Terms of Service Agreement

This Terms of Service Agreement (the “Agreement”) is made by and between Heartland Plumbing and Heating LLC, a Wyoming Limited Liability Company (“Heartland”) and the Client set forth in the Work Order, as defined in Section 2 herein, to which this Agreement is attached and/or incorporated by reference (Heartland and the Client each a “Party” and together the “Parties”) with respect to certain services to be provided by Heartland.

1. Services.

Heartland provides plumbing and heating services including installation, repair, maintenance, or inspection of plumbing and heating systems. The labor, materials (including the procurement of special order parts upon request of its clients), solicitations of permits as required by federal, state, and municipal law, etc. which are performed or provided by Heartland’s employees, agents, or subcontractors to its clients are Heartland’s services (the “Services”).

All Services performed by Heartland shall be completed in a workmanlike manner according to standard practices, and in compliance with applicable federal, state, and municipal codes. Heartland’s personnel will be fully qualified for the Services they provide Client, and will be covered by any appropriate licenses and insurance policies required by any federal, state, or local laws.

2. Work Order.

Heartland has provided the Client with a written work order (the “Work Order”) which describes (a) the Services to be provided to the Client; (b) the location or property where such Services shall be provided (the “Premises”); (c) estimated cost for such Services inclusive of reasonably foreseeable labor, materials, and fees for required work permits (the “Estimated Cost”); (d) the schedule and terms, which may include, at the reasonable discretion of Heartland, a non-refundable deposit and/or progress installments, by which full payment of the Estimated Cost must be remitted; and (e) the scheduled start date (the “Scheduled Start Date”) and expected completion date for Heartland’s performance of the Services. The Estimated Cost does not include the cost of materials or items which have been purchased or are to be purchased directly by the Client (the “Client Items”). Client’s signing of the Work Order shall constitute acceptance of the Work Order and of this Agreement.

The Work Order is based on the representations made by the Client to Heartland and/or a visual inspection of the Premises performed by Heartland, and may be amended, at the reasonable discretion of Heartland and subject to written approval by the Client, if unexpected, hidden, or unforeseen conditions (“Unforeseen Conditions”), including undisclosed Site Conditions (see Section 7(vii)), arise prior to completion of Services. Such Unexpected Conditions may include, but are not limited to issues arising from Client’s failure to comply with Section 7 (Client Representations and Obligations).

Further, the Work Order does not include the removal of any dangerous waste materials, such as asbestos, lead paint, or mold found on the Premises during the performance of Services. If dangerous waste materials are encountered, Heartland reserves the right to immediately withdraw its employees, agents and subcontractors until the Premises are made safe. Heartland, upon request of Client, may, at its discretion and for an agreed-upon cost, add the removal of dangerous waste materials as Additional Services pursuant to Section 3.

3. Additional Services.

Upon time-sensitive request of the Client, and/or in the event of exigent circumstances, Heartland may, at its sole discretion, agree to provide Services not included in the Work Order (the “Additional Services”). The Client agrees that this Agreement shall govern the delivery of such Additional Services as if they had been included in the Work Order.

4. Urgent Services.

Heartland’s regular business hours are from 8:30 a.m. to 4:30 p.m., Monday to Friday, excluding federal and state holidays (the “Business Hours”). Any requests by the Client for Services to be performed outside of Business Hours, or requiring immediate attention, may be considered urgent at the sole and absolute discretion of Heartland (“Urgent Services”), and may be subject to an additional fee which Client must agree to pay, prior to Heartland’s performance of Urgent Services.

5. Term and Termination.

This Agreement shall take effect on the date the Work Order is accepted and shall continue until the Services are completed, unless terminated earlier.

Heartland may immediately terminate this Agreement upon written notice if Client fails to agree to a reasonable amendment of the Work Order due to Unforeseen Conditions identified prior to or after commencing the Services that make the contemplated Services impractical or impossible to perform, in which event Client shall compensate Heartland for any Services rendered, materials ordered, and any expenses incurred up to the date of termination, including fees for permitting.

