TERMS AND CONDITIONS
1.DEFINITIONS. “Customer” means the person or entity identified as such on the first page of this agreement, including any representative, agent, officer or employee thereof. “Equipment” means any one or more of the items identified as such on the first page of this agreement, and shall include any accessories, attachments or other similar items delivered to Customer, such as, but not limited to, generators, transfer switches, electric cords, gas or propane regulators, liquid fuel tanks, nozzles, and other similar items.”Capital Power Systems” means its partners, company, shareholders, subsidiaries, & other affiliated companies identified on the front page from which the Customer has purchased the Equipment. “Store Location” means the Capital Power Systems retail location from where the Customer purchased the Equipment.
- INDEMNIFICATION. CUSTOMER AGREES THAT CAPITAL POWER SYSTEMS HAS NO CONTROL OVER THE USE OF SOLD EQUIPMENT BY CUSTOMER. CUSTOMER AGREES TO INDEMNIFY AND HOLD CAPITAL POWER SYSTEMS HARMLESS FROM AND AGAINST ALL AND ANY DIRECT OR INDIRECT LIABILITIES, CLAIMS, OBLIGATIONS, OMISSIONS, DEFICIENCIES, DEMANDS, SUITS, ACTIONS, CAUSES OF ACTION, PROCEEDINGS, JUDGMENTS, ASSESSMENTS, FINES, DECREES, DAMAGES, COSTS OR EXPENSES OF ANY KIND, BY CAPITAL POWER SYSTEMS OF ANY PERSON, ENTITY, PARTY, OR PARTIES. SUCH INDEMNIFICATION EXTENDS TO ALL LOSSES, INJURY OR DAMAGE TO PERSONAL PROPERTY ARISING OUT OF THE CUSTOMER’S POSSESSION, USE, MAINTENANCE, OR RETURN OF SOLD EQUIPMENT. THIS INDEMNIFICATIONINCLUDESLE- GAL COSTS INCURRED IN DEFENSE OF SUCH EQUIPMENTCLAIMS. THIS INDEMNITY PROVISION ALSO APPLIES TO ANY CLAIMS ASSERTED AGAINST CAPITAL POWER SYSTEMS BASED UPON STRICT OR PRODUCT LIABILITY CAUSES OF ACTION.
- WAIVER: CUSTOMER WAIVES, RELEASES, AND RENOUNCES ALL CLAIMS, RIGHTS, AND REMEDIES AGAINST CAPITAL POWER SYSTEMS IN TORT, CONTRACT, OR OTHERWISE ARISING OUT OF, OR IN CONNECTION WITH, THE USE, OPERATION, POSSESSION, ASSEMBLY, DISASSEMBLY, OR MAINTENANCE OF THE SOLD EQUIPMENT- FOR ANY DIRECT OR INDIRECT CLAIMS FOR PERSONAL INJURY, DEATH, LOSS OF USE,REVENUE OR PROFIT FROM THE SOLD EQUIPMENT;, ANY CLAIM OF CONTRIBUTION OR INDEMNITY AGAINST CAPITAL POWER SYSTEMS; OR ANY OTHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS WAIVER INCLUDES ANY CLAIM OR CAUSE OF ACTION BASED IN WHOLE OR IN PART UPON CAPITAL POWER’S OWN NEGLIGENCE EXCEPT FOR GROSS NEGLIGENCE OR INTENTIONAL TORTS AND STRICT OR PRODUCT LIABILITY CAUSES OF ACTION. CUSTOMER AGREES THAT ALL ACCIDENTS WILL BE REPORTED IMMEDIATELY TO CAPITAL POWER SYSTEMS AND CUSTOMER SHALL NOT SETTLE ANY DISPUTE WITHOUT CAPITAL POWER APPROVAL
- USE OF EQUIPMENT. Customer will not use or allow anyone to use the Equipment for an illegal purpose or in an illegal manner; without a license, if required, under any applicable law; or who is not qualified to operate the Equipment. Customer agrees, at Customer’s sole expense, to comply with all applicable municipal, state, and federal laws, ordinances, and regulations that may apply to the use of the Equipment. Customer agrees to routinely and timely check filters, oil, and fluid levels, and to routinely and timely clean and visually inspect the equipment. It is customers’ responsibility to maintain proper fluid levels in all batteries. Capital Power Systems is not responsible for blown fuses. Generators that are running over time will need oil checked on a daily basis and oil must be added as needed. Customer acknowledges that Capital Power Systems has no responsibility to inspect the Equipment while it is in Customer’s possession. Customer is responsible for fuel used and for any environmental risk, including proper disposal of any waste products.
