SIGNATURE HEATING, COOLING, AND PLUMBING, LP
STANDARD TERMS AND CONDITIONS FOR SALE OF PRODUCTS AND SERVICES
1. Scope of Terms and Conditions.
a. Entire Agreement; Supersession. These Terms and Conditions for Sale of Products and Services (these “Terms”) are the only terms that govern the provision of equipment, materials, goods and/or products (“Products”) and services (“Services”) by Signature Heating, Cooling, and Plumbing, LP (“Seller”) to the buyer named on the accompanying invoice (“Buyer”). The accompanying invoice (the “Invoice”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Any additional or different terms or conditions proposed by Buyer, whether contained in any purchase order, acknowledgment, confirmation, or other document or communication, are hereby expressly objected to and rejected and shall be of no force or effect. Such additional or different terms shall be deemed material alterations to this Agreement.
b. Acceptance; Binding Effect. Buyer shall be deemed to have accepted and agreed to be bound by these Terms upon the earlier of: (i) Buyer’s acceptance of delivery of any Products; (ii) Buyer’s engagement of Seller to provide any Products or to perform or procure any Services; or (iii) Buyer’s submission of an order to Seller. These Terms shall govern notwithstanding any conflicting or additional terms proposed by Buyer, unless Seller and Buyer have entered into a separate written agreement, duly executed by both parties, that expressly governs the sale of the applicable Products or Services, in which case such separate written agreement shall control.
c. Amendments; Versions. Seller may modify these Terms from time to time without prior notice; provided, however, that the version of the Terms in effect as of the date Buyer signs the Invoice shall govern the transaction evidenced by such Invoice, unless otherwise expressly agreed in writing by Seller and Buyer.
2. Access to Site.
Buyer shall provide and hereby grants Seller and its employees, agents, and subcontractors timely, safe, and reasonable access to the property at which the Products and Services are to be furnished (the “Site”), as necessary for the performance of the Services. Buyer acknowledges that unforeseen Site conditions or changes requested by Buyer may result in additional labor, materials, time, or costs. Any such additional work shall be documented in writing and shall not proceed without Buyer’s approval of the associated change order, except in the event of an emergency condition requiring immediate action to prevent property damage or personal injury.
3. Buyer’s Acts or Omissions.
If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall: (a) not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay; and (b) be entitled to recover from Buyer the reasonable value of all labor performed, materials furnished, and overhead incurred through the date of suspension or termination, together with any demobilization or remobilization costs; provided, however, that in no event shall such compensation be less than Seller’s actual costs incurred.
4. Buyer Representations and Warranties.
Buyer hereby represents and warrants to Seller that:
a. Buyer has full right, power, and authority to enter into this Agreement and to order the Products and Services described in the applicable Invoice, and such execution and performance do not violate any agreement or obligation binding on Buyer;
b. Buyer has reviewed and approves the scope of work, prices, specifications, assumptions, exclusions, and conditions set forth in the Invoice, and acknowledges that such terms are commercially reasonable and satisfactory in all respects;
c. Buyer shall timely remit all payments in accordance with the terms of this Agreement and the Invoice, without setoff, counterclaim, or deduction, except as expressly permitted herein;
d. Buyer is at least eighteen (18) years of age and has the legal capacity to enter into binding contractual obligations;
e. Buyer is the legal owner of the Site, or is an authorized agent or lawful tenant of the owner with full authority to authorize the work contemplated herein;
f. the Site is safe, accessible, and suitable for the performance of the Products and Services, including, without limitation, having adequate utilities, structural integrity, clear access to equipment locations, and compliance with applicable codes, and Buyer has disclosed to Seller all known conditions that could affect the work, including hazardous materials, concealed conditions, or prior defects;
g. all information provided by Buyer to Seller, including measurements, system specifications, usage requirements, and Site information, is accurate and complete, and Seller may rely upon such information without independent verification;
h. Buyer shall not interfere with or hinder Seller’s performance of the Products and Services, and acknowledges that delays or additional costs caused by Buyer, third parties, or Site conditions may result in change orders or additional charges;
i. Buyer has read and understands this Agreement in its entirety and agrees to be bound by all terms and conditions contained herein, including any limitations of liability, warranty exclusions, and dispute resolution provisions;
j. if Buyer furnishes, specifies, directs the use of, or requests that Seller install, connect to, service around, or integrate with any parts, equipment, devices, controls, accessories, materials, or components not sold by Seller, including without limitation any thermostat, smart thermostat, sensor, relay, control board, zoning component, low-voltage device, app-enabled device, or other control device (collectively, “Buyer-Supplied Parts”), Buyer does so at Buyer’s sole risk and acknowledges and agrees that Seller shall have no responsibility or liability for the condition, compatibility, performance, interoperability, programming, configuration, operation, malfunction, defect, failure, or consequences of use of any such Buyer-Supplied Parts, whether before, during, or after installation or attempted integration; and
k. Buyer has the full right to provide all Buyer-Supplied Parts for use in connection with the Services and that any specifications, instructions, or compatibility information provided by Buyer concerning such Buyer-Supplied Parts are accurate and complete.