Heartland may, upon written Notice, immediately terminate this Agreement, if Client is in breach of this Agreement, in which event, Client shall pay Heartland the full contract price as specified in the Work Order, including compensation for any materials ordered, and any expenses incurred up to the date of termination, including fees for permitting

If Client terminates this Agreement without cause (i.e., without a material breach by Heartland), Client shall pay Heartland the full contract price as specified in the Work Order including materials ordered, and any expenses incurred up to the date of termination, including fees for permitting. If such termination by Client occurs prior to the Scheduled Start Date, Client shall pay a cancellation fee (the “Cancellation Fee”) equal to the greater of (a) any Deposit collected for the Services pursuant to Section 2; (b) the cost borne by Heartland for the acquisition of any materials and/or special order parts procured for the Services, including permits; or (c) ten percent (10%) of the Estimated Cost.

If Client terminates the Agreement for cause arising from a material breach by Heartland, Client shall pay for all Services rendered, materials ordered, and expenses incurred up to the termination date.

6. Payment.

The Parties agree that Heartland shall be compensated by Client for the Services (“Payment”). Payment shall be due upon invoice, net ten (10) days and may be remitted by cash, check, debit or credit card, certain major mobile payment services (e.g. Venmo, Cash App, etc.), client-initiated ACH credit, wire transfer, or vendor-initiated ACH debit subject to written authorization by the Client. If any payment made by Client to Heartland is rejected by Client’s financial institution, or for any reason is not received by Heartland, Heartland may charge a fifty dollar ($50) fee for each failed payment at its reasonable discretion. Invoices over 30 (thirty) days past due shall be subject to interest accruing from the initial due date at the rate of 1% (one percent) per month, or a flat late fee equal to one hundred dollars ($100), whichever is greater. Client shall bear all costs and expenses, including reasonable attorney’s fees and all other collection expenses, without limitation, incurred by Heartland in connection with the collection of any past due amounts.

Services which are provided under a flat rate are based on standard scheduling and availability, covering predefined Services as outlined in Heartland’s price sheet for the current year (“Price Sheet”). Any Services not predefined in the Price Sheet will be provided subject to the approval of a custom estimate issued to Client.

7. Client Representations and Obligations.

(i) Client shall provide to Heartland, and any of its employees, agents, or subcontractors, access to the Premises at any reasonable time during normal working hours in order to complete the Services.

(ii) Client is shall be responsible for keeping a mutually-agreed-upon schedule for the performance of Services; if Client is unable to keep a scheduled appointment, Client shall notify Heartland at least twenty-four (24) hours in advance or will be liable to Heartland for any cost of time and/or materials incurred by any of its employees, agents or subcontractors due to Client’s cancellation of the scheduled appointment.

(iii) Client shall provide a clean and clear workspace on the Premises (e.g., move any furniture or other obstructions to the extent possible from the work area and, if not possible, cover any furniture or other obstructions), shall render safe any dangerous conditions of which Client is aware, or reasonably should be aware, that could cause personal or property damage, and shall advise Heartland of any such conditions, and Client shall assume complete responsibility for the protection of all landscaping, trees, shrubs, and bedding plants which Client wishes to preserve, as they may become damaged during the performance of Services.

(iv) Client shall procure any Client Items necessary to complete the Services by the Schedule Start Date and shall provide immediate notice to Heartland in the event of delay in procuring any Client Items.

(v) Client understands that Heartland may leave equipment and/or materials at the Premises until the Services are complete, and Client agrees not to use or permit others to use any such equipment or materials or enter the work area and, further, agrees to indemnify Heartland for any and all personal or property damage due to any unauthorized access or use.

(vi) If Client authorizes, whether orally or in writing, Heartland to special order any parts and/or materials to be used to complete the Services, and later decides not to use those parts and/or materials, Client will be charged the full price of the special order parts and/or materials, as reflected in the Work Order.

