WEB SITE TERMS OF SERVICE
©Copyright 2017 Service Experts LLC. All rights reserved. Except as otherwise noted in this web site, all information, documentation and other content posted in this web site (collectively, the "Information") is the property of SE Holdco, LLC and its parent, subsidiaries and affiliates or a third party who has granted Service Experts LLC permission to use such information (collectively "Service Experts"). Without limiting the foregoing, the text, content, graphics, icons and overall appearance of this web site are the property of Service Experts. The posting of information does not constitute a waiver of any of Service Experts' proprietary rights in such information (such as, but not limited to, copyrights or trademarks) or a transfer of any such rights to you or any third party. The information is protected by U.S. and international copyright laws, both as individual works and as a collection. You agree not to delete any copyright or similar notice from any Information. You may not sell or republish, or copy for other than your own individual use, the Information or any portion thereof without the prior written consent of Service Experts.
Service Experts' trademarks may not be used in connection with any product or service that is not the property of Service Experts, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Service Experts. Other trademarks used on this site are the property of their respective owners and are used herein solely for descriptive purposes. Mention on this Web site of trademarks held by other parties should not be construed as a challenge to said trademarks' status or ownership.
THIS WEB SITE IS PROVIDED BY SERVICE EXPERTS ON AN "AS IS" BASIS. SERVICE EXPERTS MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND, AS TO THE OPERATION OF THE WEB SITE, OR THE CONTENT, INFORMATION, MATERIALS OR PRODUCTS INCLUDED ON THIS WEB SITE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, SERVICE EXPERTS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SERVICE EXPERTS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RESULTING FROM THE USE OF THIS WEB SITE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES. SERVICE EXPERTS WILL NOT BE LIABLE FOR ANY DAMAGES THAT MAY RESULT FROM MISREPRESENTATION OF AGE BY A USER OF OUR WEB SITE. SERVICE EXPERTS DOES NOT WARRANT THAT THE WEB SITE WILL OPERATE ERROR-FREE OR THAT THIS WEB SITE AND ITS SERVER ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL GOODS. IF YOUR USE OF THE WEB SITE OR THE MATERIAL RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, SERVICE EXPERTS IS NOT RESPONSIBLE FOR THOSE COSTS.
This Web site is created and controlled by Service Experts in the State of Texas, U.S.A. As such, the laws of the State of Texas will govern these disclaimers, terms, and conditions, without giving effect to any principles of conflicts of laws. By use of this web site you irrevocably consent for any and all disputes with Service Experts to the venue of state or federal courts located in the State of Texas. If you access the Web site from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. We reserve the right to make changes to our site and these disclaimers, terms and conditions at any time with or without notice to its users.
USE OF USER-GENERATED CONTENT
Service Experts retains ownership and the right to publish, without permission and in any format, any content submitted by any user of this Web site or any Service Experts-owned Web site.
LINKS TO OTHER SITES
The Web site contains links to third party Web sites. These links are provided solely as a convenience to you and do not constitute an endorsement of the sites, the third parties themselves, or their goods, services, or products. Service Experts is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third-party Web sites. If you decide to access linked third-party Web sites, you do so at your own risk.
ADDRESS OF RECORD
Service Experts LLC
3820 American Drive
Plano, Texas 75075
HVAC SERVICE TERMS AND CONDITIONS
Where the context permits, the following words shall have the meanings indicated. “Authorized Service Technician” means the person(s) authorized by Service Experts to furnish the Service hereunder, which may include third party subcontractors authorized by Service Experts. “Customer” or “you” means the person, partnership, company, or corporation purchasing the Service hereunder. “Equipment” means the HVAC unit or associated equipment that is the subject of the Service rendered hereunder. “Service” means the installation, inspection, servicing, reconditioning, start-up, alteration, repair, replacement, or correction of Equipment, or a part thereof, or assistance with respect thereto. “Service Experts” or “our” or “us” or “we” means Service Experts LLC, a Delaware limited liability company, d/b/a Service Experts Heating & Air Conditioning and each of its subsidiaries. “Service Order” means the executed agreement between Service Experts and Customer setting forth the terms of the Service, which incorporates these Terms and Conditions. “Service Experts Program Terms” means the specific features of any of the following: (1) Ultimate Protection Plan, and/or (2) Plus Maintenance Agreement.
By accepting the Service or making a payment for all or part of the Service Customer accepts the Service pursuant to these terms and conditions. PLUS Maintenance contracts will automatically renew annually unless you notify us in writing at least 30 days before your contract expires.
WARRANTY AND 100% SATISFACTION GUARANTEE
Service Experts agrees to accept responsibility for your 100% complete satisfaction. This means that if you are not totally satisfied with the product installation Service, we will promptly address and perform to your complete satisfaction those issues regarding material or workmanship or we will remove the installed equipment and refund your money. If you are not totally satisfied for the first year following the Service performed by Service Experts, we will promptly address and perform to your complete satisfaction those issues regarding material and workmanship or we will refund your Service fee. This 100% Satisfaction Guarantee applies so long as: (i) the entire HVAC system (the “System”) is maintained annually by a Service Experts Authorized Service Technician; (ii) all repairs recommended by Service Experts are performed on the System; and (iii) the System has been used solely for the purpose and under the conditions for which it was designed and has not been subjected to misuse, alteration, accident or abuse.
