Applicability.

These terms and conditions (these "Terms") and/or invoice(s), as applicable, (collectively, this "Agreement") comprise the entire agreement between Penguin Home Services LLC d/b/a Penguin Plumbing, Heating, Cooling, and Electric ("Penguin" or "Company") and the customer ("Customer") concerning the Services (as defined below) and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement is the only agreement that governs the provision of services by Penguin to Customer.

In the event of any conflict between these Terms and the invoice(s), the order of precedence shall be: (a) the invoice, and (b) these Terms.

These Terms are effective on the date of Customer's signature on the Customer invoice or the Customer's receipt of the Services, whichever is earlier (the "Effective Date"). The latest version of these Terms will be posted on Penguin's website at https://www.penguinhomeservices.com/pages/terms.html, which Customer should regularly review for updates to the Terms. Customer's continued use of the Services after a posted change in these Terms shall constitute Customer's acceptance of and agreement to all such changes.

Services.

Subject to Customer's compliance with terms and conditions of the Agreement, Penguin agrees to provide the agreed upon services as described on the Customer invoice, including but not limited to plumbing, heating, cooling, electrical services, repairs, one-time or ongoing maintenance, or any other services provided by Penguin ("Services").

Prior to or as part of any Services being provided, all existing equipment that is eligible for maintenance, repairs, servicing, and/or any equipment subject to Services under the Agreement, as provided in the Customer invoice (the "Equipment"), must be located in, or able to be installed by the Penguin technician in, a single-family residential property leased (in which event all consents to authorize the Services must have been duly obtained by Customer) or owned by the Customer (the "Residence"). If the Residence is a townhouse, condominium, apartment unit, modular home, or manufactured home, the Services shall be provided only with respect to the Equipment and systems serving the individual unit, not any common areas or shared systems in multiple unit dwellings.

Penguin reserves the right, but not obligation, to inspect any existing Equipment and any repairs deemed necessary will be reported to the Customer and an estimate will be provided. If Customer accepts the estimate, all such services shall be performed in accordance with terms and conditions of this Agreement.

Customer acknowledges and agrees that Customer has been informed by Penguin of the risks associated with installing a portion of new HVAC Equipment or any other Equipment while connecting to Customer's existing system. In the event of system performance issues occurring upon or after Installation (as defined below), Penguin shall not be liable for any expense related to repairing Customer's system. Despite being made aware of these risks, Customer acknowledges and agrees that Customer would like to forfeit the professional recommendation of the entire system replacement.

For all Equipment, whether installed by Penguin or serviced by Penguin, Customer is responsible for any additional cost to repair unforeseen damage and/or inadequate ductwork that prevents proper Installation or the function of the Equipment. During the HVAC Equipment Installation process, Penguin will be connecting to the existing duct system, refrigerant line set, gas piping, flues, drains, drain pans, electrical circuits, HVAC-related accessories, zoning systems, and controls (including thermostats), unless otherwise noted in the Customer invoice. Utility rebates, if any, including assistance in claiming of rebates, shall be Customer's sole responsibility and Penguin shall not have any obligation or responsibility related thereto.

All line set replacements are contingent upon accessibility. If line set replacement is not achievable, the existing line set will be properly flushed and reused if possible.

Any conditions or circumstances, including but not limited to any unanticipated site conditions or impediments, which increase the cost of Installation or any other service provided by Penguin in connection with the Equipment or otherwise shall be Customer's sole responsibility and will be invoiced to Customer in accordance with Penguin's current policies and procedures. For the avoidance of doubt, Penguin shall not be obligated to install the Equipment on Customer's system or perform any Services if there is any condition or other impediment prohibiting, restricting, or making it impractical or impossible (in Penguin's technician's sole discretion) to complete the Installation or the provision of the Services, as applicable. Customer shall be responsible for removing any obstacles or hazards that may be required to be removed in order to properly perform the Services, Installation, and/or removal of the Equipment. Penguin shall not be responsible for replacement or damage to any items or any other real or personal property in connection with its performance of the Services hereunder, except to the extent caused by Penguin's willful misconduct.

