Preview
FILED: WESTCHESTER COUNTY CLERK 01/30/2024 12:32 PM INDEX NO. 68181/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/30/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
___________________________________________________________Ç
SLOMIN'S, INC.
PLAINTIFF,
INDEX NUMBER 68181/2023
-AGAINST- FILE NO. 302136
HURBERT GRIFFITHS AFFIDAVIT OF FACTS
DEFENDANT.
-__________________________________________________________Ç
STATE OF )
COUNTY OF
L.5 A )
, being duly sworn, deposes and says that:
1. I am an emplo of Plaintiff, and as such I have personal knowledge of and access to Plaintiffs books and
records ("Business Records"), including electronic records, relating to the account ("Account") of HURBERT
GRIFFITHS ("Defendant"). I also have personal knowledge of Plaintiffs procedures for creating and
maintaining its Business Records. Plaintiffs Business Records were made in the regular course of business, and
it was the regular course of such business to make the Business Records. The records were made at or near the
time of the events recorded. Based on my review of Plaintiffs Business Records, I have personal knowledge of
the facts set forth in this affidavit.
2. Plaintiff, at the request of defendant(s), provided work, labor, services and/or goods to the Defendant.
3. Plaintiff duly performed all conditions on its part.
4. On and after February 4, 2023, Defendant(s) failed and refused to fully pay for the work, labor, services and/or
goods provided, despite due demand therefor.
5. That the just and true principal balance due and owing to Plaintiff by the Defendant(s) as of December 29, 2023
is $1,542.56
6. As set forth in New York CPLR Article 50, the interest rate applicable to the Account pursuant to section five
thousand four of this chapter applies.
Name:
The foregoing instrument was subscribed and sworn to before me this Îk day of ut , 20 , by
NotEn PuMc. S ate of New York
No. 01816295943
N ry Publ
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/30/2024
24 Hours / 365 Days Emergency Service
.-----.-m------------mn-----nmmuamamuman--K,mammamom------ans--mum-u---mum--an-------
191 HMimimi MadhdSlall-lHEiBMlmi
IliHmm-Mmmlaglll:ilmHMMilmmMM!milmlMINImdlM-MMHMW-NMl-MINIlmlMIMIMMImill“1mWMMieRMMlMMhlmlaRMMMM8HM1MERME
Account No.: 9790148 379W 052020
Oil
Heating Service Plans
Email
Hurbert griffiths (646) 491-3514
Buyer Name: Phone
By providing the phone number(s) I expressly consent to autodialed calls and text messages from SLOMIN'S,
including informational, emergency, marketing and promotional autodialed calls, at phone number(s) provided.
Hurbert griffiths
(Buyers Signature)
O By checking this box I hereby opt out of receiving marketing and promotional calls (including but not limited to
autodialed marketing and promotional calls) from SLOMIN'S.
69 DELL AVE MOUNT VERNON
Address Te
10553 (hereinafter to as "Buyer")
State referred
Zip code
Econo-Pak Contract - Service 24/7/365 Provides coverage for PARTS AND
Heating Emergency
LABOR on repairs and replacements of applicable equipment for the purposes of heating including
*Main Zone Circulator and Thermostat *Oil Burner *Primary Relay *Oil Line Filter *Aquastats *Limit
Controls *Blower Motor Assembly *Gauge Glass *Hand Feed Valve *Low Water Cut Off *Pop Safety
*Flo-Valve *Zone Valve *Smoke Pipe, and *Barometric Draft regulator *System Checkup. Coverage for
Main Zone Only. Additional options selected cover PARTS & LABOR.
U 219.00
Water Steam Air $
O -
Big-Pak Heating Contract Emergency Service 24/7/365 Provides coverage for PARTS AND
LABOR, on repairs or replacement of applicable equipment for the purposes of heating including
*Boiler/Furnace *Oil Burner *Barometric Draft Regulator *One 275 Gallon Accessible Oil Tank *Main
Zone Circulator and Thermostat *Combustion Chamber *Expansion Tank *Oil Line Filter *Aquastats
*Limit Controls *Primary Relay and *System Checkup. Coverage for Main Zone Only. Additional options
selected cover PARTS & LABOR.
¡ Water ¡ Steam O Air
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Additional Options - Check all that -
Apply
O Additional Zones (Thermostat, Circulator, Flow & Quantity @$ Each
Zones Valves)
O Pool Heater (Burner, Primary Controls, and Limit Controls $
Only)
O Blower for Duct Coils (Not Including Coil) $
O System (included in Big Pak & Econo $
Checkup Pak)
O 275 Accessible Oil Tank (Included in Big Pak) Quantity @$ Each $
O Other - Quantity @$ Each $
Sub-Total: $
Deposit: O Cash Check O Credit Card Rental Delivery Deposit: $ Tax: $
CC# / Total Annual Charge: $
Exp
Name on Card: Deposit: $
Card Type: O Visa O MasterCard O Discover O Amex Balance to be billed: $ 219
O AUTOPAY: I authorize SLOMIN'S, INC. to automatically charge the credit card/checking account shown below
for all deliveries due under this contract. This automatic debit shall continue for the full term of this agreement
and any renewal periods. Select the option below:
O Credit Card: Card Type: O Visa O MasterCard O Discover O Amex
Name on Card: Signature
(Print)
Credit Card # Expiration Date: / CVV2:
Electronic Check: or Savings Name on Bank Account
Checking (C/S)
(please print)
Bank Routing # Bank Account #
(nine numbers on bottom left of check) (directly next to routing number)
1. If Big Pak coverage is selected, and it becomes necessary to replace the boiler, hot water coil, radiators,
baseboard, and piping, coverage applies only in the case of leakage from normal use. One floor positioned steel
boiler will be supplied for the BTU requirements of the existing structure up to 210,000 BTU; any unit required
above 210,000 BTU will be billed.
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2. If warm air furnace coverage is selected, and it becomes necessary to replace the furnace, the Buyer agrees
to pay $700 plus an additional $5 for each 1000 BTUs in excess of 85,000 BTUs. If WARM AIR BLOWER
coverage is selected, the coverage only applies in case of blower failure from normal use during the heating
system between October 15 to April 15.
3. If STEAM BOlLER coverage is selected, and it becomes necessary to replace the boiler, the Buyer agrees to
pay SLOMIN'S standard price for labor and material to replace the boiler, less a discount of 25%
4. If 275 GALLON OlL TANK coverage
is selected, this contract provides for the repair or replacement of ONE
275 GALLON OIL TANK in case of leakage
from normal use. If it becomes necessary to repair or replace a buried
or otherwise inaccessible tank or a tank larger than 275 gallons, the Buyer agrees to pay SLOMIN'S standard price
for labor and material less a discount of 25% (minimum discount - $100).