The warranties herein and remedies for breach thereof are exclusive and conditioned upon Customer providing timely notification to Service Experts. They are given by Service Experts and accepted by Customer in lieu of any and all other remedies, warranties, and guarantees, express or implied, and IN LIEU OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. SERVICE EXPERTS DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, UNDER NO CIRCUMSTANCES, WHETHER ARISING IN THE CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL SERVICE EXPERTS, ITS AGENTS, AND ITS EMPLOYEES BE RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, PROPERTY DAMAGE, LOSS OF PROFIT, LOST DATA, LOSS OF OPERATING TIME OR LOSS OF, OR REDUCTION IN USE OF, ANY FACILITIES (INCLUDING EXISTING FACILITIES) OR ANY PORTION THEREOF, INCREASED EXPENSE OF OPERATION OR MAINTENANCE, OR EXPENSE OR REPLACEMENT PRODUCTS RESULTING FROM THE BREAKDOWN OR FAILURE OF ANY EQUIPMENT OR FROM DELAYS IN OR THE INABILITY TO RENDER ANY SERVICE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL SERVICE EXPERTS BE RESPONSIBLE OR LIABLE FOR ANY LOSS, COST, OR DAMAGE ARISING FROM ANY SOURCE WHATSOEVER, INCLUDING NEGLIGENCE, IN EXCESS OF THE PRICE PAID BY CUSTOMER FOR THE SERVICE WHICH GIVES RISE TO THE LOSS, COST, OR DAMAGE.
WHAT IS NOT COVERED/GUARANTEED
This contract does not cover: (a) Ultimate Protection Plan which is a maintenance plan and/or extended warranty plans governed by a separate agreement between You and Service Net Warranty, LLC.; (b) any additional Equipment that is added to Your heating and/or air conditioning system, unless we agree that for an additional annual fee to cover same; (c) any maintenance to Equipment that has been altered or repaired by anyone other than an Authorized Service Technician, including any unauthorized alterations made by you to the Equipment; (d) damage or other Equipment failure due to causes beyond Service Experts’ control including, but not limited to, repairs necessary due to operator negligence, Customer’s failure to maintain the Equipment according to the owner’s manual instructions, abuse, vandalism, theft, fire, flood, wind, freezing, power failure, inadequate power supply, moisture or other unusual atmospheric conditions, acts of war or acts of nature; (d) consumable items defined as any part that is considered consumable by the manufacturer; (e) damage or failure caused by animals or insects; (f) regular maintenance, maintenance parts such as filters, lubricants, or refrigerant gasses, unless specifically included in the description of the applicable Service; (g) failure and replacement caused by contamination of the sealed system such as by Green Slime, Dirty Sock Syndrome, etc.; (h) corrosive conditions caused by location or moisture;
(i) leaks in the Equipment in the evaporator, Schrader cores, condenser and/or metering device or other connections resulting from loose valves and/or loose valve caps, interconnecting fittings and/or field piping (line sets/tubing); (j) miscellaneous items such as nitrogen that are used to detect or diagnosis failures unless specifically included in the description of the applicable Service; (k) alteration of the Equipment to meet changes in federal, state or local codes and regulations, or repairs which require additional parts and labor to bring the Equipment into working condition as a result of such government regulations; and/ or (l) manual or digital thermostats unless specifically included in the description of the applicable Service.
COMPENSATION, INVOICING, AND PAYMENT
Payment is due upon completion of work. Delinquent accounts are subject to interest at the rate of 1 1/2% per month, but not in excess of the maximum rate permitted under applicable law. Customer agrees to pay all expenses incurred by Service Experts for collecting any delinquent accounts, including, but not limited to reasonable attorney’s fees, filing fees and associated costs.
For any Service for the inspection, tune-up, or maintenance of Equipment to be performed in a single service call, Service Experts shall invoice the Customer for all charges incurred in accordance herewith and such invoices shall be due upon completion of work. For any Service to be performed on multiple service calls or over a specified term, Customer may authorize payment by “Automatic Checking Acct Debit” or “Automatic Credit Card Debit”, whereby Customer authorizes Service Experts to charge a monthly installment from Customer’s account beginning one month after the application is approved. The automatic monthly payment will continue until a written notice of termination is received by Service Experts. As permitted by applicable law, upon renewal of this contract, Customer agrees that Service Experts may change or increase the monthly installment charge and automatically debit such charge in connection with any changes to standard service fees. Cancellation will be subject to Service Experts then current refund policy or in the case of Ultimate Protection Plan, pursuant to service net warranty, LLC’s, terms and conditions.
