These Terms of Service (“Terms”) govern the relationship between DGS Energy, LLC (“DGS”) and you (the “Client” or “You”) regarding the Services that DGS will perform for You.
For purposes of these Terms, the following defined terms shall have these meanings
- “Services” shall mean the services to be performed by DGS for Client, as described in the Estimate provided to Client by DGS.
- “Estimate” shall mean the document provided by DGS to Client describing the Services, the Job Site(s), and the price, among other items.
- “Invoice” shall mean the document provided by DGS to Client within 7 days of completion of the Services, stating the final amount owed by Client to DGS.
- “Job Site” shall mean the location(s) where the Services will be performed.
- “Onsite Staging” shall mean space in a parking lot or parking garage under the control of Client and located on or within 100 yards of the Job Site.
- “Start Date” shall mean the date listed on the Estimate (or as otherwise mutually agreed by the Parties) on which Client will make the Job Site available for DGS to begin performing the Services.
Scope of Work
DGS shall perform the Services in accordance with the descriptions and specifications listed on the Estimate provided to Client. DGS may, at its discretion, attach a scope of work document to the Estimate, which will further describe the Services.
Changes to Scope of Work
If, after acceptance of the Estimate, Client orders any changes to the Services, then DGS will within a reasonable amount of time communicate the increase or decrease in cost to Client in writing. DGS will memorialize the change in cost in the Invoice. DGS will follow the same protocol if any failure of Client to perform under Section 8 of these Terms prevents DGS from performing the Services as contemplated in the Estimate.
DGS warrants that the Services shall be performed in a workmanlike manner. DGS is not the designer or manufacturer of the products installed, cleaned, or serviced by DGS. OTHER THAN THE WARRANTY EXPRESSLY INCLUDED HEREIN, DGS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ITS SERVICES OR THE PRODUCTS INSTALLED, CLEANED, OR SERVICED BY DGS. DGS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED OR PURCHASED.
When Client hires DGS to provide Services, DGS shall issue Client an Estimate. You must accept the Estimate in order for DGS to commit the time and resources to perform the Services for Client. Within seven (7) days of completing the Services, DGS shall issue Client an Invoice listing the final amount owed to DGS. Full payment for the Services is due within 30 days of DGS’s sending of the Invoice to Client, or as otherwise required by DGS. Client’s failure to timely pay the Invoice amount within the allotted time will allow DGS to: (i) file a mechanic’s lien (or similar lien) for the Services performed; and (ii) charge interest of five percent (5%) per quarter or the maximum allowed under applicable law on the unpaid amount. DGS may require a deposit, which will be described on the Estimate if applicable.
From time to time, DGS is called upon to remove existing products from the Client’s property (e.g., PTACs, thermostats, etc.) (“Existing Products”). If the Services require DGS to remove Existing Products, then DGS shall remove Existing Products. All right, title, and interest in the Existing Products will pass to DGS at the time of removal. DGS will recycle, refurbish, or dispose of Existing Products in accordance with applicable environmental regulations.
DGS may cancel its provision of Services at any time and for any reason upon at least 3 days advance written notice to Client. Should Client breach these Terms at any time, then DGS may terminate the Services immediately and without advance notice. After acceptance of the Estimate, Client may only cancel the Services under the following circumstances:
- If it is at least 21 days before the Start Date, then Client may cancel the Services at no charge to Client via written notice to DGS via email of Client’s desire to cancel.
- If it is between 7-20 days before the Start Date, then Client may cancel the Services via written notice to DGS via email of Client’s desire to cancel. Client must pay DGS a cancellation fee of 7.5% of the total price shown on the Estimate.
- If it is 6 days or fewer before the Start Date, then Client may cancel the Services via written notice to DGS via email of Client’s desire to cancel. Client must pay DGS a cancellation fee of 15% of the total price shown on the Estimate.
- If Client cancels the Services while they are being performed, Client must pay DGS the total price shown on the
Client’s Inspection Right
Once DGS has performed the Services, Client will have 48 hours to inspect the Services. This is Client’s sole opportunity to inspect and to note any problems and request any corrections. Client must ensure that it has an agent, employee, officer, owner, or authorized agent on the Job Site while the Services are being performed. Client’s failure to provide such an individual will waive Client’s right to raise any complaints with the Services.
To perform the Services in the manner and at the price described in the Estimate, DGS requires the Client to execute the following responsibilities at no cost to DGS:
- Client must continuously provide Onsite Staging to DGS beginning on the Start Date unless stated otherwise in the Estimate.
- Client must provide DGS with access to the rooms and areas where Services are to be provided beginning on the Start Date and then continuously throughout the period required by DGS to complete the Services.
- If DGS is performing Services in rooms or areas that are rented or occupied by guests of Client, then Client must provide an agent, employee, officer, owner, or authorized agent of Client to accompany DGS personnel while DGS personnel are performing Services in such rented or occupied rooms or areas.
- Client must provide adequate electricity and electrical outlets for DGS to perform Services.
