PowerChampions has no control over equipment availability and delivery, all start and completion dates are estimates only.

Equipment Warranty: All warranties on goods sold, or parts provided, installed or used, whether as an initial sale or incident to a repair, are those of the manufacturer and not PowerChampions. To the extent permitted, PowerChampions assigns to Customer, any rights of PowerChampions under those warranties.

Workmanship Warranty: PowerChampions warrants that the installation of the equipment set forth in the Agreement shall be done in a professional and workmanlike manner (the “Workmanship Warranty”). Customer must bring any claim for breach of the Workmanship Warranty within one (1) year after the time of initial performance of the Work. As Customer’s sole and exclusive remedy, and PowerChampions’ entire liability for any breach of the Workmanship Warranty, PowerChampions shall use commercially reasonable efforts to correct such warranty failure at its sole expense and at its sole option, by promptly: (a) repairing, replacing or re-performing the non-conforming Work; or (b) refunding to Customer any portion of the purchase price paid by Customer under the Agreement and canceling any further portions due for non-conforming Work. PowerChampions shall have no liability for any damage associated with or arising out of work done by a third party, normal wear and tear, fires, floods, acts of God, improper or abusive use or other circumstances outside of PowerChampions’ control.

DISCLAIMER: EXCEPT FOR THE WORKMANSHIP WARRANTY, POWERCHAMPIONS SPECIFICALLY DISCLAIMS ANY OTHER EXPRESS OR IMPLIED STANDARDS, GUARANTEES OR WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, FITNESS FOR USE, PERFORMANCE AND ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR USE. This disclaimer by PowerChampions in no way affects the terms of any manufacturer's or other third party warranties. Notwithstanding any assistance that PowerChampions may provide, it remains the Customer's responsibility to make sure rebate applications and warranty registrations are properly and timely submitted.

Limitation of Liability: PowerChampions shall not be liable for operation or failure of the equipment, its components, or any other part of the system, nor for injury to person or damage to property, except to the extent such injury or damage to property is caused by the grossly negligent acts of PowerChampions, and only to the proportionate extent attributable to PowerChampions’ gross negligence. WITHOUT LIMITING THE FOREGOING, POWERCHAMPIONS SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST TIME, LOST USE, LOST RENT, LOST PROFITS, LOST SALES, LOST GOODWILL OR BUSINESS REPUTATION OR DAMAGES TO PROPERTY) ARISING FROM TRANSACTIONS BETWEEN CUSTOMER AND POWERCHAMPIONS EVEN IF POWERCHAMPIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL POWERCHAMPIONS’ LIABILITY TO CUSTOMER FOR ANY DAMAGES ARISING OUT OF THE AGREEMENT (INCLUDING THESE TERMS AND CONDITIONS) OR THE WORK EXCEED THE PURCHASE PRICE PAID BY CUSTOMER TO POWERCHAMPIONS FOR SUCH WORK. CUSTOMER ACKNOWLEDGES AND AGREES THAT POWERCHAMPIONS IS NOT THE MANUFACTURER OF THE EQUIPMENT AND SYSTEMS.

Title; Risk of Loss: Until final payment is made, PowerChampions will retain title to all materials and equipment and reserves all lien rights in accordance with applicable state law. Risk of loss shall pass to Customer upon delivery of materials and equipment to Customer’s premises. PowerChampions shall not be responsible for any loss due to fire, theft, vandalism, and/or malicious mischief once delivered to Customer’s premises. Customer shall assume all responsibility for any such loss and Customer shall maintain insurance coverage to protect against such loss.

Termination: Customer and PowerChampions may terminate this Agreement if the other party: (a) becomes insolvent; (b) institutes or has instituted proceedings (voluntarily or involuntarily) against it in bankruptcy or under any other insolvency law; or (c) makes an assignment for the benefit of its creditors.

Arbitration: In the event of any dispute, controversy or claim arising out of or relating to the Agreement (including these Terms and Conditions) or the Work (collectively “Claims”), Customer and PowerChampions shall first attempt to resolve any such Claims by direct negotiation of the principals of each of the parties or a designee thereof. If direct negotiation fails to result in a resolution of such Claim, Customer and PowerChampions agree that mediation shall be a condition precedent to any further dispute resolution proceeding. Any Claims not resolved by mediation shall be resolved through binding arbitration according to the latest Construction Industry Arbitration Rules of the American Arbitration Association. IN SO AGREEING, THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO A JURY TRIAL, IF ANY, ON THESE ISSUES AND FURTHER AGREE THAT THE AWARD OF THE ARBITRATOR SHALL BE FINAL AND BINDING UPON THEM AS THOUGH RENDERED BY A COURT OF LAW AND SHALL BE ENFORCEABLE IN ANY COURT HAVING JURISDICTION OVER THE SAME. The prevailing party in any arbitration shall be entitled to recover its reasonable attorneys’ fees as part of the arbitration award. Any such mediation or arbitration shall be conducted in [Columbia, STATE], or in such other location as the parties may mutually agree. CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY MEDIATION OR ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS ONLY, AND CUSTOMER EXPRESSLY WAIVES ANY RIGHT TO PARTICIPATE IN ANY CLASS ACTION.

Miscellaneous: This Agreement may be assigned by PowerChampions without notice to Customer. PowerChampions may subcontract any work to be performed pursuant to the Agreement to third parties without the Customer’s consent to the fullest extent permitted by applicable law. The Agreement shall be governed by the laws of the State in which the Works is performed, without giving effect to the conflicts of law provisions of such State. Any waiver by a party of any rights or obligations under this Agreement must be in writing and signed by such party, and any such waiver shall not apply to any subsequent rights or obligations. If any provision of the Agreement (including these Terms and Conditions) is held to be invalid or unenforceable, the other provisions shall not be affected. PowerChampions shall not be liable for extraordinary events beyond its control, such as a war, strike, riot, crime, or an event that can be described as an act of God. PowerChampions, its employees, subcontractors, and agents shall at all times be independent contractors, and shall not be deemed employees or agents of Customer. Neither party shall have the express or implied right to bind the other party. The Agreement (which incorporates these Terms and Conditions) constitute the entire agreement between the parties relating to the Work. Any amendment to the Agreement (including these Terms and Conditions) must be in writing and signed by PowerChampions.