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TERMS AND CONDITIONS

  1. These terms and conditions of sale (these "Terms"), together with the Home Improvement Contract and/or Proposal (collectively, the "Proposal" or the "Contract") to which these Terms are attached are the only terms which govern the sale of the generator and related products, components and parts (collectively, the "Goods") and provision of services, including installation of the Goods ("Services") identified on the Proposal. These Terms and the Contract (together, this "Agreement") comprise the entire agreement between West Coast Energy Systems LLC (d/b/a Golden State Power Solutions) ("Seller") and the customer named in the Contract ("Customer"), and supersede all prior or contemporaneous understandings, agreements, representations and warranties, and communications, both written and oral. Seller objects to any different or additional terms contained in any other document sent or to be sent by Customer, which are expressly rejected. Other than an exercise by Customer of its three-day right to cancel as set forth in this Agreement, this Agreement may only be amended or modified in a writing stating specifically that it amends this Agreement and is signed by each party. If Customer signs up for the Mobile Link Monitoring service, such service is governed by separate subscription terms and conditions.
  2. Seller shall install the Goods at Customer's premises (the "Premises") as identified in the Proposal, using Seller's standard methods. Seller agrees to complete the installation of the Goods, subject to this Agreement, and shall use reasonable efforts to meet any performance dates identified in the Proposal, which are estimates only, subject to the availability of the Goods and receipt of the necessary permits for installation of the Goods. Seller shall not be liable for any delays. Customer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to the Premises, including supplying the necessary utilities for installation of the Goods, and such accommodation as may reasonably be requested by Seller, for the purposes of performing the Services; and (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are necessary for Seller to perform Services.
  3. Title and risk of loss passes to Customer upon installation of the Goods at the Premises. As collateral security for the payment of the purchase price under the Agreement, Customer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this paragraph constitutes a purchase money security interest under the California Uniform Commercial Code.
  4. If Seller's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
  5. Customer shall purchase the Goods and Services from Seller at the price(s) set forth in the Proposal (the "Price"). The Price is exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed on any amounts payable by Customer. Seller will obtain all required building permits, at the sole expense of the Customer. Upon demand by the Seller, the Customer shall provide funds to acquire any and all necessary permits in a timely fashion. Customer will pay assessments and charges required by public bodies and utilities for financing or repaying the cost of sewers, storm drains, water service, schools and school facilities, other utilities, hook-up charges and the like.
  6. Customer shall pay the Price at such times and in such amounts as are set forth in the Proposal. Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Seller for all costs incurred in collecting late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the installation of the Goods or performance of any Services if Customer fails to pay any amounts when due hereunder.
  7. The Goods are sold by Seller subject to the current version of the 5 Year Limited Warranty for Standby Generators from Generac Power Systems, Inc. ("Generac"), which can be found at https://generac.power-plans.com/terms?key=1, and copies of which are available to Customer upon request (the "Generac Warranty"). The limitations, and Customer's sole remedies related to the Generac Warranty, are contained therein. EXCEPT FOR THE GENERAC WARRANTY AND EXCEPT AS REQUIRED BY STATE LAW, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. ANY IMPLIED WARRANTIES WHICH ARE REQUIRED BY STATE LAW SHALL BE LIMITED IN DURATION TO THE TERMS OF THE EXPRESS WARRANTY PROVIDED IN THE GENERAC WARRANTY. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE REMEDIES SET FORTH IN THE GENERAC WARRANTY SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE GENERAC WARRANTY. THE GENERAC WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU ALSO HAVE OTHER RIGHTS FROM STATE TO STATE.
  1. IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES WHETER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERER FORSEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER; PROVIDED, THAT THE LIMITATION ON LIABILITY SET FORTH IN THIS SENTENCE SHALL NOT APPLY TO (I) LIABILITY RESULTING FROM SELLER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND (II) DEATH OR BODILY INJURY RESULTING FROM SELLER'S ACTS OR OMISSIONS.
  2. Customer shall comply with all applicable laws, regulations and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
  3. In addition to any remedies that may be provided under this Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Customer, if Customer (a) fails to pay any amount when due under this Agreement, (b) has not otherwise performed or complied with this Agreement, in whole or in part, or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
  4. No waiver by Seller of any provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller.
  5. Seller shall not be liable to Customer for any failure or delay in fulfilling or performing any term of this Agreement, to the extent such failure or delay is caused by or results from acts beyond Seller's control, including, without limitation, the following force majeure events: (a) acts of God, (b) flood, fire, earthquake, pandemics or epidemics, or explosion, (c) war, terrorist threats or acts, riot or other civil unrest, (d) government order, law, or actions, (e) embargoes or blockades in effect on or after the date of this Agreement, (f) national or regional emergency, (g) strikes, labor stoppages or slowdowns, or other industrial disturbances, and (h) other events beyond the control of Seller. If any such event continues for a period of 60 days, Seller may thereafter terminate this Agreement upon written notice to Customer.
  6. To the extent that weather may impact the work covered by this Agreement, Seller will attempt to keep the project reasonable covered during the work. However, Customer understands that weather conditions can arise that might cause damage to the Goods. Seller shall not be responsible for any such damage beyond its reasonable control.
  7. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller and any purported assignment or delegation in violation of this sentence is null and void. Seller may subcontract portions of the work to be provided by Seller under this Agreement to properly licensed and qualified subcontractors.
  8. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
  9. All matters relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City of Stockton and County of San Joaquin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
  10. All notices, requests, consents, claims, demands, waivers, and other communications hereunder ("Notices") shall be in writing and addressed to the parties at the addresses set forth on the face of the Proposal or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with requirements of this paragraph.
  11. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  12. Portions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.