Installation of New Equipment.

If any Equipment is made available to Customer under the Agreement, and if Customer agrees to the installation of the Equipment in connection with Customer's system (the "Installation"), Penguin shall be authorized to install the Equipment. Customer shall comply with all reasonable requests of Penguin in connection with the Installation of the new Equipment. The Installation shall be deemed Services as defined in this Agreement and may be completed by Penguin or Penguin's affiliates, subcontractors, or agents. During the Installation process, Customer may be required to accept terms and conditions required by the Equipment's original manufacturer. By accepting this Agreement, the Installation, and/or the Equipment, Customer shall be deemed to have accepted such terms and conditions, if applicable, in order to complete the Installation.

If any Equipment is made available to Customer under the Agreement, and if Customer agrees to Installation, Customer agrees to: (a) Use the Equipment in accordance with all documentation, information, and other written instructions provided to Customer by Penguin, including any original manufacturer requirements; (b) Install or allow the installation of any fixes, updates, or upgrades reasonably requested by Penguin, at Customer's cost, unless specified otherwise by Penguin in writing; (c) Immediately notify Penguin upon discovery of an emergency condition related to the Equipment; (d) Not do anything, permit or allow to exist any condition or circumstances, which would cause the Equipment to not operate as intended; (e) Permit Penguin, after reasonable notice and at a mutually agreed upon time, to inspect the Equipment for proper operation and to make necessary repairs and replacements, at Customer's cost, unless specified otherwise; and (f) Not make any modifications, improvements, revisions, or additions to the Equipment without Penguin's prior written consent.

If any Equipment is made available to Customer under the Agreement, and if Customer agrees to Installation, Customer shall not attempt to, nor allow any third party to: (a) Modify, translate, adapt, arrange, develop or create derivative work of, decompile, disassemble, decrypt, extract, reverse engineer or assemble the Equipment or any part thereof; (b) Create additional connections of the Equipment to other software or systems without Penguin's prior written approval; (c) Remove from the Equipment any notices of proprietary rights or other product identification contained on or within the Equipment or alter or obscure such notices; or (d) Use the name of Penguin or any affiliated party or their trade names or trademarks, or obtain access to the source code of the Equipment.

Building and Zoning Code Requirements or Violations.

If current building or other code violations are discovered by the Penguin technician before or during the performance of the Services, Penguin shall stop work until Customer completes the necessary corrective work at Customer's sole expense and/or Penguin confirms that continuing the Services is compliant with all applicable law. If a permit is required to perform the Services, the cost of such permit may be charged to Customer. Penguin will not perform the Services if the appropriate permits cannot be obtained.

Unavailable Parts or Non-Repairable Equipment.

Complete replacement of the Equipment is not covered by this Agreement unless specifically stated in the Customer invoice. Penguin shall use commercially reasonable efforts to obtain a replacement part or an appropriate substitute to repair the Equipment. Customer understands that limited availability of certain parts may result in delays from time to time. If Penguin cannot repair the Equipment because a part is obsolete, no longer available, or Penguin cannot obtain it at a commercially reasonable cost, Penguin shall not be liable to make the replacement and Customer may terminate this Agreement by providing Penguin written notice to the address set forth in Section 17.

Customer acknowledges and agrees that special order parts are nonreturnable. If a part order is cancelled after approval by Customer, Customer is responsible for the total amount owed for such part order. All materials and parts are warranted by the manufacturers' or suppliers' written warranty only (if any and to the extent available), and Penguin makes no warranties whatsoever, expressed or implied, with respect to any materials and parts, and its technicians are not authorized to make any such warranty on behalf of Penguin.

Hazardous Materials.

