Elephant Energy Standard Terms
These Standard Terms apply to the Elephant Energy Services Agreement between Elephant Energy, Inc. (“Contractor”) and its Customers. By agreeing to the Elephant Energy Services Agreement, you as a Customer are agreeing to these Standard Terms. Capitalized terms used in these Standard Terms and not otherwise defined have the meanings assigned to them in the Elephant Energy Services Agreement. These Standard Terms, any operative terms of guarantee or warranty posed on Elephant Energy’s website (the “Terms of Guarantee”), and the Elephant Energy Services Agreement are referred to herein collectively as, the “Agreement.”
1. Payment Schedule
Payments shall be made according to the payment schedule set forth in the Proposal to the Agreement. Unless otherwise specified in the Proposal to the Agreement, payments shall be payable upon receipt. Late payments (defined as 10 days after invoiced) shall accrue interest at the lesser of twenty percent (20%) per annum or the maximum rate permitted by law. Elephant Energy may cease performance until outstanding payments are made. Upon execution of this Agreement Customer shall pay Elephant Energy the amount specified in the Proposal as an initial payment. This initial payment secures the services of Elephant Energy and is non-refundable on termination or otherwise.
2. Final Payment
Upon substantial completion of the Services, Elephant Energy shall submit a final invoice for the balance of the compensation due and owing by Customer. Substantial completion shall be deemed to have occurred when the installed systems are operational even if permitting or other items remain outstanding. Payment of the final invoice shall be due upon receipt.
3. Customer Holdback
Notwithstanding the payment schedule set forth in the Proposal and final payment being due in accordance with Section 2, Customer may withhold from such final payment an amount up to 10% of the Net Project Cost for Deficiencies to be addressed by Elephant Energy. For purposes of this Section, “Net Project Cost” means the amount shown on the Proposal net of point-of-sale rebates and “Deficiencies” means outstanding work items, incomplete or corrective work, or non-conforming work related to the Services. To withhold a portion of the final payment in accordance with this Section, Customer shall first provide Elephant Energy with a written list of such Deficiencies no later than five (5) calendar days following the date of substantial completion of the Services. After Elephant Energy has addressed such Deficiencies, Elephant Energy shall submit an invoice to Customer and Customer shall remit full payment of all withheld amounts.
4. Project Schedule
Elephant Energy shall endeavor to perform the Services in accordance with the schedule set forth in the Proposal to the Agreement, subject to adjustments for unforeseen events and conditions. The schedule set forth in the Proposal to the Agreement is provided as an estimate only.
5. Change Orders
Customer may request changes to the Services by providing a written change order to Elephant Energy (a “Change Order”), a documented change to the customer's agreed project scope that changes what Elephant/contractor will deliver, what the customer will pay, and/or when the work will be completed. Elephant Energy shall advise Customer in writing of the effect of the Change Order on the project cost and timeline before implementing any changes. No Change Order is effective until set forth in writing and signed by an authorized representative of each party. Elephant Energy may require a Change Order when unknown or concealed conditions require additional or different Services and may suspend performance of the Services until a Change Order is agreed upon. Alterations made in the ordinary course of performing the Services as described in Section 7 do not constitute changes to the Services and do not require a Change Order.
6. Alternative Equipment
Elephant Energy shall use commercially reasonable efforts to procure equipment of the type specified in the Proposal or requested by Customer; provided that where such equipment is unavailable or would be unreasonably difficult or expensive to obtain, Elephant Energy may substitute alternative equipment of a similar quality at its sole discretion.
7. Nature of the Services; Existing Conditions
Authority. Customer represents that it owns the property or is otherwise authorized to permit the Services and the alterations described in this Section, and has obtained any consent required from co-owners, lenders, homeowners' associations, landlords, or historic or design review bodies.
Construction Work. Customer acknowledges that the Services constitute construction and renovation work performed in an existing, occupied structure, and not the delivery of a manufactured product. Elephant Energy and its designees will exercise professional judgment in the field regarding equipment selection and placement, line set, duct, electrical, and condensate routing, penetration locations, and similar matters, and may adjust these determinations as site conditions require. Elephant Energy installs and services energy equipment and does not hold itself out as a general contractor, architect, structural engineer, designer, or restoration firm
Alterations. Customer authorizes Elephant Energy and its designees to make alterations to the property reasonably necessary to perform the Services, including cutting, drilling, and penetrating walls, ceilings, floors, roofs, siding, and foundations; removing, relocating, or altering fixtures, cabinetry, shelving, insulation, ductwork, piping, wiring, decking, and landscaping; and temporarily interrupting utility service. Elephant Energy will close and patch penetrations in a workmanlike manner but is not responsible for sanding, painting, texturing, refinishing, or matching existing finishes, colors, or materials unless expressly included in the Proposal.