Customer shall schedule a date for Service at the time of purchase or else authorize Service Experts to contact Customer at a later time to schedule the appointment. If any Service is not scheduled at the time of purchase, or if the appointment is cancelled or otherwise prevented from occurring, Service Experts will make three reasonable attempts to schedule the appointment to complete the applicable Service. To the extent permitted by applicable law, in the event Service Experts cannot reach Customer after three reasonable attempts or is not permitted to perform the Service after three attempts to schedule such Service, then Customer agrees that Service Experts shall have fulfilled its obligations as to such Service hereunder, and Service Experts shall retain all funds associated with the purchase of such Service and be relieved of any further obligations to provide the Services.
CONSENT TO CONTACT
By entering into this agreement, you expressly consent and permit Service Experts to contact you by phone (via live operator or automated call) to schedule and provide products and services associated with your purchase or service. You consent to receive future communications and advertising about the products and services we offer via phone, email or mail. You consent and agree that we may provide your contact information to our third party partners for use in marketing related products, services and extended warranties to you.
Service Experts hereby notifies Customer that persons or companies furnishing labor or materials for the construction on Customer’s land may have lien rights on Customer’s land and buildings if not paid.
This Agreement shall be construed and governed by the laws of the State of Texas.
Service Experts’ waiver of any breach by Customer of any of the provisions contained herein shall not constitute a waiver of any other breach of the same or any other provision. Service Experts’ rights and remedies under any provision contained herein shall be in addition to and not in substitution or limitation of any other rights and remedies available to Service Experts under applicable law.
HEADINGS AND SEVERABILITY
The headings of the paragraphs of this agreement are for convenience only and shall not be construed as adding meaning to the provisions. If a court determines that any part of this agreement is unenforceable, the parties agree that only the portion of this agreement that is so determined to be unenforceable and shall be stricken and that the remaining parts shall be unaffected.
These General Terms and Conditions, together with the Service Experts’ Service Order, state specific addendum attached hereto, and any applicable Program Terms, shall constitute the entire agreement of the parties and shall not be modified except by written change order issued and signed by Service Experts. No prior representations, inducements, promises, or agreements between the parties, whether oral or written, shall be of any force or effect and any said prior representations, inducements, promises, or agreements are hereby revoked and superseded. No terms stated by Customer in accepting or acknowledging this offer or otherwise shall be binding except as expressly incorporated herein by Service Experts. THIS OFFER IS EXPRESSLY LIMITED TO ACCEPTANCE UPON THE TERMS AND CONDITIONS CONTAINED HEREIN.
New York Addendum to Service Experts’ Service Order
Any contractor, subcontractor, or materialman who provides home improvement goods or services pursuant to your home improvement contract and who is not paid may have a valid legal claim against your property known as a mechanic’s lien. Any mechanic’s lien filed against your property may be discharged. Payment of the agreed-upon price under the home improvement contract prior to filing of a mechanic’s lien may invalidate such lien. The owner may contact an attorney to determine his rights to discharge a mechanic’s lien.
Disclosure of Cancellation rights
In addition to any rights otherwise to revoke an offer, the owner may cancel the home improvement contract until midnight of the third business day after the day on which the owner has signed an agreement or offer to purchase relating to such contract by delivering the attached form Notice of Cancellation to Service Experts.
HVAC RENTAL TERMS AND CONDITIONS 1. Definitions
“Equipment” means the item(s) you rent from us, which are described in section A of the Federal Consumer Leasing Act Disclosures of this Rental Agreement; “Owner(s)” or “Home Owner(s)” means the owner of the Premises on which the Equipment will be installed; “Premises” means the Installation Address set out on the first page of this Rental Agreement and shall include the residence and all property thereon excluding the Equipment; “Rental Agreement” means this residential rental agreement between Service Experts and you, the customer; “we”, “our” , “Service Experts” and “us” means Service Experts LLC and its subsidiaries, affiliates and/or our authorized service providers; and “you”, “Customer” and “your” means the Lessee and Owner(s).
This Rental Agreement will have a term of 120 months (the “Original Term”). This Rental Agreement will continue thereafter for successive one-month terms (each an “Extension Month”), unless otherwise terminated as provided herein or by either party during any such Extension Month with at least 30 days’ prior written notice.