5. Hours of Service; Emergency Services: SLOMIN'S hours for Non-Emergency service calls shall be Monday
through Friday, 8:00AM to 5:00PM excluding nationally recognized religious and political holidays. Emergency
Service will be performed 24 hours a day, 365 days a year and shall include only instances where a no heat, water
leak, soot, smoke, or oil leak complaint has been lodged with SLOMIN'S. All other conditions shall be considered
non-emergency, or routine in nature. Buyer agrees to pay a $100 surcharge for all Non-Emergency calls where
Buyer specifically requested response outside of normal business hours defined herein. Buyer agrees to pay a
$100 surcharge on any service requests under the classification of an emergency, which after inspection by
SLOMIN'S, has been determined by SLOMIN'S in its sole discretion to have been misrepresented by the Buyer. If
SLOMIN'S determines, in its sole discretion, that a condition or event of which SLOMIN'S becomes aware requires
the notification, interventionor engagement of a third party (including a third party emergency service), to preserve
the health and safety of persons or use of property, SLOMIN'S is hereby authorized to notify and/or engage such
third parties on Buyer's behalf. Buyer agrees to pay or reimburse, as applicable, all costs and expenses incurred in
connection with such third party services and expressly acknowledges and agrees that SLOMIN'S is under no
obligation to pay any such costs for the engagement of such third parties. SLOMIN'S reserves the right to request
reimbursement from Buyer in the event that SLOMIN'S pays or fronts any such costs solely in the interests of
exigency.
6. Term of Agreement, Renewal Increase: The term of this agreement shall be for a period of ONE YEAR and
shall automatically renew each year thereafter under the same terms and conditions, unless either party gives
written notice to the other by certified mail, return receipt requested, of their intention not to renew the contract at
least 30 days prior to the expiration of any term. SLOMIN'S shall be permitted to increase the charge by an
amount not to exceed eight (8) percent each year and Buyer agrees to pay such increase as invoiced. SLOMIN'S
reserves the right to reject this agreement after inspection of the oil tank and heating system.
7. Professional Recommendation: SLOMIN'S reserves the right to suspend coverage on any equipment that
SLOMIN'S determines to be irreparable, or otherwise in need of replacement. SLOMIN'S will make the Buyer
aware of the suspension of coverage verbally at the time of diagnosis. Further calls required on aforementioned
equipment shall be billed at SLOMIN'S then prevailing time and material rates in addition to any applicable
charges. SLOMIN'S shall have no obligation to repair or replace any equipment that, in SLOMIN'S sole discretion,
is obsolete or irreparable.
8. Buyer's responsibility to facilitate service: SLOMIN'S abilities to fulfill service obligations under the terms of
this contract are dependent on the Buyer's performance
providing accurate information for diagnosis and access to
equipment. Buyer agrees to pay SLOMIN'S then prevailing rate plus any applicable charges for recuperation of
losses resulting from SLOMIN'S response to service requests based on misinformation or misrepresentation as to
the nature, cause, corrections, severity or other pertinent factors directly or indirectly contributing to service
requests and SLOMIN'S response thereto.
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/30/2024
9. This agreement does not include: A- Parts or labor required as a result of abnormal conditions such as water
damage, fire, flood, freezing, hurricane
or other acts of god, power interruptions, insufficient water, or responsibility
for secondary damage or for loss or damage resulting from delays or failure to render service due to conditions
beyond SLOMIN'S control. B- Boiler, hot water tanks, hot water coil, expansion tanks, extrol tanks, oil fill pipes and
vent alarms, radiators, radiator valves, baseboard, piping, plumbing, cooling equipment, household electrical
wiring, motorized dampers, plate-type humidifiers, registers, ductwork, chimneys or chimney liners unless
selected as optional coverage. C- expressed or implied as to the ability of the system to
specifically Any guarantee
supply the heat or the hot water required. D- or piping that is not fully accessible. E- Service
Any equipment
required as a result of Buyer's failure to replace fuses, reset circuit breakers, set thermostats properly, turn on
emergency switch, open flow valve, bleed air, oil equipment, drain expansion tank. Buyer agrees to pay SLOMIN'S
then prevailing rate for service rendered as a result of any of the aforementioned causes. F- Cleaning of baseboard
or ducts. G- Service required, or damage resulting from operating an attic fan. NOTE: simultaneous operating attic
fan and oil bumer can cause the oil burner to malfunction. H- Hot water heater burner and controls and hot water
tanks unless specifically provided herein. If this agreement provides for oil tank coverage, the coverage applies
only in the case of leakage from normal use but in any event, SLOMIN'S shall not be liable for damage caused by
leakage of any kind. l- Removal of any asbestos material. J-
Any domestic water piping regardless of relation or
proximity to heating equipment. SLOMIN'S reserves the right to suspend coverage on any equipment that
SLOMIN'S determines to be irreparable, or otherwise in need of replacement. SLOMIN'S will make the Buyer
aware of the suspension of coverage verbally at the time of diagnosis. Further calls required on aforementioned
equipment shall be billed at SLOMIN'S then prevailing time and material rates in addition to any applicable
charges. SLOMIN'S shall have no obligation to repair or replace any equipment that, in SLOMIN'S sole discretion,
is obsolete or irreparable.
10. Delivery requirements/Automatic renewal: All Buyer's fuel oil requirements must be purchased from
SLOMIN'S during the term of this agreement under the automatic delivery system and paid for within 10 days from
the date of each delivery. Minimum annual purchase is 400 gallons. Buyer agrees to pay SLOMIN'S then prevailing
rate plus any applicable charges for service required to Vent Alarms or other such fill/vent devices. SLOMIN'S does
not assume or accept any responsibility to provide prior notification to Buyer of oil deliveries, including but not
limited to scheduled date or time, or call before. SLOMIN'S is permitted, without notice to Buyer, to suspend or
terminate all services under this contract if the Buyer is in arrears with regard to any monies due SLOMIN'S
whether such monies relate to billing for this contract, installation of equipment or oil deliveries or any other
services supplied by SLOMIN'S to Buyer under other contracts. This contract will automatically renew on the
expiration date for successive annual periods at SLOMIN'S then prevailing rate under the same terms and
conditions unless either party notifies the other in writing at least 30 days prior to any renewal date that the party
does not intend to renew. In the event this contract is cancelled and reinstated, Buyer agrees to pay a
reinstatement fee equal to 35% of the annual contract price.