Ambient Temperature Effects. Customer acknowledges that heat pump water heaters extract thermal energy from surrounding air to heat water, resulting in the regular release of chilled, dehumidified air into the immediate vicinity (such as a closet, basement, or utility room). Customer understands this operation will lower ambient temperatures nearby, particularly during heavy hot water use. Although this effect offers dehumidification benefits, it can cool surrounding areas if the location lacks thermal isolation. Elephant Energy shall not be responsible for providing supplementary heating solutions or equipment to counteract localized ambient cooling.
Asbestos Remediation. Customer acknowledges and agrees that management and abatement of asbestos materials shall be the sole responsibility of Customer. In the event that asbestos is encountered during the performance of the Services, Elephant Energy may immediately suspend all work, and Customer shall be responsible for securing and paying for all necessary remediation prior to the resumption of work.
Cosmetic Effects. Customer acknowledges that dust, minor cosmetic imperfections, and incidental wear to finishes and surfaces are inherent in work of this nature.
Existing Conditions. The property may contain latent, concealed, or undocumented conditions that cannot be identified without destructive investigation. Elephant Energy is not responsible for pre-existing defects, deficiencies, code non-compliance, deferred maintenance, or hazardous materials, or for damage, cost, or delay arising from or revealed by such conditions, and may require a Change Order under Section 5 to address them.
Extra Work and Out-of-Scope Requests. Contractor shall have no obligation to perform work or services that are outside the scope of the applicable Proposal, inconsistent with applicable laws, building codes, or manufacturer specifications, or deemed impracticable by Contractor in its professional judgment. Any Customer request for modifications or additional services must be submitted as a written Change Order pursuant to Section 5. Contractor shall be indemnified and held harmless by Customer from any claims, damages, or liabilities arising directly from Customer-directed alterations or requests performed outside of or in violation of the agreed Proposal or applicable standards.
Plaster Walls. Customer acknowledges that the property may feature plaster and lath wall or ceiling finishes. Owing to the inherent fragility and age of plaster construction, vibration and movement from performing the Services may result in hairline cracks, key breakage, or loosening of pre-existing plaster materials. Elephant Energy shall not be liable for repairing minor plaster cracking or stabilizing plaster surfaces outside the direct vicinity of equipment placement.
Structural Modifications. If Elephant Energy determines that performing the Services may require cutting or altering a joist, load-bearing member, or other element of possible structural significance, Elephant Energy shall notify Customer and shall not proceed without Customer's written approval. Customer may, at Customer's election and expense, obtain an evaluation from a licensed structural engineer or other qualified professional before providing such approval.
System Noise. Customer acknowledges that HVAC, plumbing, and electrical systems inherently produce operational noise, including from indoor and outdoor components, during normal use. The system is expected to operate within the manufacturer’s specified decibel (dB) range and applicable local municipal noise ordinances, provided the equipment is installed in a location approved by Customer pursuant to the Proposal. Customer understands that perceived noise levels may vary based on environmental conditions, installation factors, and individual sensitivity. Accordingly, Customer agrees that subjective determination of noise as “too loud” shall not constitute a defect or grounds for remediation, provided the system is functioning within manufacturer specifications and local code.
Utility Bill Increases. : Customer acknowledges that installation and operation of a heat pump system may result in changes to utility usage, including potential increases in electrical consumption and associated costs. While heat pumps are designed to provide efficient heating and cooling, actual operating costs will vary based on factors such as home characteristics, insulation levels, weather conditions, utility rates, and individual usage patterns. Contractor makes no guarantees regarding specific energy savings or utility costs, unless noted elsewhere. Customer understands that any increase in electrical expenses is not the responsibility of the Contractor. Accordingly, changes in utility costs shall not constitute a defect or grounds for claim against the Contractor.
Visible Routing. Elephant Energy will provide Customer with specifications for line set routing, line hiding, and exterior equipment placement prior to installation and will not commence such work until Customer has approved those specifications. Any Customer request to reconfigure approved routing for aesthetic reasons after installation shall be handled as a Change Order at Customer's expense.
Water Pressure. Water heater manufacturers establish maximum PSI thresholds for their equipment. Should the property's water pressure exceed these defined parameters, a pressure reducing valve (PRV) must be added at Customer's expense; otherwise, Customer assumes full responsibility for any operational failures, damages, or related claims stemming from high water pressure.
