6: ADDITIONAL SERVICES
If any additional or incremental work is requested by you during the term of this Agreement that is beyond the scope and pricing included within this Agreement, estimated fees and/or points needed for any such incremental services will be set forth in writing and agreed to in advance by the Parties.
7: PAYMENT
The Monthly Fee or Annual Fee will be paid by you when you sign up. Thereafter, you agree that the Monthly Fee or Annual Fee for any Renewal Term will be paid by you by automatic payment by credit card, debit card, bank withdrawal, ACH, or some other payment platform approved by H & H Repair, on the monthly or annual anniversary date of this Agreement, until such time as this Agreement is terminated.
Fees for any agreed upon incremental services will be paid by you prior to any such services beginning.
H & H Repair will not begin or continue with work until payment has been made as set forth above.
8: EXCLUSIONS
H & H Repair is not liable for failure to provide timely maintenance service due to conditions beyond its control, including but not limited to delays in obtaining parts, equipment, or labor difficulties. H & H Repair shall not be held liable for any failure to perform the services to the extent that the failure is caused by Homeowner’s lack of cooperation. This Agreement does not constitute a warranty or representation with regard to the Property or the inspection of the Property but is a preventive maintenance contract designed to provide early treatment of conditions that might lead to further damage to the Property. This Agreement is not intended to identify or prevent all conditions from occurring, which may require maintenance, repair, or replacement. H & H Repair shall not be liable for issues which were not identified by H & H Repair in its visual inspection of the Property. H & H Repair does not guarantee against future damages or failures after the home inspection or repair. H & H Repair will not be responsible for damages, delays, or defects of any kind that are caused by factors beyond H & H Repair’s direct control, including but not limited to, inclement weather, labor strikes, wars, acts of God, and/or the inability to obtain materials. H & H Repair is not liable for any damages caused by misuse or abuse, fire, freezing, electrical power surges, and/or water failure, water damage, lightning, mud, earthquake, soil movements, storms, accidents, pest damage, or ordinary wear and tear. H & H Repair shall not be liable for any damages to the Property arising from the acts or omissions of third parties, including, without limitation, Homeowner and other residents of the Property, and their agents. Homeowner agrees to hold H & H Repair harmless from and against any and all damages, costs, expenses, claims and liabilities arising from any of the foregoing exclusions.
9: HOMEOWNER’S RESPONSIBILITIES
- Homeowner will be the primary contact, point of authorization and shall be responsible for facilitating all communications with H & H Repair, approving H & H Repair’s work items, and scheduling any meetings. Homeowner’s timeliness of communications and review will directly affect H & H Repair’s ability to meet agreed upon schedule deadlines. Homeowner represents and warrants that each owner of the Property has executed this Agreement.
- Homeowner is responsible for the condition of the Property and the existing materials contained therein. The determination of the presence of any hazardous material (as defined by the EPA) or pollutants (as defined by H & H Repair’s general liability insurance policy, e.g., without limitation, asbestos, molds, or acids, excluding lead in pre-1978 houses) is solely the responsibility of the Homeowner. H & H Repair has not made and is not required to make any determination of whether the premises contains or is free of hazardous material or pollutants. The Homeowner warrants and represents that there are no hazardous materials or pollutants present in the area to be disturbed by any Service contemplated by this Agreement.
- To ensure the effectiveness and safety of H & H Repair’s Service, you agree to:
- Provide Access: Ensure H & H Repair’s technicians have safe and unimpeded access to the exterior and interior areas of your property as needed for the performance of the Service.
- Maintain Conditions: Follow any instructions provided by H & H Repair’s technicians regarding property conditions that may impact service effectiveness.
- Should hazardous material or pollutants, excluding lead in pre-1978 houses, be discovered at any time, it will be the Homeowner’s responsibility to:
- provide any and all testing; have material properly removed and disposed of;
- pay H & H Repair for any and all work completed up to the time of discovery; and
- indemnify and hold harmless H & H Repair and any subcontractor of H & H Repairs or vendors of H & H Repair for any injuries or damages incurred as a result of any such hazardous material or pollutants, including, without limitation, any liability relating to clean up expense, personal injury, or property loss.