- MALFUNCTIONING EQUIPMENT. Should the Equipment become unsafe, malfunction or require repair, Customer will immediately cease using such Equipment and immediately notify Capital Power Systems and/or an Authorized dealer. Capital Power Systems has no obligation to replace equipment rendered inoperable by misuse, abuse or neglect.
- REASONABLE WEAR AND TEAR. Reasonable wear and tear of the Equipment shall mean only the normal deterioration of the Equipment caused by ordinary and reasonable use on a normal basis. The following shall “not” be deemed reasonable wear and tear (a) damage resulting from lack of lubrication or maintenance of necessary oil and water; and (b) damage resulting from any collision, overturning, or improper operation, including overloading or exceeding the rated capacity of the Equipment. It is customer’s responsibility to service the Equipment and to perform preventive maintenance suggested in the manufacturer’s operation and maintenance manual.
- DEPOSIT. Customer agrees that any deposit and the signed contract shall be deemed to be a guaranty by Customer of the full and complete performance of each and all of the terms, covenants, and agreements to be performed by Customer hereunder. In the event of any breach by Customer thereof said deposit will be credited
against any damages, costs or expenses incurred by Capital Power Systems as a result of such breach. In addition, if the contract for any reason is canceled by customer there will be a 10% restocking fee on the total invoice. Custom ordered equipment is nonrefundable and customer agrees to pay all expenses plus 20% service fee for work or material that has been ordered.
- PAYMENT. All sales will require 50% of the funds required for the project’s completion as a down payment;25% of the funds required for the project’s completion will be due on delivery of the equipment; and the remaining 25% of the funds required for the project’s completion will be due upon completion of the project. Any work requested or required that is not included on the estimate will be billed at the rate of $125 per hour plus material costs and a 20% service fee. Customer and Capital Power agree that if payment is not made upon completion there shall be added to all past due Final Payments a late payment fee equal to the lesser of 2% per month (24% per, annum), or the maximum amount allowed by applicable law.
- FAILURE TO DELIVER. Customer releases and discharges Capital Power Systems from any and all liability or damages including consequential and special damages which might be caused by Capital Power Systems failure or inability to deliver any Equipment by any specified date or time.
- FORCE MAJEURE. Customer hereby agrees and acknowledges that Capital Power Systems will not in any way be responsible for any acts, occurrences, or events that are caused by some third party or act of nature, including, but not limited to, Customer, that may affect, disrupt, or terminate this Agreement and thereby prevent Capital Power System’s employees from performing the services contemplated hereunder.
- DEFAULT. Should Customer in anyway fail to perform, observe or keep any provision of this Agreement, Capital Power may at its option do any or all of the following: (a) terminate this agreement; (b) declare the entire sale immediately due and payable and commence legal action therefore; (c) retake possession of the
Equipment or (d) pursue any other remedies available by law.
- REPOSSESSION OF EQUIPMENT. In the event of any actual or anticipatory breach by Customer, Capital Power Systems employees or agents may, without notice or legal process, go upon Customer’s property and take all action necessary to repossess the Equipment. Customer grants Capital Power a limited license for ingress and egress upon customer’s real property for purposes of repossession of sold Equipment and waives all claims for damages and losses, physical or pecuniary, caused thereby, and shall pay all costs and expenses incurred by Capital Power in retaking the Equipment.
- ARBITRATION. Any and all legal dispute between the customer and Capital Power Systems, by signing this contract, is agreed that these matters will be handled and resolved through a third-party arbitrator. The Arbitrator’s decision is final and binding.
- TEXAS LAW. Any disputes or legal action shall be governed under the laws of the State of Texas and shall be heard in a tribunal located in Travis County.
- AUTHORITY TO SIGN. Any individual signing this contract represents and warrants that he or she is of legal age, and has the authority and power to sign this agreement as or for the Customer.
WARRANTIES: ALL WARRANTIES EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXCLUDED EXCEPT FOR MANUFACTURES LIMITED WARRANTY
*Customer acknowledges that generators under normal usage and operation can burn up to 1 ounce per hour of oil and all fluid levels must be regularly inspected.***
**Capital Power does not repair landscaping, driveways, concrete, siding, or sprinklers. Capital Power does not perform any construction or services not included in the signed project proposal. Customer agrees that it will not withhold timely payments for the acquisition of additional items needed to complete the project.