11. System Checkup: System Checkup option is offered on the first page of this contract as an inclusion in the
Econo Pak
& Big Pak, or an additional option on other service levels, and can be purchased at SLOMIN'S then
prevailing rate. If optional coverage has been selected, the Buyer may request one checkup per year, to be
performed at SLOMIN'S sole discretion, between the months of April and September during normal weekday hours
8AM to 5PM. Buyer retains the right to schedule a System Checkup at any point, regardless of SLOMIN'S
prescribed criteria; for an additional charge equal to the then prevailing time and materiai rates, plus any applicable
charges, fees, or surcharges.
12. Fair Credit Reporting Act/Credit Authorization: In compliance with the Fair Credit Reporting Act ("FCRA"),
Buyer hereby authorizes SLOMIN'S to obtain a consumer credit report. Buyer has the right, by contacting the
provider of this information, to dispute the information on the report or request additional disclosures as provided
under Section 606 of the FCRA. Written request must be given from the Buyer to SLOMIN'S to request additional
credit information. Buyer releases all persons involved in the credit investigation from liability in connection with
such investigation. Buyer authorizes any credit reporting agency to furnish credit information to SLOMIN'S during
the term of this contract or any subsequent renewal term of this contract.
13. Credit Default: Buyer agrees to pay all invoices rendered by SLOMIN'S within ten (10) days of their date. If
Buyer is late in payment, Buyer agrees to pay a finance charge of 1½% per month on the outstanding balance until
paid. SLOMIN'S shall be entitled to recover legal fees if Buyer's account is referred to our attorneys for collection.
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14. Liability: SLOMIN'S IS NOT RESPONSIBLE FOR DAMAGES OR LOSS CAUSED FOR FAILURE TO MAKE
A DELIVERY, OR OTHER CONDITIONS, WHICH MAY ARISE AND PREVENT THE OPERATION OF THE
HEATING SYSTEM. SLOMIN'S SHALL NOT BE HELD RESPONSIBLE FOR FAILURE TO MAKE A DELlVERY
DUE TO SHORTAGES, STRIKES, FORCE MAJEURE, OR CONDITIONS BEYOND SLOMIN'S CONTROL.
BUYER IS RESPONSIBLE TO PROVIDE SUPPLEMENTAL HEAT OR TAKE STEPS TO PREVENT FREEZE-UP
IN THE EVENT OF HEATING SYSTEM FAILURE, AND TO MONITOR PREMISES AND ENSURE PROPER
TEMPERATURES ARE MAINTAINED. SLOMIN'S WILL ATTEMPT TO MAINTAIN AN ADEQUATE FUEL LEVEL
IN BUYER'S TANK WHEN ON AUTOMATIC DELIVERY BASED ON PREVlOUS USAGE. SINCE CHANGES IN
USAGE AND WEATHER FACTORS CANNOT BE ANTICIPATED, SLOMIN'S WILL NOT BE RESPONSIBLE FOR
DAMAGES DUE TO FUEL TANK RUN-OUTS. IT IS BUYER'S RESPONSIBILITY TO CHECK FUEL TANK WHEN
THE CONSUMPTION HAS CHANGED AND TO NOTIFY SLOMIN'S. WHILE AN OIL SPILL SHOULD NOT
OCCUR BEFORE, DURING, OR AFTER DELIVERY WITH A PROPERLY DESIGNED AND FUNCTIONING OIL
TANK, SLOMIN'S DOES NOT GUARANTEE THAT NO SPILL WILL OCCUR.
15. Limitation of Liability: BUYER AGREES, THAT SHOULD THERE ARISE ANY LIABILITY ON THE PART
OF SLOMIN'S AS A RESULT OF SLOMIN'S BREACH OF THIS CONTRACT, NEGLIGENT PERFORMANCE
TO ANY DEGREE, OR NEGLIGENT FAILURE TO PERFORM ANY OF SLOMIN'S OBLIGATIONS PURSUANT
TO THIS AGREEMENT OR ANY OTHER LEGAL DUTY, EQUIPMENT FAILURE, HUMAN ERROR, OR STRICT
PRODUCTS LIABILITY, WHETHER ECONOMIC OR NON-ECONOMIC, IN CONTRACT OR IN TORT, THAT
SLOMIN'S LIABILITY SHALL BE LIMITED TO THE SUM OF $250. IF BUYER WISHES TO INCREASE
SLOMIN'S AMOUNT OF LIMITATION OF LIABILITY, BUYER MAY, AS A MATTER OF RIGHT, AT ANY TIME,
BY ENTERING INTO A SUPPLEMENTAL AGREEMENT, OBTAIN A HIGHER LIMIT BY PAYlNG AN ANNUAL
PAYMENT CONSONANT WITH SLOMIN'S INCREASED LIABILITY. THIS SHALL NOT BE CONSTRUED AS
INSURANCE COVERAGE.
16. Exculpatory Clause: SLOMIN'S AND BUYER AGREE THAT SLOMIN'S IS NOT AN INSURER AND NO
INSURANCE COVERAGE IS OFFERED HEREIN, SLOMIN'S IS NOT ASSUMING LIABILITY, AND,
THEREFORE, SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS, ECONOMIC OR
NON-ECONOMIC, IN CONTRACT OR IN TORT, PERSONAL INJURY OR PROPERTY DAMAGE SUSTAINED
BY BUYER OR OTHERS AS A RESULT OF OlL SPILLS, ODORS, FIRE, EQUIPMENT FAILURE, TANK
FAILURE, LEAKS, SMOKE, VAPORS, FAILURE OF HEAT OR AIR CONDITIONING OR ANY OTHER CAUSE,
WHATSOEVER, REGARDLESS OF WHETHER OR NOT SUCH LOSS OR DAMAGE WAS CAUSED BY OR
CONTRIBUTED TO BY SLOMIN'S NEGLIGENT PERFORMANCE TO ANY DEGREE IN FURTHERANCE OF
THIS AGREEMENT, ANY EXTRA CONTRACTUAL OR LEGAL DUTY, STRICT PRODUCTS LIABILITY, OR
NEGLIGENT FAILURE TO PERFORM ANY OBLIGATION PURSUANT TO THIS AGREEMENT OR ANY OTHER
LEGAL DUTY.