The Services do not include the identification, detection, abatement, encapsulation, or removal of asbestos, radon gas, mold, or products or material containing asbestos, radon gas, mold, or other hazardous substances. If any hazardous materials are encountered in the course of performing the Services at the Residence, the Penguin technician shall have no obligation to continue the work until such products or materials are abated, encapsulated, or removed, or it is determined that no hazard exists (as the case may require). Penguin shall have no obligation whatsoever to arrange for and shall have no liability for the removal of, failure to detect, or contamination as a result of its failure to detect any asbestos, radon gas, mold or other hazardous products or materials.

Customer's Acts or Omissions.

If Penguin's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer, Penguin shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

Customer Obligations.

Penguin's provision of Services is contingent upon Customer's compliance with this Agreement, Penguin's policies applicable to the Services, and all applicable laws.

In addition to all other requirements, Customer hereby agrees to:

• ensure the Residence and the working area where Penguin technicians provide Services are easily accessible and free of health and safety hazards for Penguin technicians;
• cooperate with Penguin in all matters relating to the Services and provide such access to Customer's premises, including the Residence, for the purposes of performing the Services;
• obtain all requisite authorizations, consents, permissions, and otherwise comply with all applicable laws in relation to the Services and the Agreement;
• indemnify, defend, and hold Penguin and its affiliates, employees, agents, licensors, subcontractors, and representatives ("Penguin Group") harmless from and against any and all losses, damages, claims, demands, expenses, and injuries of whatever kind and nature, including attorneys' fees, asserted against Penguin Group as a result of or otherwise arising out of: (a) any acts or omissions of Customer or any third-party in connection or otherwise related to the Equipment, Services, or Residence; (b) breaches of any obligations, representations, or warranties of Customer contained herein; (c) any injuries or property damages related to or otherwise arising in connection with this Agreement (including those arising as a result of Penguin Group's negligence, but not Penguin's gross negligence or willful misconduct); or (d) any violation of applicable laws by Customer or anyone acting on Customer's behalf.

Customer's failure to comply with any of the obligations contained in this Agreement and/or any other Penguin policies may result in Penguin technicians' refusal to perform or complete scheduled Services (without any liability on behalf of Penguin), Penguin technicians' departure from the Residence prior to commencing or completing any Services, and/or additional charges to Customer's account.

Fees; Billing.

In consideration of the provision of Services by Penguin and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in the invoice provided to Customer (the "Fee"). Payment to Penguin of such Fees shall constitute payment in full for the performance of the Services.

Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.

Payment is due upon completion of services. We accept cash, check, and major credit cards. We are currently in the process of setting up financing options for our customers.

In the event Customer fails to make a payment of the Fee when due for any reason, Penguin reserves the right to: (a) charge interest on any such unpaid amounts at a rate of two percent (2%) per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; (b) suspend or delay performance for any or all Services until payment has been made in full (including all interest); (c) seek reimbursement of all costs related to Penguin's collection efforts, including but not limited to attorney's fees and all other expenses; and (d) otherwise seek all other remedies available to Penguin at law or in equity.

Intellectual Property.

All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Penguin in the course of performing the Services, shall be owned by Penguin or its licensors.

Limited Services Warranty.

Penguin warrants to Customer that during the Warranty Period (as defined herein) it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services (the "Limited Services Warranty").

Penguin's responsibility for a breach of the Limited Services Warranty shall be limited to repair or re-performance of such Services as determined by Penguin in its sole discretion.

The Limited Services Warranty shall not extend to the Equipment, parts, or materials.

The Limited Services Warranty extends only to Customer. The Limited Services Warranty shall not extend to any subsequent transferee or other beneficiary of the Services. Penguin may procure from time to time from third parties certain Equipment, parts, materials, hardware, software, or third-party support contracts ("Third-Party Products"). Customer acknowledges that Penguin is not the manufacturer of such Third-Party Products. To the fullest extent permitted by law, Penguin makes no representation or warranties whatsoever, express or implied, in relation to such Third-Party Products. Third party warranties may vary from product to product. It is Customer's responsibility to consult the applicable Third-Party Products documentation for specific warranty information.