3. Our Commitment to You
In consideration of your commitment to the payment terms provided in this Rental Agreement and your continued compliance with the terms and conditions contained herein, we agree to the following: (i) Installation: to ensure proper installation of the Equipment; however, any and all costs and expenses arising beyond the normal and typical installation process, including any costs or expenses related to permits, licenses, inspections or other requirements of local laws or regulations, shall be the sole responsibility of you, the Customer. (ii) Service & Maintenance: during the Original Term, and subject to your continuous compliance with the terms and conditions of this Rental Agreement, we will perform all normal and reasonable repair and maintenance on the Equipment with no additional service charges or part replacement charges beyond the monthly rental rate except (a) as may be caused by or arising from your failure to properly care for the Equipment, as more generally described in Section 4 below, or any other act of negligence, neglect, misuse, or abuse, (b) any alteration, modification, adjustment, damage, service, repair, moving or disconnection of the Equipment, or any use of the Equipment in a manner, way, or purpose other than as intended, (c) where any ancillary or connecting equipment, materials, or elements (including, but not limited to, any venting, piping, wiring, ducting and/or electrical services) require cleaning, repair or replacement or otherwise contribute to the need for any service, repair, or maintenance on the Equipment, or (d) as otherwise described in this Section 3. Our 24-hour per day, 7-days-per-week emergency phone number is 1-866-397-3787. (iii) Periodic Inspection: from time-to-time (which may be more or less frequently than annually), we will contact you to arrange a mutually agreeable time for us to have access to the Premises to inspect the Equipment and assess its condition and your compliance with your obligations and commitments contained in this Rental Agreement. Your failure to provide us with access to the Premises and Equipment shall be deemed a breach by you of this Rental Agreement and such breach shall entitle us to all rights and remedies provided in this Rental Agreement or otherwise available to us in equity or law. Our commitments specifically do not cover, and we are not responsible for, any of the following: (A) The cost of replacement of the Equipment, or any part thereof or replacement part costs during any Extension Month; (B) Duct cleaning; (C) Repair, service, or replacement of the Equipment or Premises (including any and all direct, consequential, or resulting costs and expenses) required, recommended, or needed as a result of any: (1) weather conditions, subsidence, structural repairs, fire, freeze, power or electrical surge, riots, lightening, explosion, earthquake, tornado, flood, storm, acts of war, any insurable risks, and any and all acts of God; (2) abuse, tampering, alterations, improvements, or repairs by anyone other than us; (3) improper use or setting of the Equipment, including but not limited to the thermostat; (4) faulty or poor performing electrical wiring, breakers, fuses, piping, venting, or any other element of the heating or cooling system not included in the Equipment, including but not limited to the plumbing and drainage systems; (5) the extinguishment of the pilot light; (6) the Equipment has been turned off; (7) renovation or repair work done at or to the Premises; (8) failure to properly care for and clean the Equipment or otherwise perform reasonable maintenance; (9) electronic, computerized, or energy management systems (such as a smart house), applications, or devices, including connected home systems, devices, and applications; (10) chemical or sedimentary buildup, rust, corrosion, insect infestation, mold, mildew or bacterial manifestations, missing parts, structural change; (11) your failure to fully perform and comply with your obligations under this Rental Agreement; and/or (12) negligence, misconduct, or any other acts or omissions by parties other than us; (D) Ancillary Equipment and Materials: You acknowledge and agree that you own, or are otherwise responsible for, any and all costs and expenses arising from or related to the piping, venting, wiring, ducting on the Premises (regardless of who installs such material), unless it is expressly itemized and included within the Equipment, as better described in the Description of Leased Item(s) in the Federal Consumer Leasing Act Disclosures attached to this Rental Agreement. In addition to any rental charges under this Rental Agreement, you are responsible for the costs of any ancillary piping, venting, wiring, and ducting we install on the Premises. We are not required to remove these items after this Rental Agreement ends and have no responsibility for them if any of the Equipment is removed or if this Rental Agreement is terminated; (E) Repairs needed as a result of accidental or deliberate damage, loss or theft; (F) Any and all redecorating, restoration, and/or repair costs or expenses that may be required or recommended as a result of any work performed in connection with this Rental Agreement, including, but not limited to, wall coverings, drywall, plaster, wallpaper, paint, floor coverings, tile, cabinetry, counter tops, landscaping or repair of any structural or cosmetic defects. If it is necessary for us to dig on your property in connection with work performed in connection with this Rental Agreement, we will fill any holes and leave the ground level or mounded, but we will not restore the original surface or construction, including upgrades or the cost of construction, carpentry, or other modifications made necessary by the Equipment or the installation of the same; (G) Providing for or closing access to covered items; (H) Service, maintenance, repair, or replacement necessitated by any loss or damage resulting from any cause other than normal usage. Loss or damage due to failure to clean or maintain the Equipment, rust, water damage, mud, soil movement, windstorms, hail, theft, intentional acts (other than by us), accident, pet or pest damage, acts of God, or failure due to excessive water pressure (I) Preventative maintenance other than to the extent noted in Section 3 (ii) above; and (J) Consumable items, including but not limited to filters and fuses. If, after installation, building or other code violations are discovered before or during the diagnosis or repair of Equipment, we will not be required to repair or service such Equipment until the necessary corrective work is completed at your own expense. If additional costs are incurred in order to comply with local, state, or federal law, we shall not be responsible for that additional expense and you shall pay for same. We are not responsible for service or repair of Equipment when permits cannot be obtained and we will not pay any costs relating to permits. Our commitment does not cover any service involving hazardous or toxic materials, asbestos, lead or the disposal of refrigerants or contaminants. If a thermostat that is included in the Equipment fails, we will provide a replacement thermostat with a make/model, of our choice, that enables like operation of your dependent heating, ventilation and/or air conditioning equipment. Zone thermostats/controls and energy management controls are not covered by our commitment. We are not responsible for insufficient air distribution due to existing ductwork design or clogged duct work or for insufficient water flow due to existing piping or radiators or clogged piping or radiators. Costs of refrigerant recovery, vacuuming and refill are excluded from our commitment.