- Homeowners are responsible for removing any and all interior/exterior obstructions prior to the scheduled start date. Homeowners are also responsible for removing any pictures, wall hangings, or loose or fragile items from interior walls that may impair or impede H & H Repair’s service. H & H Repair will not be held liable for damage to any items not removed.
10: ADDITIONAL TERMS
- H & H Repair shall have the right to use third parties in performance of its obligations and the Services hereunder.
- H & H Repair and Homeowner warrant that they have the right to enter into this Agreement. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND H & H REPAIR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
- LIABILITY CAP & DISCLAIMER OF DAMAGES. H & H REPAIR’S (AND ITS AFFILIATES’, SUBCONTRACTORS’, AND AGENTS’) LIABILITY ARISING OUT OR RELATED TO THE AGREEMENT WILL NOT EXCEED, IN THE AGGREGATE, THE FEES ACTUALLY PAID TO H & H REPAIR FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM.
In no event will H & H Repair (or its affiliates, subcontractors, or agents) be liable to Homeowner for any consequential, indirect, special, incidental, or punitive damages or any loss of revenue, goodwill, or profits, arising out or related to this Agreement.
The liabilities limited by this Agreement apply: (a) to liability for negligence; (b) regardless of the form of action, whether in contract, tort, strict liability, or otherwise; (c) even if H & H Repair is advised in advance of the possibility of the damages in question and even if such damages were foreseeable; (d) attorney’s fees and costs, and (e) even if Homeowner’s remedies fail of their essential purpose. If applicable law limits the application of the limitation of liability, H & H Repair’s (and its affiliates’, subcontractors’, and agents’) liability will be limited to the maximum extent permissible.
11: DISPUTE RESOLUTION
Any dispute, controversy or claim arising under, out of or relating to this Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to arbitration before the American Arbitration Association (“AAA”) in accordance with the AAA Commercial Arbitration Rules. The place of arbitration shall be Ravenna, Ohio. The language to be used in the arbitral proceedings shall be English. The parties may apply to a court of competent jurisdiction in Summit County, Ohio or in Portage County, Ohio for a temporary restraining order, preliminary injunction, or other interim or conservatory relief as necessary, without breach of this Section and without abridgment of the powers of the arbitrator. The arbitrator may award any form of individual or equitable relief, including injunctive relief. Any award will be final and conclusive to the parties and may be entered in any court of competent jurisdiction. You agree to the entry of injunctive relief to stop any lawsuit or to remove you as a participant in such a suit. This Agreement does not constitute a waiver of any of your rights and remedies to pursue a claim individually in binding arbitration, but you agree you may not bring, join, or participate in any class action lawsuit. This provision preventing you from bringing, joining or participating in class action lawsuits is an independent covenant.
Notwithstanding anything contained hereunder, Homeowner agrees and acknowledges that no dispute resolution or litigation shall be pursued by Homeowner for any breach of this Agreement until and unless H & H Repair has had an opportunity to cure any alleged breach. Homeowner agrees to provide H & H Repair with a detailed description of any alleged failure and a description of the steps that Homeowner understands must be taken by H & H Repair to resolve the alleged failure. H & H Repair shall have thirty (30) days from H & H Repair’s receipt of Homeowner’s notice to complete the cure.
12: TERMINATION OF AGREEMENT
H & H Repair has the right to terminate and cancel this Agreement if
- Homeowner fails to provide safe and reasonable access to the Property where the services are to be performed.
- In the event of a change in federal, state, or local law as it relates to this Agreement.
- In the event fees are not paid by Homeowner on or before their due date.
- Homeowner fails to fully cooperate with the H & H Repair during the term of this Agreement.
- Homeowner otherwise breaches the terms of this Agreement
H & H Repair shall be released from any further obligation under the Agreement upon notice of termination to Homeowner. Failure of H & H Repair to note any of the above conditions to Homeowner does not alter Homeowner’s responsibility under this paragraph or waive H & H Repair’s ability to terminate this Agreement.