17. Indemnity/Waiver Of
Subrogation Rights/Assignments: Buyer agrees to defend, advance expenses for
litigation and arbitration,
including investigation, legal and expert witness fees, indemnify and hold harmless
SLOMIN'S, its employees, agents and subcontractors, from and against all claims, lawsuits, including those
attorneys'
brought by third-parties or by Buyer, including reasonable fees and losses, asserted against and alleged
SLOMIN'S'
to be caused by performance, negligence or failure to perform any obligation under or in furtherance of
this agreement. Parties agree that there are no third-party beneficiaries of this agreement. Buyer on its behalf and
Buyer'
any insurance carrier waives any right of subrogation insurance carrier may otherwise have against
SLOMIN'S'
SLOMIN'S or subcontractors arising out of this agreement or the relation of the parties hereto. Buyer
shall not be permitted to assign this agreement without written consent of SLOMIN'S, which shall not unreasonably
be withheld. SLOMIN'S shall have the right to assign this agreement to a company licensed to perform the services
and shall be relieved of any obligations herein upon such assignment
BUYER ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS INDEMNITY, EXCULPATORY CLAUSE AND
LIMITATION OF LIABILITY PROVISIONS.
Buyer to Initial: Hg
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18. LEGAL ACTION / BREACH / AGREEMENT TO BINDING ARBITRATION: In the event SLOMIN'S institutes
legal action or arbitration to recover any amounts owed by Buyer to SLOMIN'S the parties agree that the amount to
be recovered, and any judgment to be entered, shall include interest at the rate of 1.25% per month from the date
payment is due and until paid and such interest shall be included in and shall survive the entry of judgment.
BUYER AGREES THAT BUYER MAY BRING CLAIMS AGAINST SLOMIN'S ONLY IN BUYER'S INDIVIDUAL
CAPACITY AND NOT AS A CLASS ACTION PLAINTIFF OR CLASS ACTION MEMBER IN ANY PURPORTED
CLASS OR REPRESENTATIVE PROCEEDING. ANY DISPUTE BETWEEN THE PARTIES OR ARISING OUT OF
THIS AGREEMENT, INCLUDING ISSUES OF ARBITRABILITY, SHALL, AT THE OPTION OF ANY PARTY, BE
DETERMINED BY BINDING AND FINAL ARBITRATION BEFORE A SINGLE ARBITRATOR ADMINISTERED BY
ARBITRATION SERVICES
INC., ITS SUCCESSORS OR ASSIGNS, PURSUANT TO ITS ARBITRATION RULES
AT WWW.ARBITRATIONSERVICESINC.COM AND THE FEDERAL ARBITRATION ACT, EXCEPT THAT NO
PUNITIVE OR CONSEQUENTIAL DAMAGES MAY BE AWARDED. The arbitrator shall be bound by the terms of
this agreement and is authorizedto conduct proceedings by telephone, video or by submission of papers. Service
of process or papers in any legal proceeding or arbitration between the parties may be made by Postage Pre-paid
First-Class Mail delivered by the U.S. Postal Service addressed to: If to SLOMIN'S, SLOMIN'S Inc. c/o Legal
Department, 125 Lauman Lane, Hicksville, NY 11801; if to the Buyer, the Buyer address set forth in this
agreement or another address
provided by the Buyer in writing to SLOMIN'S. Buyer submits to the jurisdiction of
New York, venue in Nassau County, New York and agrees that this agreement shall be interpreted and enforced in
accordance with the laws of New York, except for arbitration which is governed by the FAA. The parties waive trial
by jury in any action between them unless prohibited by law and in any action commenced by SLOMIN'S against
Buyer, Buyer shall not be permitted to interpose any counterclaim. The prevailing party in any litigation or
arbitration is entitled to recover its reasonable legal fees from the other party. Any action between the parties must
be commenced within one year of the accrual of the cause of action or shall be barred. All actions or proceedings
by either party must be based on the provisions of this agreement and any other claim or cause of action that
Buyer may have or bring against SLOMIN'S in respect to other services rendered in connection with or in
furtherance of this agreement shall be deemed to have merged in and be restricted to the terms and conditions of
this agreement, and the consent to arbitrate and other provisions of this paragraph shall survive the termination of
this agreement.
BUYER ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE
DISPUTES AND THAT ARBITRATION IS BINDING AND FINAL AND THAT BUYER IS WAlVING BUYER'S
RIGHT TO TRIAL IN A COURT OF
LAW, A JURY TRIAL AND THE RIGHT TO COUNTERCLAIM IN ANY
ACTION OR ARBITRATION COMMENCED BY SLOMIN'S, AND OTHER RIGHTS.
Buyer to Initial: Hg
19. SLOMIN'S Right to Subcontract Services: Buyer agrees that SLOMIN'S is authorized and permitted to
subcontract any services to be provided by SLOMIN'S to third parties who may be independent of SLOMIN'S, and
that SLOMIN'S shall not be liable for any loss or damage sustained by Buyer by reason of fire, theft, burglary any
other cause whatsoever caused by the negligence of third parties. Buyer appoints SLOMIN'S to act as the Buyer's
agent with respect to such thirdparties, except that SLOMIN'S shall not obligate Buyer to make any payments to
such third parties. Buyer acknowledges that thisagreement, and particularly those paragraphs relating to
SLOMIN'S exemption of liability, even for its negligence, limitation of liability and indemnification, inure to the
benefit of and are applicable to any assignees, subcontractors, manufacturers, and vendors of SLOMIN'S.
20. Full Agreement/Severability: This agreement constitutes the full understanding of the parties and may not be
amended, modified or cancelled, except in writing signed by both parties. Buyer acknowledges and represents that
Buyer has not relied on any representation, assertion, guarantee, warranty, collateral agreement or other
assurance, except those set forth in this agreement. Buyer hereby waives all rights and remedies, at law or in
equity, arising, or which may arise, as the result of Buyer's reliance on such representation, assertion, guarantee,
warranty, collateral agreement or other assurance. To the extent this agreement is inconsistent with any other
document or agreement, whether executed prior to, concurrently with or subsequent to this agreement, the terms of
this agreement shall govern. The agreement shall run concurrently with and shall not terminate or supersede any
existing agreement between the parties unless specified herein. Should any provision of this agreement be
deemed void, the remaining parts shall be enforceable. SLOMIN'S does not guarantee Buyer will receive credits or
rebates offered by any manufacturer, government program or utility company. SLOMIN'S, reserves the right to
cease fuel deliveries and service without notice, if unable to perform or Buyer is delinquent on payments.
SLOMIN'S reserves the right to reject this agreement after inspection of the heating system.