(vii) Client represents and warrants that: all known dangerous or hazardous site conditions of the Premises, have been or will be disclosed including but not limited to (a) concealed utility lines; (b) presence of lead paint, asbestos, mold and/or other dangerous substances; and (c) presence of hazardous flora or fauna (“Site Conditions”); any plans supplied by Client are adequate for intended purposes; the provided address and legal description of the Premises are correct and adequate for all purposes, including mechanic’s liens; Client shall carry hazard insurance or bear the loss occasioned by hazard; and Client shall not post any notice of non-liability.

8. Warranty.

Heartland warrants that all Services shall be performed in a workmanlike manner. THIS WARRANTY EXPIRES ONE (1) YEAR AFTER COMPLETION, AND IS IN PLACE OF, AND NOT IN ADDITION TO, ANY OTHER EXPRESS OR IMPLIED WARRANTIES OF QUALITY, OR FITNESS FOR HABITATION OR ANY PARTICULAR PURPOSE, AND SUCH IMPLIED WARRANTIES ARE HEREBY DISCLAIMED. This warranty shall be void if Client (a) fails to provide full Payment for the Services; or (b) fails to provide prompt notice of a warranty claim (within thirty (30) days, or, in case of an emergency, as soon as possible) and a reasonable opportunity to correct the problem; or (c) permits any person or company other than Heartland to complete, correct, perform or redo any work identified within the original Services. This Warranty does not cover clogged drains, frozen pipes, or the repair or replacement of any Client Items.

Where Heartland needs to connect new equipment to Client’s existing plumbing or heating system, Heartland does not warrant and will not accept liability for the cost of repairing or replacing parts of Client’s existing system, which subsequently develops faults. In certain situations, Heartland may charge for visits made to the Premises if Client’s system is faulty or has developed a fault after the installation has been conducted. Heartland will not accept liability where Client’s central heating system does not function properly because Client’s water supply becomes inadequate or the water pressure becomes invariable.

9. Indemnification.

The Client hereby agrees to indemnify and hold harmless Heartland and its present and future officers, directors, affiliates, subsidiaries, employees, agents (“Indemnified Parties”) from and against any and all claims, liabilities, losses and damages (or actions in respect thereof) (collectively the “Losses”), directly or indirectly, resulting or in any way related to or arising out of the performance by such Indemnified Person of Services under this Agreement; provided, however, that the Client shall not be responsible under this paragraph for any claims, liabilities, losses, damages, or expenses to the extent that they are finally determined by a court or arbitrator, as the case may be, to result from actions taken by such Indemnified Person that constitute negligence, willful misconduct, or bad faith of any Indemnified Person in connection with performance of Services. The Client further agrees that it will not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential Party to such claim, action or proceeding) unless the Client has given Heartland reasonable prior written notice thereof and obtained an unconditional release of each Indemnified Person from all liability arising therefrom, which unconditional release shall not place any financial or non-financial obligations on any Indemnified Person. The Client acknowledges and agrees that its obligations hereunder shall be in addition to any rights that any Indemnified Person may have at law or otherwise.

10. Limitation of Liability.

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL HEARTLAND BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES, INCLUDING LOST PROFITS, ARISING FROM OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, AND HEARTLAND’S AGGREGATE LIABILITY WILL IN NO EVENT EXCEED THE TOTAL FEES PAID BY CLIENT UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO THE GOODS AND SERVICES FURNISHED TO CLIENT HEREUNDER OR IN CONNECTION HEREWITH. EXCEPT AS PROVIDED HEREIN, HEARTLAND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

11. Independent Contractor.

The Parties agree that Heartland shall at all times be acting and performing as an independent contractor. This Agreement does not give rise to an employer-employee relationship, and Heartland will not be deemed an employee of Client for any purpose whatsoever. Without limiting the foregoing, all income taxes arising from or in connection with professional fees paid by Client to Heartland for the services provided under this Agreement shall be borne by Heartland. Neither Party shall be liable in any way for any relationship, obligation, liability, contract, representation or warranty of the other Party to or with any third party.