Homeowner will pay H & H Repair on a monthly or annual prepay basis. H & H Repair may terminate this Agreement if payment is not received prior to performing the service. In the event legal action is necessary to collect any amount due to H & H Repair, H & H Repair shall be entitled to recover from Homeowner all reasonable costs of collection, including by not limited to reasonable attorney’s fees and expenses. In addition to any outstanding amount due, Homeowner will pay H & H Repair interest on past due fees at a rate of 1.5% per month or 18% annually, or the highest amount allowed by applicable law.
13: MISCELLANEOUS PROVISIONS
- Choice of Law - This Agreement shall be governed and interpreted by the laws of the State of Ohio without regard to the conflicts of law provisions of any state or jurisdiction. The state or federal courts sitting in Summit County and Portage County, Ohio shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement, and you hereby consent to the jurisdiction of such courts.
- Entire Agreement - The provisions of this Agreement constitute the entire agreement between the Parties with respect to the subject matter herein and supersede all prior agreements, oral or written, and all other communications relating to the subject matter of the Agreement. The Agreement may only be modified or supplemented by a writing signed by the authorized representatives of H & H Repair. After the initial monthly or annual term, until such time as H & H Repair amends this Agreement, this Agreement will continue to define the terms and conditions of service. H & H Repair reserves the right to amend the terms of this Agreement and/or adjust the monthly fee or annual fee any time after a monthly or annual term has expired.
- Each provision of this Agreement is a separately enforceable provision - If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Agreement will remain in full force and effect and will be interpreted, to the extent possible, to achieve its purposes without the invalid, illegal, or unenforceable provision. Any waiver made by H & H Repair of any term or condition of this Agreement shall not be deemed or construed to be a waiver of such term or condition for the future, or any subsequent breach thereof. The headings of this Agreement are provided for reference only and will not be used as a guide to interpretation. All notices under the Agreement will be in writing and will be considered given as of twenty-four (24) hours after sending by electronic means (such as fax or e-mail as duly provided by the authorized representatives of either Party for the said purpose) or by overnight air courier service, or as of forty-eight (48) hours after deposit in the U.S. mail (certified, return receipt requested) to the addresses mentioned hereinabove. H & H Repair shall not be liable to you for any delay or failure of H & H Repair to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of H & H Repair. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, labor strike, or delays by you in performing any requirements hereunder. You may not assign or transfer this Agreement without the prior written consent of H & H Repair.
- Coverage - This Agreement between H & H Repair and Homeowner covers only the primary structure listed on the Agreement as Property. No fences, detached garages, outbuildings, or other buildings or construction at the service address are covered by this Agreement unless otherwise specified in writing.
- Workmanship - The work will be performed in a workmanlike manner. All equipment and/or devises used by H & H Repair in or around the Property remain the property of H & H Repair unless otherwise specified in writing. All materials provided under this Agreement shall be new and as designated, unless otherwise specified. H & H Repair may, in its discretion, change or substitute any materials to be used in the work hereunder, provided, however, that the substituted materials shall be of equal kind and quality. All surplus materials shall remain the property of H & H Repair. H & H Repair shall remove all debris resulting from the work hereunder and leave the area in “broom clean” condition upon completion.
- Permits and Approvals - Homeowner is responsible for obtaining any necessary permits or approvals required for the work to be performed, unless otherwise agreed in writing. H & H Repair assumes no responsibility for the existing property or buildings meeting local building and zoning code requirements. H & H Repair shall maintain a liability policy of insurance during the term of this Agreement.
- H & H Repair will not be responsible for slight scratching or denting of aluminum or metal, fractures to driveway or concrete, or damage to plants or shrubbery. H & H Repair is not responsible for damage to wood trim or decking. H & H Repair is not responsible for any pre-existing defects.
- Disclaimer - H & H Repair’s checkup inspection “Home Physical” is a walkthrough visual inspection and not to be considered in line or equivalent to a certified home inspection. H & H Repair is not a licensed inspector. H & H Repair does not guarantee any of its findings or assume responsibility for any current or future issues with the home or the appliances or mechanical failures. The H & H Repair checkup inspection is similar to a maintenance manual description of what homeowners should be inspecting each year.