4. Customer Obligations and Commitments
In consideration of receiving and using the Equipment, you agree that: (A) You will pay your charges billed under this Rental Agreement when due. You agree to pay any taxes payable in connection with this Rental Agreement. Payment is due on on the date set forth on the invoice. We will mail the invoice at least fifteen (15) days before the invoice is due. Acceptable methods of payment currently include pre-authorized electronic payment and payment by check. If you choose to pay by check or pre-authorized electronic payment and any check is returned or pre-authorized electronic payment is not processed due to non-sufficient funds (“NSF”), you agree to pay a NSF charge of $25 and a late payment charge. (B) Late Payments: You will be charged a late payment of 1.5% per month or 18% per year (for an effective rate of 19.56% per year) of any amount past due or the maximum amount allowed under law, whichever is less. (C) You will promptly inform us of any change in (i) your mailing or email address at least 30 days in advance of such change; and/or (ii) if previously provided, bank account or credit card information you provided us promptly after such change is made. (D) You will provide us with timely access to the Equipment whenever requested by us to perform services or exercise our rights under this Rental Agreement. (E) You will use the Equipment safely and responsibly for its intended purpose only, and in particular you will: (i) ensure that no combustible, hazardous or flammable materials are used or stored in the same room as, or near, the Equipment; (ii) ensure that the Equipment is not confined in a location where it is difficult to service or remove or where there is inadequate ventilation; (iii) ensure that the filters, vents and openings are kept clear and clean and are otherwise kept well maintained by you; and (iv.) obtain our approval before you connect any add-on equipment, such as air handlers, humidifiers, storage tanks, air duct systems or hydronic baseboards to the Equipment. We are not responsible for the installation or maintenance of any add-on equipment, or for any damage caused by this add-on equipment or the Equipment if the damage occurred because of the add-on equipment. (F) You will notify us promptly if the Equipment breaks down or is damaged. (G) You will not permit anyone but us to service, repair, modify, move or disconnect the Equipment. (H) You will be responsible for any damage to, or loss of, the Equipment, including if caused by you or third parties. You will also be responsible for any damage to, or loss of, the Equipment if caused by fire, flood, accident or other insurable risks. We will only be responsible for damage to the Equipment outside of our warranty obligations if the damage is caused by our gross negligence. You will maintain sufficient insurance to cover any damage to the Equipment and, upon our request, promptly provide us with evidence of such insurance. You are responsible for determining whether the installation of the Equipment affects your existing insurance coverage, as well as making any necessary additions or corrections to your insurance policy and for the consequences of failing to make such additions or corrections, if any were needed. (I) You will maintain in good working order the ancillary piping, venting, wiring or ducting owned by you or otherwise on the Premises that but are not included within, the Equipment. (J) The Equipment remains our property, is not intended to become a fixture and you will not tamper with any plate(s), tag(s) or sticker(s) identifying the Equipment as rented Equipment owned by us unless and until you exercise your right to purchase the Equipment as provided in this Rental Agreement. (K) If you sell, lease or otherwise transfer the Premises, you will, in addition to your obligations in Section 6 (Sale of your Home), advise us in advance and advise the transferee and any potential purchasers that the Equipment is rented pursuant to this Rental Agreement. (L) This Rental Agreement is binding upon and will inure to your heirs, personal representatives, successors, and permitted assigns.
5. Ownership of Equipment/Customer Credit
THIS IS A RENTAL AGREEMENT AND NO OWNERSHIP INTEREST IN THE EQUIPMENT IS BEING TRANSFERRED HEREBY. SERVICE EXPERTS OR ITS ASSIGNEE WILL REMAIN THE OWNER OF THE EQUIPMENT DURING THE EFFECTIVENESS OF THIS RENTAL AGREEMENT.
During the time that this Rental Agreement is in force, the Equipment remains the property of Service Experts or its assignee and although it may be affixed to the Premises, is not intended to become a fixture. You agree to assist in protecting our ownership interest by signing and providing any further documents we may reasonably require and you acknowledge that we may register notices of security or ownership, such as appropriate liens, including on title to the Premises. See Section 18 for further information regarding any security interest. You agree to keep the Equipment free of all liens, security interests, mortgages and other claims. You understand and agree that we may require a background and credit check in connection with this Rental Agreement and, by signing this Rental Agreement, you consent to and approve our solicitation of such information and our use of the same to make a determination as to certain terms required in this Rental Agreement or to refuse to enter into or terminate this Rental Agreement prior to the installation of the Equipment. In the event that Service Experts decides to take any action to terminate or refuse to enter into the Rental Agreement, you would be provided with any and all required notices.