The Limited Services Warranty starts on the Effective Date and lasts for a period of one (1) year from the date of the performance of the Services (the "Warranty Period"). The Warranty Period shall not be extended if Penguin repairs or replaces a warranted product or re-performs a warranted service. Penguin may change the availability of the Limited Services Warranty in its sole discretion, but any such changes shall not be retroactive.

To obtain warranty service, Customer must call 720-488-4008, or email Penguin's Customer Service Department at service@penguinphc.com during the Warranty Period. A Penguin technician shall then determine, in Penguin's sole discretion, Limited Services Warranty eligibility upon evaluation at the Residence.

Disclaimer of Warranties.

EXCEPT FOR THE LIMITED SERVICES WARRANTY DESCRIBED IN SECTION 12, PENGUIN MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, EQUIPMENT, OR THIS AGREEMENT, INCLUDING ANY: (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

Limitation of Liability.

THE REMEDIES DESCRIBED IN SECTION 12(B) ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES AND PENGUIN'S ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THE LIMITED SERVICES WARRANTY.

IN NO EVENT SHALL PENGUIN OR ANY OF PENGUIN'S AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, TECHNICIANS, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS (COLLECTIVELY, THE "PENGUIN GROUP") BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY INDIRECT LOSSES, INCLUDING ANY PROPERTY DAMAGE, LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OF PENGUIN GROUP OR OTHERWISE) OR ANY OTHER CLAIMS OR LOSSES CAUSED BY ANY FAULT, FAILURE, DELAY OR DEFECT IN PROVIDING ANY SERVICES PERFORMED BY PENGUIN GROUP, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PENGUIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

EXCEPT TO THE EXTENT PROHIBITED BY LAW, IN NO EVENT SHALL PENGUIN GROUP'S AGGREGATE LIABILITY FOR ANY DAMAGES, LOSSES OR CLAIMS ARISING OUT OF OR RELATED TO, IN ANY MANNER, THIS AGREEMENT, THE SERVICES, PRODUCTS, OR EQUIPMENT, REGARDLESS OF THE FORM OR NATURE OF THE DAMAGES, LOSSES, OR CLAIMS (INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OF PENGUIN GROUP OR OTHERWISE), OR STRICT LIABILITY) EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID TO PENGUIN BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM, DAMAGE, OR LOSS.

The limitation of liability set forth in Section 14(C) above shall not apply to liability resulting from Penguin's gross negligence or willful misconduct.

Force Majeure.

No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Penguin hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, explosion, epidemic, pandemic; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (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; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 15, either party may thereafter terminate this Agreement upon thirty (30) days' notice.

Governing Law/Jurisdiction.

All matters arising out of or relating to this Agreement or otherwise related to the parties' rights and obligations, irrespective of the location where the Services are received or provided, are governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Colorado. 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 Colorado in each case located in Boulder County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. If any term or provision of this Agreement is invalid, illegal, or unenforceable as determined by the court with jurisdiction over this Agreement, 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.

Penguin Contact Information.

Should Customer need to schedule Service, cancel this Agreement, submit a Limited Services Warranty claim, or otherwise contact Penguin, Customer shall contact Penguin as set forth herein:

Miscellaneous.

Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Penguin. Any purported assignment or delegation in violation of this Section 18 is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms. If any term or provision of this Agreement is invalid, illegal, or unenforceable as determined by the court with jurisdiction over this Agreement, 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.

Provisions of these Terms, which by their nature should apply beyond their terms, shall remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Customer's Acts or Omissions; Fees and Billing, Intellectual Property, Limited Services Warranty, Disclaimer of Warranties, Limitation of Liability, Force Majeure, Governing Law/Jurisdiction, and Miscellaneous.