8. Customer Obligations
Access and Information. Customer shall provide Elephant Energy or its designees with timely access to the property where the Services are to be performed as required for Elephant Energy or its designees to perform the Services. Customer shall also provide all necessary and requested information related to the property and the Services promptly upon request by Elephant Energy or its designees.
Cooperation. Customer shall cooperate fully with Elephant Energy and its designees and shall take all actions reasonably necessary to enable Elephant Energy or its designees to perform the Services in accordance with this Agreement. This includes timely decisions and approvals as may be necessary for the progress of the Services.
Program Enrollment. Elephant Energy may monetize the Environmental Attributes and/or the carbon-reduction value of the systems installed as part of the Services including by enrolling Customer in demand response or similar programs. Customer authorizes Elephant Energy to do so and agrees to provide information related to such programs and enrollment as and when requested by Elephant Energy.
Payment. Customer shall make all payments due under this Agreement in a timely manner as provided in the Proposal and in accordance with the terms of this Agreement.
Compliance with Laws. Customer shall comply with all laws, rules, and regulations applicable to Customer’s obligations under this Agreement.
Notice of Defects. If Customer becomes aware of any defect in the Services or non-compliance with this Agreement, Customer shall promptly give written notice to Elephant Energy.
Delays. If Customer fails to fulfill any of its obligations under this Agreement, which results in a delay in Elephant Energy or its designees’ performance of the Services, any timelines or schedules set forth in this Agreement or any Exhibit hereto shall be automatically extended for a period to accommodate such delay. If any Customer-caused delay results in an increase in Elephant Energy’s cost of performing the Services, including without limitation, costs due to price increases for labor or materials, storage costs, or other related costs, Customer shall be responsible for such increased costs, which shall be added to the compensation due to Elephant Energy under this Agreement.
9. Insurance
Elephant Energy shall maintain insurance coverage in accordance with industry standards and applicable law. Customer shall also maintain appropriate property and general liability insurance for the duration of the project.
10. Indemnification
Subject to the limitations of liability set forth in the Agreement and to the fullest extent permitted by law, each party (the “Indemnifying Party”) agrees to indemnify and hold harmless the other party, its officers, directors, employees, managers, members, advisors, and agents (the “Indemnified Parties”) from and against all claims, losses, damages, liabilities, and expenses (including reasonable attorneys’ fees) that the Indemnified Parties may incur as a result of third party claims arising out of or resulting from the negligence, misconduct, or breach of this Agreement by the Indemnifying Party or its employees or agents. The Indemnifying Party’s obligations under this Section shall not apply to the extent that any claim, loss, damage, liability, or expense is found in a final non-appealable judgment by a court of competent jurisdiction to have been due to the negligence or willful misconduct of any of the Indemnified Parties. The Indemnified Party shall give the Indemnifying Party prompt written notice of any losses subject to indemnification or discovery of facts on which the Indemnified Party intends to base a request for indemnification. Each notice must contain a description of the third-party claim and the nature and amount of the related losses incurred. The Indemnified Party shall furnish copies of all papers and official documents received in respect of any losses. The Indemnifying Party shall promptly reimburse the Indemnified Party for such losses.
11. Release
To the maximum extent permitted by applicable law, Customer, on behalf of itself and its owners, heirs, successors, and assigns, irrevocably waives and releases all claims, demands, damages, and causes of action against Elephant Energy, its officers, directors, employees, agents, subcontractors, and trade partners for any damage, alteration, or change to the property arising from or relating to the performance of the Services or the alterations, existing conditions, and cosmetic effects described in Section 7.
This release does not apply to: (a) claims for bodily injury or death; (b) Elephant Energy's obligations under the Terms of Guarantee; (c) claims arising from gross negligence or willful misconduct; or (d) any right or remedy that may not be waived under applicable law.
Customer acknowledges that this release is a material part of the consideration for Elephant Energy's performance of the Services and is reasonable in scope. If any portion of this Section is held unenforceable, it shall be enforced to the maximum extent permitted and the remainder of this Agreement shall remain in full force and effect.
12. Dispute Resolution
If a dispute arises out of this Agreement or the Services, the parties shall take the steps below.
Negotiation. If a dispute arises, the parties shall work towards a resolution through good-faith negotiation. At minimum, good-faith negotiation shall consist of at least one (1) written correspondence from each party outlining the following material information about its position: an outline of the party’s position; an explanation of why the party’s position is reasonable; and what relief—monetary or otherwise—the party will accept to resolve the dispute.