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FILED: WESTCHESTER COUNTY CLERK 01/30/2024 12:32 PM INDEX NO. 68181/2023
NYSCEF DOC. NO. 5
Preview
FILED: WESTCHESTER COUNTY CLERK 01/30/2024 12:32 PM INDEX NO. 68181/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/30/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ___________________________________________________________Ç SLOMIN'S, INC. PLAINTIFF, INDEX NUMBER 68181/2023 -AGAINST- FILE NO. 302136 HURBERT GRIFFITHS AFFIDAVIT OF FACTS DEFENDANT. -__________________________________________________________Ç STATE OF ) COUNTY OF L.5 A ) , being duly sworn, deposes and says that: 1. I am an emplo of Plaintiff, and as such I have personal knowledge of and access to Plaintiffs books and records ("Business Records"), including electronic records, relating to the account ("Account") of HURBERT GRIFFITHS ("Defendant"). I also have personal knowledge of Plaintiffs procedures for creating and maintaining its Business Records. Plaintiffs Business Records were made in the regular course of business, and it was the regular course of such business to make the Business Records. The records were made at or near the time of the events recorded. Based on my review of Plaintiffs Business Records, I have personal knowledge of the facts set forth in this affidavit. 2. Plaintiff, at the request of defendant(s), provided work, labor, services and/or goods to the Defendant. 3. Plaintiff duly performed all conditions on its part. 4. On and after February 4, 2023, Defendant(s) failed and refused to fully pay for the work, labor, services and/or goods provided, despite due demand therefor. 5. That the just and true principal balance due and owing to Plaintiff by the Defendant(s) as of December 29, 2023 is $1,542.56 6. As set forth in New York CPLR Article 50, the interest rate applicable to the Account pursuant to section five thousand four of this chapter applies. Name: The foregoing instrument was subscribed and sworn to before me this Îk day of ut , 20 , by NotEn PuMc. S ate of New York No. 01816295943 N ry Publ 1 of 14 FILED: WESTCHESTER COUNTY CLERK 01/30/2024 12:32 PM INDEX NO. 68181/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/30/2024 24 Hours / 365 Days Emergency Service .-----.-m------------mn-----nmmuamamuman--K,mammamom------ans--mum-u---mum--an------- 191 HMimimi MadhdSlall-lHEiBMlmi IliHmm-Mmmlaglll:ilmHMMilmmMM!milmlMINImdlM-MMHMW-NMl-MINIlmlMIMIMMImill“1mWMMieRMMlMMhlmlaRMMMM8HM1MERME Account No.: 9790148 379W 052020 Oil Heating Service Plans Email Hurbert griffiths (646) 491-3514 Buyer Name: Phone By providing the phone number(s) I expressly consent to autodialed calls and text messages from SLOMIN'S, including informational, emergency, marketing and promotional autodialed calls, at phone number(s) provided. Hurbert griffiths (Buyers Signature) O By checking this box I hereby opt out of receiving marketing and promotional calls (including but not limited to autodialed marketing and promotional calls) from SLOMIN'S. 69 DELL AVE MOUNT VERNON Address Te 10553 (hereinafter to as "Buyer") State referred Zip code Econo-Pak Contract - Service 24/7/365 Provides coverage for PARTS AND Heating Emergency LABOR on repairs and replacements of applicable equipment for the purposes of heating including *Main Zone Circulator and Thermostat *Oil Burner *Primary Relay *Oil Line Filter *Aquastats *Limit Controls *Blower Motor Assembly *Gauge Glass *Hand Feed Valve *Low Water Cut Off *Pop Safety *Flo-Valve *Zone Valve *Smoke Pipe, and *Barometric Draft regulator *System Checkup. Coverage for Main Zone Only. Additional options selected cover PARTS & LABOR. U 219.00 Water Steam Air $ O - Big-Pak Heating Contract Emergency Service 24/7/365 Provides coverage for PARTS AND LABOR, on repairs or replacement of applicable equipment for the purposes of heating including *Boiler/Furnace *Oil Burner *Barometric Draft Regulator *One 275 Gallon Accessible Oil Tank *Main Zone Circulator and Thermostat *Combustion Chamber *Expansion Tank *Oil Line Filter *Aquastats *Limit Controls *Primary Relay and *System Checkup. Coverage for Main Zone Only. Additional options selected cover PARTS & LABOR. ¡ Water ¡ Steam O Air 2 of 14 FILED: WESTCHESTER COUNTY CLERK 01/30/2024 12:32 PM INDEX NO. 68181/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/30/2024 Additional Options - Check all that - Apply O Additional Zones (Thermostat, Circulator, Flow & Quantity @$ Each Zones Valves) O Pool Heater (Burner, Primary Controls, and Limit Controls $ Only) O Blower for Duct Coils (Not Including Coil) $ O System (included in Big Pak & Econo $ Checkup Pak) O 275 Accessible Oil Tank (Included in Big Pak) Quantity @$ Each $ O Other - Quantity @$ Each $ Sub-Total: $ Deposit: O Cash Check O Credit Card Rental Delivery Deposit: $ Tax: $ CC# / Total Annual Charge: $ Exp Name on Card: Deposit: $ Card Type: O Visa O MasterCard O Discover O Amex Balance to be billed: $ 219 O AUTOPAY: I authorize SLOMIN'S, INC. to automatically charge the credit card/checking account shown below for all deliveries due under this contract. This automatic debit shall continue for the full term of this agreement and any renewal periods. Select the option below: O Credit Card: Card Type: O Visa O MasterCard O Discover O Amex Name on Card: Signature (Print) Credit Card # Expiration Date: / CVV2: Electronic Check: or Savings Name on Bank Account Checking (C/S) (please print) Bank Routing # Bank Account # (nine numbers on bottom left of check) (directly next to routing number) 1. If Big Pak coverage is selected, and it becomes necessary to replace the boiler, hot water coil, radiators, baseboard, and piping, coverage applies only in the case of leakage from normal use. One floor positioned steel boiler will be supplied for the BTU requirements of the existing structure up to 210,000 BTU; any unit required above 210,000 BTU will be billed. 3 of 14 FILED: WESTCHESTER COUNTY CLERK 01/30/2024 12:32 PM INDEX NO. 68181/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/30/2024 2. If warm air furnace coverage is selected, and it becomes necessary to replace the furnace, the Buyer agrees to pay $700 plus an additional $5 for each 1000 BTUs in excess of 85,000 BTUs. If WARM AIR BLOWER coverage is selected, the coverage only applies in case of blower failure from normal use during the heating system between October 15 to April 15. 