- Client must ensure that any rooms or other areas where DGS performs Services are safe to enter.
- Client must ensure that any PTACs or other equipment installed by DGS are supplied with clean electricity in the proper voltage.
- Client must ensure that any PTACs or other equipment installed by DGS are properly handled and stored and used in accordance with the manufacturer’s instructions and recommendations.
- Client must provide guest rooms to the DGS personnel performing the Services, as further outlined in the Estimate and accompanying scope of work. Client may either provide the guest rooms gratis or ask that DGS pay for them and charge them back on the Invoice.
If Client does not execute the above responsibilities, then such failure will prevent DGS from performing the Services as contemplated in the Estimate. In the event of such failure, DGS reserves the right to increase the cost of the Services. DGS will communicate any cost increase in writing to Client, and it will include the cost increase in the Invoice.
If Client purchases products or goods from DGS (in addition to Services), then Client’s purchase of said products or goods shall be governed by DGS’s Terms and Conditions.
Non-Disclosure & Non-Solicitation
Client will not discuss, disseminate, release, or otherwise disclose any confidential, technical, strategic, or proprietary information of DGS, including but not limited to the pricing for the Services. Client will not, for a period of three (3) years after the date DGS last performs Services for Client, directly or indirectly, on its own behalf, or on behalf of others, (i) solicit, divert or appropriate, or attempt to solicit, divert or appropriate any business from DGS, whatsoever, or (ii) hire or attempt to hire, induce, or contract with any employees or contractors or subcontractors of DGS to enter into any direct or indirect relationship or arrangement with Client, whatsoever.
Limitation of Liability
Under no circumstances will DGS be liable for special, indirect, liquidated, or consequential damages of any kind, including but not limited to lost profits, business interruption, costs of replacement services, or increased costs of operation, maintenance, or staffing. In no event shall DGS’s combined, aggregate, and lifetime liability arising out of or related to the services provided to client exceed the total price shown on the estimate OR $25,000.00, WHICHEVER IS LESS.
Client will indemnify and hold harmless DGS for and against any and all claims, actions, damages, judgments, settlements, costs, expenses, or other liabilities (including reasonable attorneys’ fees) for personal injury, death, disease, property damage, or other harm for which recovery of damages is sought or suffered by any person or persons, entity or entities, that may arise out of or result from Client’s breach of these Terms, or by any act or omission of Client, its officers, employees, principals, agents, contractors, or subcontractors, in connection with the provision of the Services hereunder.
Effect of These Terms
Each Estimate provided by DGS will expressly incorporate these Terms, and these Terms will govern the relationship between DGS and Client and their respective rights and responsibilities. The terms of any Estimate are meant to supplement these Terms, and should the terms of any Estimate or any Invoice conflict with these Terms, then these Terms shall control. These Terms and the terms of any Estimate will become legally binding upon Client’s acceptance of the Estimate. Acceptance may be manifested by allowing DGS to perform the Services, by email or other written or electronic communication indicating acceptance of or consent to the Estimate, by electronic signature or any other form of signature on the Estimate, or by verbal acceptance of or consent to the Estimate.
- These Terms do not create any employment, agency, franchise, joint venture, partnership or other similar legal relationship between DGS and Client.
- DGS may subcontract with third parties to provide the Services, at its sole discretion.
- Cancellation of the Services will not relieve Client of its payment obligations or indemnity obligations as described in these Terms, which will survive indefinitely.
- If any provision of these Terms is declared by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of these Terms will continue in full force and effect, and the offending provision will be construed so as to be valid and enforceable in keeping with the parties’ intent.
- These Terms, together with any Estimate and Invoice, constitutes the entire agreement between the parties, and merges all previous negotiations and discussions. All prior and contemporaneous agreements, representations, statements, negotiations, understandings, and undertakings are superseded by these Terms. These Terms may be modified only in a writing signed by both parties which expressly states that it is intended to modify these Terms.
- These Terms will be construed under the laws of the State of Tennessee, regardless of conflict of law principles. Any legal actions arising from these Terms must be filed within a court located in Knox County, Tennessee. Any legal action filed within any other jurisdiction shall be immediately removed to a court within Knox County, Tennessee.
- The waiver by DGS of a breach of any provision of these Terms by Client will in no way be construed as a waiver of any succeeding breach of such provision or a waiver of the provision itself. No waiver of any provision of these Terms, whether by conduct or otherwise, in any one or more instances, will constitute a waiver of any other provision, nor will such waiver constitute a continuing waiver, and no waiver will be binding unless executed in writing.
- Any communication required or desired to be given under these Terms must be written and sent via email to the email address listed for DGS on the Estimate.
- Should DGS employ an attorney to collect payment, to otherwise enforce these Terms, or to enforce any judgment based thereon, DGS will be entitled to receive its reasonable attorneys’ fees and costs.
- The rights and remedies of DGS under these Terms are not exclusive, but are cumulative, and are in addition to all other rights and remedies provided by law or equity.