6. Sale of your Home
If you are the Owner and you sell or otherwise transfer the Premises, you are required to inform the buyer or transferee, at or before the effective date of the sale or transfer, of the existence of this Rental Agreement and the rental Equipment installed in the Premises. In the event the sale of the Premises requires the preparation of a residential property condition disclosure or similar document, you agree you will disclose this Rental Agreement in that disclosure. We will permit the purchaser to assume your rights and obligations under this Rental Agreement, effective from the date of sale, or other transfer, provided that (i) you or your representative notify the transferee in the sale or transfer agreement that the Equipment is rented and is subject to this Rental Agreement, (ii) you or your representative advise us in advance of the transferee’s name and the intended date of sale or other transfer, (iii) you or your representative advise us in advance of the address and telephone number where you can be contacted after the date of sale or transfer, (iv) the transferee agrees in writing or by conduct with us to assume your obligations, and (v) you have paid us all amounts owing under this Rental Agreement. Unless and until these conditions are satisfied, or unless we otherwise waive any or all of these conditions, which we are under no obligation to do, both you and/or the customer(s), as applicable, will remain responsible for the Equipment rental and your obligations under this Rental Agreement, including making all rental payments. You hereby authorize us to respond to information requests relating to your account made by or on behalf of the transferee. We may also accept performance of your obligations (including payment obligations) from other parties (such as tenants) but will not be required to do so.
7. Limited Warranty
This is a rental agreement and not a sales contract and we make no representations or warranties as to the Equipment or its performance. As between you and Service Experts, the Equipment is “As-is”. WE HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. However, we do warrant that the services performed by us as to the Equipment under this Rental Agreement will be free from material defects. The duration of such warranty shall continue as long as this Rental Agreement remains in effect, but no less than thirty (30) days from the date of performance. In the event any of our services fail to conform to this warranty we will repair or replace the defective service at our expense. We will also assign or provide coverage of the Equipment manufacturer’s warranty. We make no representations or warranties as to the performance of the Equipment except for those which are given by statute and which you cannot waive. We are not the manufacturer of the Equipment and we are not making any warranty or guarantee on behalf of the supplier, or the manufacturer of the Equipment, including whether the Equipment is suitable for you, except as provided above. EXCEPT AS EXPRESSLY SET OUT HEREIN, WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation on Liability
You understand and agree that (i) we will not be liable for any loss, damage, expenses, or injury of any type arising out of or related to this Rental Agreement or otherwise caused or contributed to in any way by the supply, installation, use and/or operation of the Equipment; (ii) except in the event of injury to person(s), we will not be responsible for any direct, indirect, incidental, special or consequential damages, even if reasonably foreseeable and if caused by us; and (iii) if we are unable to perform any of our commitments under this Rental Agreement because of circumstances or events beyond our control, we shall be excused from their performance until such time as we shall be able to perform and we shall not be liable for any such failure to perform or delay in performance. 9. Indemnification
You will indemnify and hold us harmless from any and all claims, losses, expenses, and costs that we may suffer or pay or may be required to pay, including legal expenses, in connection with or arising from this Rental Agreement or the supply, installation, use and/or operation of the Equipment, including any claims for any injury or death to individuals or damage to the Premises or other property, regardless of the cause, to the fullest extent permitted by law. This obligation survives the termination of this Rental Agreement for any reason.
10. Early Termination and Default
You may not terminate this Rental Agreement before the end of the Original Term or Extension Month (as applicable), except as provided in Section 17, below. This Rental Agreement may be terminated by us at any time in the event of a Default (as defined below) by you. Upon termination of this Rental Agreement, (i) we may enter upon the Premises for the purposes of repossessing and removing the Equipment, and we will charge a $500.00 removal fee if this Rental Agreement is terminated during the Original Term; and (ii) all amounts owing hereunder are immediately due and payable and you will be deemed to be exercising your Buy-out Option as provided in Section 17 of this Rental Agreement . When you no longer rent the Equipment, you will not be obligated to pay for the rental and we will not be obligated to supply replacement Equipment, unless we mutually agree at the time pursuant to a new agreement. Each of the following will be an event of default by you (“Default”): (A) If any bankruptcy, insolvency or receivership proceedings are commenced with respect to you; and/or (B) If you breach any provision of, or fail to perform any of your obligations under this Rental Agreement, including but not limited to any failure to pay any amount when due or otherwise care for or maintain the Equipment. At any time while there is a Default, we may terminate this Rental Agreement and/or pursue any other remedies we may have at law. In the event the Equipment is equipped with a device that allows us to access it remotely, either now or in the future, you agree that we may use that remote access to enforce our rights under this Agreement including, but not limited to, remotely disabling the Equipment.