3. If STEAM BOlLER coverage is selected, and it becomes necessary to replace the boiler, the Buyer agrees to pay SLOMIN'S standard price for labor and material to replace the boiler, less a discount of 25% 4. If 275 GALLON OlL TANK coverage is selected, this contract provides for the repair or replacement of ONE 275 GALLON OIL TANK in case of leakage from normal use. If it becomes necessary to repair or replace a buried or otherwise inaccessible tank or a tank larger than 275 gallons, the Buyer agrees to pay SLOMIN'S standard price for labor and material less a discount of 25% (minimum discount - $100). 5. Hours of Service; Emergency Services: SLOMIN'S hours for Non-Emergency service calls shall be Monday through Friday, 8:00AM to 5:00PM excluding nationally recognized religious and political holidays. Emergency Service will be performed 24 hours a day, 365 days a year and shall include only instances where a no heat, water leak, soot, smoke, or oil leak complaint has been lodged with SLOMIN'S. All other conditions shall be considered non-emergency, or routine in nature. Buyer agrees to pay a $100 surcharge for all Non-Emergency calls where Buyer specifically requested response outside of normal business hours defined herein. Buyer agrees to pay a $100 surcharge on any service requests under the classification of an emergency, which after inspection by SLOMIN'S, has been determined by SLOMIN'S in its sole discretion to have been misrepresented by the Buyer. If SLOMIN'S determines, in its sole discretion, that a condition or event of which SLOMIN'S becomes aware requires the notification, interventionor engagement of a third party (including a third party emergency service), to preserve the health and safety of persons or use of property, SLOMIN'S is hereby authorized to notify and/or engage such third parties on Buyer's behalf. Buyer agrees to pay or reimburse, as applicable, all costs and expenses incurred in connection with such third party services and expressly acknowledges and agrees that SLOMIN'S is under no obligation to pay any such costs for the engagement of such third parties. SLOMIN'S reserves the right to request reimbursement from Buyer in the event that SLOMIN'S pays or fronts any such costs solely in the interests of exigency. 6. Term of Agreement, Renewal Increase: The term of this agreement shall be for a period of ONE YEAR and shall automatically renew each year thereafter under the same terms and conditions, unless either party gives written notice to the other by certified mail, return receipt requested, of their intention not to renew the contract at least 30 days prior to the expiration of any term. SLOMIN'S shall be permitted to increase the charge by an amount not to exceed eight (8) percent each year and Buyer agrees to pay such increase as invoiced. SLOMIN'S reserves the right to reject this agreement after inspection of the oil tank and heating system. 7. Professional Recommendation: SLOMIN'S reserves the right to suspend coverage on any equipment that SLOMIN'S determines to be irreparable, or otherwise in need of replacement. SLOMIN'S will make the Buyer aware of the suspension of coverage verbally at the time of diagnosis. Further calls required on aforementioned equipment shall be billed at SLOMIN'S then prevailing time and material rates in addition to any applicable charges. SLOMIN'S shall have no obligation to repair or replace any equipment that, in SLOMIN'S sole discretion, is obsolete or irreparable. 8. Buyer's responsibility to facilitate service: SLOMIN'S abilities to fulfill service obligations under the terms of this contract are dependent on the Buyer's performance providing accurate information for diagnosis and access to equipment. Buyer agrees to pay SLOMIN'S then prevailing rate plus any applicable charges for recuperation of losses resulting from SLOMIN'S response to service requests based on misinformation or misrepresentation as to the nature, cause, corrections, severity or other pertinent factors directly or indirectly contributing to service requests and SLOMIN'S response thereto. 4 of 14 FILED: WESTCHESTER COUNTY CLERK 01/30/2024 12:32 PM INDEX NO. 68181/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/30/2024 9. This agreement does not include: A- Parts or labor required as a result of abnormal conditions such as water damage, fire, flood, freezing, hurricane or other acts of god, power interruptions, insufficient water, or responsibility for secondary damage or for loss or damage resulting from delays or failure to render service due to conditions beyond SLOMIN'S control. B- Boiler, hot water tanks, hot water coil, expansion tanks, extrol tanks, oil fill pipes and vent alarms, radiators, radiator valves, baseboard, piping, plumbing, cooling equipment, household electrical wiring, motorized dampers, plate-type humidifiers, registers, ductwork, chimneys or chimney liners unless selected as optional coverage. C- expressed or implied as to the ability of the system to specifically Any guarantee supply the heat or the hot water required. D- or piping that is not fully accessible. E- Service Any equipment required as a result of Buyer's failure to replace fuses, reset circuit breakers, set thermostats properly, turn on emergency switch, open flow valve, bleed air, oil equipment, drain expansion tank. Buyer agrees to pay SLOMIN'S then prevailing rate for service rendered as a result of any of the aforementioned causes. F- Cleaning of baseboard or ducts. G- Service required, or damage resulting from operating an attic fan. NOTE: simultaneous operating attic fan and oil bumer can cause the oil burner to malfunction. H- Hot water heater burner and controls and hot water tanks unless specifically provided herein. If this agreement provides for oil tank coverage, the coverage applies only in the case of leakage from normal use but in any event, SLOMIN'S shall not be liable for damage caused by leakage of any kind. l- Removal of any asbestos material. J- Any domestic water piping regardless of relation or proximity to heating equipment. SLOMIN'S reserves the right to suspend coverage on any equipment that SLOMIN'S determines to be irreparable, or otherwise in need of replacement. SLOMIN'S will make the Buyer aware of the suspension of coverage verbally at the time of diagnosis. Further calls required on aforementioned equipment shall be billed at SLOMIN'S then prevailing time and material rates in addition to any applicable charges. SLOMIN'S shall have no obligation to repair or replace any equipment that, in SLOMIN'S sole discretion, is obsolete or irreparable. 