12. Assignment.

Neither this Agreement, nor any of the rights, interests or obligations thereunder, shall be assigned by either Party (whether by operation of law or otherwise) without the prior written consent of the other Party. As a partial exception to the foregoing, Heartland shall be entitled to freely assign to a third Party the right to receive Payment pursuant to this Agreement, without prior written consent of the Client.

13. Arbitration.

Any dispute, controversy or claim arising out of or in connection with, or relating to, this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Denver, Colorado. The arbitration shall be administered by the American Arbitration Association (“AAA”) pursuant to its Construction Industry Rules and procedures in effect at the time of the arbitration, except as they may be modified by mutual agreement of the Parties. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration shall be conducted in English, and by one arbitrator. The arbitrator shall be selected in accordance with the rules promulgated by AAA, unless the Parties mutually agree otherwise. The arbitral award shall be in writing, state the reasons for the award, and be final and binding on the Parties. The award may include an award of costs, including reasonable attorneys’ fees and disbursements to the prevailing party. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant Party or its assets.

14. Governing Law and Jurisdiction.

This Agreement shall be governed by and construed in accordance with the laws of the State of Wyoming. Subject to the arbitration provision contained in this Agreement, the forum for any legal action undertaken in reference to this Agreement shall be a court of competent jurisdiction in Park County, Wyoming, and by execution and delivery of this Agreement, each of the Parties hereto accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts.

15. Notices.

Any notices under this Agreement will be sent by certified or registered mail, return receipt requested, or by email (provided that the sender received electronic confirmation of receipt by recipient) to the address specified below or such other address as the Party specifies in writing. Such notice will be effective upon being sent as specified in this Section.

All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, (b) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed, (c) mailed by reputable overnight courier and receipted for by the party to whom said notice or other communication shall have been directed (d) sent by email, with confirmation by PKI, return email, return read receipt, or other tracking process that such email has been received.

16. Modifications and Amendments.

Other than mutually-agreed upon Additional or Urgent Services, the terms and provisions of this Agreement may be modified or amended only by written agreement executed by the Parties hereto.

17. Force Majeure.

Heartland shall not be liable for any failure or delay in performance of its obligations under these Terms & Conditions arising out of, or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation: acts of God; earthquakes; fires; floods; accidents; governmental actions; wars; civil or military disturbances; acts of terrorism; sabotage; labor disputes; strikes; epidemics; pandemics; riots; power failures; computer failure; any such circumstances beyond its reasonable control as may cause interruption, loss or malfunction of utility, transportation, computer (hardware or software) or telephone communication service; or inability to obtain labor, material, equipment or transportation; provided, however, that in the event of a failure or delay, Heartland shall use its best efforts to ameliorate the effects of any such failure or delay.

18. No Waiver.

The failure of a Party to seek redress for violation, or to insist on strict performance, of any covenant or condition of this Agreement shall not prevent a subsequent act which would have constituted a violation from having the effect of an original violation.

19. Severability.

Each provision of this Agreement shall be considered separable and if for any reason any provision or provisions of this Agreement, or the application of such provision to any Party or circumstance, shall be held invalid or unenforceable in any jurisdiction, such provision or provisions shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without invalidating the remaining provisions hereof, or the application of the affected provision to Persons or circumstances other than those to which it was held invalid or unenforceable, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

20. Entire Agreement.

This Agreement and the Work Order embody the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement will affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.

21. Understanding of Agreement.

The Client states that the Client has had a reasonable period of time sufficient to study, understand, and consider this Agreement, that the Client has had an opportunity to consult with counsel of the Client’s choice, that the Client has read this Agreement and understands all of its terms, that the Client is entering into and signing this Agreement knowingly and voluntarily, and that in doing so, the Client is not relying upon any statements or representations by Heartland or its, employees, representatives or agents not contained in this Agreement.