We may transfer, assign, encumber or otherwise dispose of all or any part of our interest in this Rental Agreement and/or the Equipment to another party at any time without notice to you and without your permission. To the extent permitted by law, you will not assert against any transferee any claims, defenses, set-offs, deductions or counter-claims which you may now or in the future be entitled to assert against us. Except as otherwise provided in this Rental Agreement, you may not transfer, assign or encumber all or part of your interest in this Rental Agreement or the Equipment without our prior written consent (see Section 6 (Sale of Your Home)).
12. Invalidity of Provision/Severability
If any provision of this Rental Agreement or the application thereof to any person or circumstance is held to be invalid or unenforceable, such provision shall be severed and the remainder of this Rental Agreement shall continue to remain in full force and effect subject to such modifications as may be necessary to carry out the provisions and intent of this Rental Agreement.
13. Governing Law
This Rental Agreement shall be governed by the laws of the State where the property on which the Equipment is installed is located (without giving effect to internal principles of conflict of laws).
14. Entire Agreement and Amendments
You understand that this Rental Agreement, together with any attachments, exhibits, and/or addendums, is the entire agreement between you and us and supersedes all prior agreements, understandings or discussions, whether oral or written, and there are no warranties, representations or other agreements except as specifically set out in this Rental Agreement. This Rental Agreement may be amended from time to time by us by notice in bill inserts, by letter or by any method permitted by law.
All notices and other communications required or permitted under this Rental Agreement shall be properly given by the sending party when made in writing and: (i) delivered by a reputable courier service requiring signature for receipt; (ii) mailed by certified or registered first-class mail, postage prepaid, with a return receipt requested; (iii) sent by fax as evidenced by a printed confirmation from the sending party’s fax machine; or (iv) emailed, in each case to your address on the first page of this Rental Agreement or to Service Experts [CENTER ADDRESS] or such other address notified by the other party in writing from time to time. The parties agree that any faxes or emailed document shall be deemed an original document, however all notices of arbitration must be sent according to (1) or (2) in the preceding sentence.
16. Mandatory Arbitration of Disputes
Any dispute, disagreement or claim between you and Service Experts arising out of or in connection with this Rental Agreement, or the Equipment, which cannot be amicably resolved by the parties shall be submitted to final and binding arbitration in a location that is a convenient distance from the Premises for you, in accordance with the Consumer Arbitration Rules of the American Arbitration Association (the “AAA Consumer Rules”), administered by the American Arbitration Association except as otherwise provided in this Section. This agreement to arbitrate is governed by the Federal Arbitration Act. While a dispute, disagreement or claim is being resolved under this Section, both parties shall continue to perform their obligations under this Rental Agreement. YOU AND SERVICE EXPERTS AGREE THAT BY ENTERING INTO THIS RENTAL AGREEMENT, YOU AND SERVICE EXPERTS ARE WAIVING THE RIGHT TO SUE IN COURT AND WAIVING THE RIGHT TO A JURY TRIAL. IN ADDITION, EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY IN ITS INDIVIDUAL CAPACITY ONLY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. OTHER RIGHTS THAT YOU OR SERVICE EXPERTS WOULD HAVE IN COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION. The parties agree that the award of the arbitration (the “Arbitration Award”): (i) shall be conclusive, final, and binding upon the parties; and (ii) shall be the sole and exclusive remedy between the parties regarding any and all claims and counterclaims presented to the arbitrator. The judgment on the Arbitration Award may be entered in any appropriate court as necessary to pursue judgment. The Arbitration Award shall be based exclusively on the provisions of this Rental Agreement. In addition, in the case of any conflict between the provisions of the AAA Consumer Rules and the provisions of this Rental Agreement, the provisions of this Rental Agreement shall govern. Prior to filing a demand for arbitration, a party must first give the other party at least fifteen (15) days’ prior written notice of its intent to file the demand. All notices to be given in connection with the arbitration shall be as provided in Section 15 (i) or (ii). Demand for arbitration must be filed within one (1) year after the event giving rise to the arbitration demand. If the complaining party fails to file the demand for arbitration within that time, the claim shall be deemed to be waived and shall be barred from either arbitration or litigation. If you provide a reasonable explanation why your claim is not frivolous and why you cannot afford to pay the arbitration filing fee in your written notice, we will pay the filing fee for you. The Arbitration Award shall be made and shall be payable free of any tax or any other deduction. The Arbitration Award shall include interest, at a rate determined as appropriate by the arbitrator, as of the date of the breach or other violation of this Rental Agreement to the date of the Arbitration Award. In the event you are the prevailing party in any such arbitration, and the amount you are awarded is greater than any demand you submitted at least fifteen days prior to filing the demand for arbitration, you shall be awarded your costs of the arbitration, including reasonable attorneys’ fees and court costs, in addition to the Arbitration Award. In the event of any breach by a party of this Rental Agreement which would cause any non-breaching party to be irreparably harmed or for which such non-breaching party could not be made whole by monetary damages, then in such circumstances, such non-breaching party, in addition to any other remedy to which it may be entitled at law or in equity, shall be entitled to equitable relief, including injunctive relief and specific performance, in any action instituted in a court of applicable jurisdiction.