10. Delivery requirements/Automatic renewal: All Buyer's fuel oil requirements must be purchased from SLOMIN'S during the term of this agreement under the automatic delivery system and paid for within 10 days from the date of each delivery. Minimum annual purchase is 400 gallons. Buyer agrees to pay SLOMIN'S then prevailing rate plus any applicable charges for service required to Vent Alarms or other such fill/vent devices. SLOMIN'S does not assume or accept any responsibility to provide prior notification to Buyer of oil deliveries, including but not limited to scheduled date or time, or call before. SLOMIN'S is permitted, without notice to Buyer, to suspend or terminate all services under this contract if the Buyer is in arrears with regard to any monies due SLOMIN'S whether such monies relate to billing for this contract, installation of equipment or oil deliveries or any other services supplied by SLOMIN'S to Buyer under other contracts. This contract will automatically renew on the expiration date for successive annual periods at SLOMIN'S then prevailing rate under the same terms and conditions unless either party notifies the other in writing at least 30 days prior to any renewal date that the party does not intend to renew. In the event this contract is cancelled and reinstated, Buyer agrees to pay a reinstatement fee equal to 35% of the annual contract price. 11. System Checkup: System Checkup option is offered on the first page of this contract as an inclusion in the Econo Pak & Big Pak, or an additional option on other service levels, and can be purchased at SLOMIN'S then prevailing rate. If optional coverage has been selected, the Buyer may request one checkup per year, to be performed at SLOMIN'S sole discretion, between the months of April and September during normal weekday hours 8AM to 5PM. Buyer retains the right to schedule a System Checkup at any point, regardless of SLOMIN'S prescribed criteria; for an additional charge equal to the then prevailing time and materiai rates, plus any applicable charges, fees, or surcharges. 12. Fair Credit Reporting Act/Credit Authorization: In compliance with the Fair Credit Reporting Act ("FCRA"), Buyer hereby authorizes SLOMIN'S to obtain a consumer credit report. Buyer has the right, by contacting the provider of this information, to dispute the information on the report or request additional disclosures as provided under Section 606 of the FCRA. Written request must be given from the Buyer to SLOMIN'S to request additional credit information. Buyer releases all persons involved in the credit investigation from liability in connection with such investigation. Buyer authorizes any credit reporting agency to furnish credit information to SLOMIN'S during the term of this contract or any subsequent renewal term of this contract. 13. Credit Default: Buyer agrees to pay all invoices rendered by SLOMIN'S within ten (10) days of their date. If Buyer is late in payment, Buyer agrees to pay a finance charge of 1½% per month on the outstanding balance until paid. SLOMIN'S shall be entitled to recover legal fees if Buyer's account is referred to our attorneys for collection. 5 of 14 FILED: WESTCHESTER COUNTY CLERK 01/30/2024 12:32 PM INDEX NO. 68181/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/30/2024 14. Liability: SLOMIN'S IS NOT RESPONSIBLE FOR DAMAGES OR LOSS CAUSED FOR FAILURE TO MAKE A DELIVERY, OR OTHER CONDITIONS, WHICH MAY ARISE AND PREVENT THE OPERATION OF THE HEATING SYSTEM. SLOMIN'S SHALL NOT BE HELD RESPONSIBLE FOR FAILURE TO MAKE A DELlVERY DUE TO SHORTAGES, STRIKES, FORCE MAJEURE, OR CONDITIONS BEYOND SLOMIN'S CONTROL. BUYER IS RESPONSIBLE TO PROVIDE SUPPLEMENTAL HEAT OR TAKE STEPS TO PREVENT FREEZE-UP IN THE EVENT OF HEATING SYSTEM FAILURE, AND TO MONITOR PREMISES AND ENSURE PROPER TEMPERATURES ARE MAINTAINED. SLOMIN'S WILL ATTEMPT TO MAINTAIN AN ADEQUATE FUEL LEVEL IN BUYER'S TANK WHEN ON AUTOMATIC DELIVERY BASED ON PREVlOUS USAGE. SINCE CHANGES IN USAGE AND WEATHER FACTORS CANNOT BE ANTICIPATED, SLOMIN'S WILL NOT BE RESPONSIBLE FOR DAMAGES DUE TO FUEL TANK RUN-OUTS. IT IS BUYER'S RESPONSIBILITY TO CHECK FUEL TANK WHEN THE CONSUMPTION HAS CHANGED AND TO NOTIFY SLOMIN'S. WHILE AN OIL SPILL SHOULD NOT OCCUR BEFORE, DURING, OR AFTER DELIVERY WITH A PROPERLY DESIGNED AND FUNCTIONING OIL TANK, SLOMIN'S DOES NOT GUARANTEE THAT NO SPILL WILL OCCUR. 15. Limitation of Liability: BUYER AGREES, THAT SHOULD THERE ARISE ANY LIABILITY ON THE PART OF SLOMIN'S AS A RESULT OF SLOMIN'S BREACH OF THIS CONTRACT, NEGLIGENT PERFORMANCE TO ANY DEGREE, OR NEGLIGENT FAILURE TO PERFORM ANY OF SLOMIN'S OBLIGATIONS PURSUANT TO THIS AGREEMENT OR ANY OTHER LEGAL DUTY, EQUIPMENT FAILURE, HUMAN ERROR, OR STRICT PRODUCTS LIABILITY, WHETHER ECONOMIC OR NON-ECONOMIC, IN CONTRACT OR IN TORT, THAT SLOMIN'S LIABILITY SHALL BE LIMITED TO THE SUM OF $250. IF BUYER WISHES TO INCREASE SLOMIN'S AMOUNT OF LIMITATION OF LIABILITY, BUYER MAY, AS A MATTER OF RIGHT, AT ANY TIME, BY ENTERING INTO A SUPPLEMENTAL AGREEMENT, OBTAIN A HIGHER LIMIT BY PAYlNG AN ANNUAL PAYMENT CONSONANT WITH SLOMIN'S INCREASED LIABILITY. THIS SHALL NOT BE CONSTRUED AS INSURANCE COVERAGE. 16. Exculpatory Clause: SLOMIN'S AND BUYER AGREE THAT SLOMIN'S IS NOT AN INSURER AND NO INSURANCE COVERAGE IS OFFERED HEREIN, SLOMIN'S IS NOT ASSUMING LIABILITY, AND, THEREFORE, SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS, ECONOMIC OR NON-ECONOMIC, IN CONTRACT OR IN TORT, PERSONAL INJURY OR PROPERTY DAMAGE SUSTAINED BY BUYER OR OTHERS AS A RESULT OF OlL SPILLS, ODORS, FIRE, EQUIPMENT FAILURE, TANK FAILURE, LEAKS, SMOKE, VAPORS, FAILURE OF HEAT OR AIR CONDITIONING OR ANY OTHER CAUSE, WHATSOEVER, REGARDLESS OF WHETHER OR NOT SUCH LOSS OR DAMAGE WAS CAUSED BY OR CONTRIBUTED TO BY SLOMIN'S NEGLIGENT PERFORMANCE TO ANY DEGREE IN FURTHERANCE OF THIS AGREEMENT, ANY EXTRA CONTRACTUAL OR LEGAL DUTY, STRICT PRODUCTS LIABILITY, OR NEGLIGENT FAILURE TO PERFORM ANY OBLIGATION PURSUANT TO THIS AGREEMENT OR ANY OTHER LEGAL DUTY. 17. Indemnity/Waiver Of Subrogation Rights/Assignments: Buyer agrees to defend, advance expenses for litigation and arbitration, including investigation, legal and expert witness fees, indemnify and hold harmless SLOMIN'S, its employees, agents and subcontractors, from and against all claims, lawsuits, including those attorneys' brought by third-parties or by Buyer, including reasonable fees and losses, asserted against and alleged SLOMIN'S' to be caused by