Litigation. If negotiation as described above is unsuccessful, either party may initiate a legal suit, action, or proceeding. Any legal suit, action, or proceeding arising out of or related to this Agreement shall be instituted exclusively in the state and federal courts of the United States located in the city and county of Denver and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The parties irrevocably and unconditionally waive any objection to venue of any suit, action, or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.
Attorneys’ Fees. If either party institutes any legal suit, action, or proceeding against the other party arising out of or relating to this Agreement, the substantially prevailing arty in the suit, action, or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including actual attorneys’ fees and expenses and court costs.
Exceptions. Elephant Energy may circumvent this Section to pursue compensation owed by Customer.
13. Liens
Customer acknowledges and agrees that Elephant Energy may have lien rights over Customer’s property under applicable state and local laws if Customer fails to make payment as required under this Agreement. Not including non-payment by Customer pursuant the withholding right set forth in Section 3, in the event of non-payment or late payment by Customer, Elephant Energy may, at its discretion and in accordance with applicable laws, file a lien against Customer’s property. This lien may secure the amount of any unpaid invoices, including additional costs and interest. Customer agrees to provide, upon Elephant Energy’s request, any necessary documentation or information required for Elephant Energy to exercise its lien rights. If Elephant Energy places a lien on Customer’s property, Customer shall be responsible for all costs and expenses, including attorney’s fees, incurred by Elephant Energy in enforcing the lien.
14. Term
The term of this Agreement commences as of the Effective Date and continues in effect until completion of the Services set forth in the Proposal unless earlier terminated in accordance with Section 15 or as otherwise provided in this Agreement.
15. Termination
Termination for Cause. Either party may terminate this Agreement if the other party defaults in performing any of its material duties or obligations under this Agreement, and such default is not cured within thirty (30) days after receiving written notice from the non-defaulting party specifying the non-monetary default or not cured within ten (10) days after receiving written notice from the non-defaulting party specifying the monetary default.
Termination for Convenience. Customer may terminate this Agreement for any reason upon providing Elephant Energy with a sixty (60) day written notice.
Effect of Termination. Upon termination of this Agreement for any reason, Customer shall promptly pay Elephant Energy for all Services performed up to the date of termination, plus any direct expenses incurred by Elephant Energy as a result of such termination.
16. Force Majeure
Neither party will be liable for any failure or delay in performing its obligations under this Agreement to the extent that this failure or delay is caused by a Force Majeure Event. A “Force Majeure Event” refers to any circumstance beyond the reasonable control of a party, including without limitation: acts of God; natural disasters; wars; civil unrest; terrorism; strikes; labor disputes; epidemics; pandemics; government actions; national or regional emergencies; or any other event which is beyond the reasonable control of the party affected. The party affected by the Force Majeure Event shall promptly notify the other party in writing and shall use commercially reasonable efforts to mitigate the effect of the Force Majeure Event and to fulfill its obligations under the Agreement. If a Force Majeure Event prevents, hinders, or delays Elephant Energy’s performance of its obligations for a continuous period of more than sixty (60) days, Customer may terminate this Agreement by giving thirty (30) days’ written notice to Elephant Energy.
17. Relationship of the Parties
Elephant Energy is an independent contractor. Nothing in this Agreement shall be construed to create a partnership, joint venture, or employer-employee relationship between the parties. Neither party is the agent of the other, and neither party is authorized to make any representation, contract, or commitment on behalf of the other party.
18. Subcontractors; Assignment
Elephant Energy may, at its discretion, use subcontractors to perform all or any portion of the Services under this Agreement. The Services set forth in this Agreement are personal to Customer and Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Elephant Energy.
19. Marketing Use
Customer grants to Elephant Energy a non-exclusive, royalty-free license to use photographs, videos, and descriptions of the project, including before, during, and after photographs and videos, and any other materials resulting from the Services for Elephant Energy’s marketing and promotional purposes.
20. Notices
Any notice or communication required or permitted under this Agreement shall be in writing and shall be deemed received when: (a) delivered personally; (b) sent by email, on the date of transmission; (c) three (3) business days after being sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) business day after being sent by a nationally recognized overnight courier service, addressed to the party to be notified at the address set forth on the signature page, or at such other address as such party may designate by written notice to the other party.
21. Amendment; Waiver
This Agreement may be amended only by a written document signed by both parties. No waiver of any provision of this Agreement will constitute a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement will not operate as a waiver of such provision or any other provision.
22. Severability
If any provision of this Agreement is found to be illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect.
23. Governing Law
This Agreement will be governed by and construed in accordance with the laws of the State of Colorado, without regard to its conflict of laws principles.