17. Your Buy-out Option
You may not terminate this Agreement except as provided below. You may purchase the Equipment at any time during the Original Term or Extension Month (“buy-out option” or “purchase option”). During the Original Term and/or Extension Month, you may not purchase less than all of the Equipment. You may exercise your purchase option by notifying us in writing or by calling toll free 1-866-397-3787. If you are interested in exercising this purchase option, the calculation is based on the chart below. The purchase price (“buy-out price” or “purchase price”) calculation can also be found on our website at www.ServiceExperts.com. The purchase price is based on, among other things, the unpaid cost of the Equipment and related installation, finance, service and maintenance costs.
If you choose to exercise the purchase option during an Extension Month the purchase price can be determined by calling toll free 1-866-397-3787. When you exercise your purchase option you accept the Equipment in “as-is” condition, subject to the balance of any transferable manufacturer’s warranty, and you assume responsibility for the Equipment and its repair and maintenance. You also agree to pay the purchase price, plus any applicable taxes, when invoiced by us. Once we receive payment of the purchase price, this Rental Agreement will terminate and you will have no further obligation to pay rent and we will have no further obligation to you.
18. Security Interest - Protecting Our Rights to the Equipment
To protect our rights to the Equipment, we may register a notice of security or ownership of the Equipment as we deem appropriate, including a notice on title to the Premises. You agree to sign and give us any documents or guarantees we need to preserve our rights to the Equipment and protect us against any claims to it.
19. Your Signature
By signing this Rental Agreement, you represent that are both (a) at least eighteen (18) years of age and (b) an individual citizen or resident of the United States and that you have all needed authorization to sign.
20. Notice of Right to Cancel
You may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction, unless a different time period applies under state law. See the included notice of cancellation form for an explanation of this right.
21. Title Search
Service Experts expressly reserves the right, prior to or during any term of the Lease to perform a title search on the Premises. If anyone who has signed this Rental Agreement is not found on the title of the Premises, Service Experts will provide an amended Rental Agreement reflecting only those signatories found on the title of the Premises.
Home Owner and Lessee
Exhibit A State-Specific Addendum: New York
1. PROPERTY RESTRICTIONS
Service Experts is not responsible for conformance with property restrictions. It is the responsibility of the Lessee/Owner to ensure that the terms, conditions, and provisions of this Rental Agreement comply with any homeowners’ association declarations, by-laws, rules or regulations, and any deed restrictions, covenants or other restrictions of record affecting the property.
Unless exempt from such requirements, the installer agrees to give you a copy of a “Certificate of Workers’ Compensation Insurance” before beginning work. Information on exemptions from holding workers’ compensation insurance and related filings can be found at:
3. NOTICES RELATING TO HOME IMPROVEMENT CONTRACTS
Because you are leasing the Equipment set forth in this Rental Agreement, it should not be considered a home improvement contract under New York law. To the extent that it might nevertheless be so considered, we are providing you with certain notices required for such contracts.
3.1 Mechanic’s Liens
The contractor or subcontractor who performs on the contract or the materialman who provides home improvement goods or services and is not paid may have a claim against the owner which may be enforced against the property in accordance with the applicable lien laws. Any contractor, subcontractor, or materialman who provides home improvement goods or services pursuant to your home improvement contract and who is not paid may have a valid legal claim against your property known as a mechanic’s lien. Any mechanic’s lien filed against your property may be discharged. Payment of the agreed-upon price under the home improvement contract prior to filing of a mechanic’s lien may invalidate such lien. The owner may contact an attorney to determine his or her rights to discharge a mechanic’s lien.
In addition to any other right to revoke you may have under law, you may cancel this Lease at any time before midnight of the third business day after the day on which you signed it. Cancellation must be done IN WRITING, by delivering the Notice of Cancellation to Service Experts in accordance with the notice provisions set forth in this Rental Agreement. Cancellation occurs when the written Notice of Cancellation is given to Service Experts or put in the mail with proper
3.3 Installation Information
4. RATES NOT USURIOUS
In no event shall Service Experts directly or indirectly, charge, take or receive any money, goods or other things as interest under this Rental Agreement at a rate exceeding the maximum rate set forth in New York General Obligations Law §5-501.
5. LIMITATIONS OF LIABILITY
The provisions of this Rental Agreement concerning limitations of liability for injuries to person or property are intended to apply only to the extent that those provisions do not conflict with New York General Obligations Law § 5-323, which provides: Every covenant, agreement or understanding in or in connection with or collateral to any contract or agreement affecting real property made or entered into, whereby or whereunder a contractor exempts himself from liability for injuries to person or property caused by or resulting from the negligence of such contractor, his agent, servants or employees, as a result of work performed or services rendered in connection with the construction, maintenance and repair of real property or its appurtenances, shall be deemed to be void as against public policy and wholly unenforceable.
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