performance, negligence or failure to perform any obligation under or in furtherance of this agreement. Parties agree that there are no third-party beneficiaries of this agreement. Buyer on its behalf and Buyer' any insurance carrier waives any right of subrogation insurance carrier may otherwise have against SLOMIN'S' SLOMIN'S or subcontractors arising out of this agreement or the relation of the parties hereto. Buyer shall not be permitted to assign this agreement without written consent of SLOMIN'S, which shall not unreasonably be withheld. SLOMIN'S shall have the right to assign this agreement to a company licensed to perform the services and shall be relieved of any obligations herein upon such assignment BUYER ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS INDEMNITY, EXCULPATORY CLAUSE AND LIMITATION OF LIABILITY PROVISIONS. Buyer to Initial: Hg 6 of 14 FILED: WESTCHESTER COUNTY CLERK 01/30/2024 12:32 PM INDEX NO. 68181/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/30/2024 18. LEGAL ACTION / BREACH / AGREEMENT TO BINDING ARBITRATION: In the event SLOMIN'S institutes legal action or arbitration to recover any amounts owed by Buyer to SLOMIN'S the parties agree that the amount to be recovered, and any judgment to be entered, shall include interest at the rate of 1.25% per month from the date payment is due and until paid and such interest shall be included in and shall survive the entry of judgment. BUYER AGREES THAT BUYER MAY BRING CLAIMS AGAINST SLOMIN'S ONLY IN BUYER'S INDIVIDUAL CAPACITY AND NOT AS A CLASS ACTION PLAINTIFF OR CLASS ACTION MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY DISPUTE BETWEEN THE PARTIES OR ARISING OUT OF THIS AGREEMENT, INCLUDING ISSUES OF ARBITRABILITY, SHALL, AT THE OPTION OF ANY PARTY, BE DETERMINED BY BINDING AND FINAL ARBITRATION BEFORE A SINGLE ARBITRATOR ADMINISTERED BY ARBITRATION SERVICES INC., ITS SUCCESSORS OR ASSIGNS, PURSUANT TO ITS ARBITRATION RULES AT WWW.ARBITRATIONSERVICESINC.COM AND THE FEDERAL ARBITRATION ACT, EXCEPT THAT NO PUNITIVE OR CONSEQUENTIAL DAMAGES MAY BE AWARDED. The arbitrator shall be bound by the terms of this agreement and is authorizedto conduct proceedings by telephone, video or by submission of papers. Service of process or papers in any legal proceeding or arbitration between the parties may be made by Postage Pre-paid First-Class Mail delivered by the U.S. Postal Service addressed to: If to SLOMIN'S, SLOMIN'S Inc. c/o Legal Department, 125 Lauman Lane, Hicksville, NY 11801; if to the Buyer, the Buyer address set forth in this agreement or another address provided by the Buyer in writing to SLOMIN'S. Buyer submits to the jurisdiction of New York, venue in Nassau County, New York and agrees that this agreement shall be interpreted and enforced in accordance with the laws of New York, except for arbitration which is governed by the FAA. The parties waive trial by jury in any action between them unless prohibited by law and in any action commenced by SLOMIN'S against Buyer, Buyer shall not be permitted to interpose any counterclaim. The prevailing party in any litigation or arbitration is entitled to recover its reasonable legal fees from the other party. Any action between the parties must be commenced within one year of the accrual of the cause of action or shall be barred. All actions or proceedings by either party must be based on the provisions of this agreement and any other claim or cause of action that Buyer may have or bring against SLOMIN'S in respect to other services rendered in connection with or in furtherance of this agreement shall be deemed to have merged in and be restricted to the terms and conditions of this agreement, and the consent to arbitrate and other provisions of this paragraph shall survive the termination of this agreement. BUYER ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE DISPUTES AND THAT ARBITRATION IS BINDING AND FINAL AND THAT BUYER IS WAlVING BUYER'S RIGHT TO TRIAL IN A COURT OF LAW, A JURY TRIAL AND THE RIGHT TO COUNTERCLAIM IN ANY ACTION OR ARBITRATION COMMENCED BY SLOMIN'S, AND OTHER RIGHTS. Buyer to Initial: Hg 19. SLOMIN'S Right to Subcontract Services: Buyer agrees that SLOMIN'S is authorized and permitted to subcontract any services to be provided by SLOMIN'S to third parties who may be independent of SLOMIN'S, and that SLOMIN'S shall not be liable for any loss or damage sustained by Buyer by reason of fire, theft, burglary any other cause whatsoever caused by the negligence of third parties. Buyer appoints SLOMIN'S to act as the Buyer's agent with respect to such thirdparties, except that SLOMIN'S shall not obligate Buyer to make any payments to such third parties. Buyer acknowledges that thisagreement, and particularly those paragraphs relating to SLOMIN'S exemption of liability, even for its negligence, limitation of liability and indemnification, inure to the benefit of and are applicable to any assignees, subcontractors, manufacturers, and vendors of SLOMIN'S. 20. Full Agreement/Severability: This agreement constitutes the full understanding of the parties and may not be amended, modified or cancelled, except in writing signed by both parties. Buyer acknowledges and represents that Buyer has not relied on any representation, assertion, guarantee, warranty, collateral agreement or other assurance, except those set forth in this agreement. Buyer hereby waives all rights and remedies, at law or in equity, arising, or which may arise, as the result of Buyer's reliance on such representation, assertion, guarantee, warranty, collateral agreement or other assurance. To the extent this agreement is inconsistent with any other document or agreement, whether executed prior to, concurrently with or subsequent to this agreement, the terms of this agreement shall govern. The agreement shall run concurrently with and shall not terminate or supersede any existing agreement between the parties unless specified herein. Should any provision of this agreement be deemed void, the remaining parts shall be enforceable. SLOMIN'S does not guarantee Buyer will receive credits or rebates offered by any manufacturer, government program or utility company. SLOMIN'S, reserves the right to cease fuel deliveries and service without notice, if unable to perform or Buyer is delinquent on payments. SLOMIN'S reserves the right to reject this agreement after inspection of the heating system. 7 of 14 FILED: WESTCHESTER COUNTY CLERK 01/30/2024 12:32 PM INDEX NO. 68181/2023 NYSCEF DOC. NO. 5