5. Excluded Services.
Except as expressly set forth in the applicable Invoice, the Services do not include, and Seller shall have no obligation to perform, furnish, or be responsible for, any services, work, materials, or activities outside the expressly stated scope, including, without limitation, the following:
a. the repair, replacement, relocation, or disturbance of any public or private utilities, facilities, or underground installations that are not properly identified, located, or marked by the applicable utility locating service or governmental authority, including, without limitation, water lines, irrigation lines, and related appurtenances;
b. the importation, exportation, removal, or disposal of soil, fill, or spoils from the project site, unless expressly stated otherwise in writing by Seller;
c. the hauling, removal, or disposal of green waste, vegetation, or organic debris, unless expressly stated otherwise in writing by Seller;
d. any re-vegetation, re-landscaping, restoration, or aesthetic remediation of areas disturbed in connection with the Services, including, without limitation, the removal, replacement, or restoration of gravel, decorative rock, hardscape, plantings, or other landscaping materials;
e. painting, drywall repair, patchwork, cosmetic finishing, surface restoration, or similar work following installation, modification, or repair activities;
f. the detection, testing, containment, remediation, or removal of mold or hazardous materials, including without limitation, asbestos; and
g. compaction, stabilization, or restoration of soil, ground, or surfaces surrounding septic tanks, leach fields, or disposal treatment fields.
6. Site Conditions; Additional Work.
a. Damage to Site; Buyer Responsibility for Restoration. Seller shall not be responsible for any disturbance or damage to Site soil, lawn, yard, landscaping, hardscaping, driveways, walkways, or other surfaces, including without limitation vehicle tracks or equipment marks, arising out of or related to performance of the Services, unless expressly agreed to in writing by Seller. Buyer shall be solely responsible, at its cost and expense, for reconditioning, restoring, repairing, or replacing any such disturbed or damaged areas unless such restoration is expressly included in the scope of Services set forth in the applicable written agreement or invoice.
b. Concealed/Subsurface Conditions; Additional Costs. If, in the course of performing the Services, Seller encounters concealed or subsurface conditions, including, without limitation, rock, quicksand, underground water, or other unforeseen site conditions that differ materially from those ordinarily encountered, Buyer shall be responsible for all additional labor and materials reasonably required by Seller to address such conditions and to complete the Services. Such additional labor shall be billed at Seller’s then-current standard rates, and materials shall be billed at Seller’s cost plus applicable markup.
c. Roof Access; Roof Damage Disclaimer. To the extent performance of the Services requires access to or work on or around any roof surface, Buyer acknowledges and agrees that such access and work may involve walking on, placing equipment on, or otherwise interacting with roofing materials. Seller shall not be responsible or liable for any damage to the roof or roofing materials, including without limitation cracked, broken, displaced, or loosened roof tiles or shingles, or damage to underlayment or related components, arising out of or related to the reasonable and customary performance of the Services. Buyer shall be solely responsible, at its cost and expense, for any inspection, repair, or replacement of roof materials unless expressly included in writing in the scope of Services.
7. Cancellation.
a. Three-Day Cooling-Off Period. Buyer may cancel this Agreement, without penalty or obligation, within three (3) business days after the date of execution of the applicable Invoice (the “Cancellation Period”). If Buyer timely cancels by delivering or mailing to Seller a signed and dated written notice of cancellation, Seller shall, within ten (10) business days after receipt of such notice, return to Buyer any property traded in, refund all payments made by Buyer under this Agreement, and cancel and return any negotiable instrument executed by Buyer and terminate any security interest arising out of the transaction.
b. Cancellation After Cooling-Off Period; Fees. Except as provided in Section 7(a) above, any cancellation by Buyer after expiration of the Cancellation Period shall result in forfeiture of any deposits previously paid. If Buyer cancels after Seller has commenced performance of the Services or has incurred costs in preparation thereof, Seller may assess a (i) cancellation fee equal to ten percent (10%) of the total contract price, and (ii) a restocking fee of fifteen percent (15%) to any special-order or non-stock Products canceled after order placement. Buyer and Seller acknowledge and agree that the cancellation fee, restocking fee, and forfeited deposits described herein constitute a reasonable estimate of the damages Seller would incur as a result of such cancellation.
8. Pricing; Estimates.
a. Pricing; Invoice Controls. All pricing for Products and Services shall be as set forth in the applicable Invoice. Unless otherwise expressly stated in writing, all prices are net of and reflect any applicable discounts, promotions, coupons, or rebates, and include applicable sales tax, if required by law.
b. Deposits for Large Projects. For any Services with a total price exceeding One Thousand Dollars ($1,000.00), Seller may collect a non-refundable deposit equal to fifty percent (50%) of the total estimated price prior to scheduling or commencement of the Services.
c. Financed Projects; Funding Submission. If the Services are financed through a third-party financing arrangement, Seller shall be entitled to submit for funding fifty percent (50%) of the total Invoice amount upon Buyer’s execution of the Invoice or work authorization and confirmation of financing approval.
d. Estimate Validity; Price Revision. Any estimate issued by Seller shall be valid for a period of thirty (30) days from the date of issuance, unless otherwise expressly stated in writing. If the Services are not scheduled and commenced within such thirty (30) day period, Seller reserves the right to revise pricing prior to commencement of the Services.
e. Return-Trip Fee. If Buyer requests that Seller return to the Site on a date other than as originally scheduled, and such return visit is not attributable to Seller’s fault or omission, Seller may charge a return trip fee of One Hundred Twenty-Five Dollars ($125.00) per additional trip.
9. Payment Terms.
Except as otherwise expressly set forth in the applicable Invoice, payment in full for all Products, labor, materials, equipment, and Services furnished under this Agreement shall be due upon substantial completion of the Services.
10. Authorization for Payment Processing.
Buyer authorizes Seller, in its discretion, to process payment by initiating debit entries, processing electronic funds transfers using check information, processing check transactions, or charging any credit or debit card provided by Buyer for amounts due under this Agreement. Buyer agrees to comply with the terms of any applicable account or cardholder agreement.
11. Returned Payments.
A service charge of up to Thirty Dollars ($30.00) shall apply to any check or other payment returned, dishonored, or rejected for insufficient funds or for any reason not attributable to Seller.
12. Late Charges; Collection Costs.
Any amount not paid when due shall accrue interest at the rate of one and a half percent (1.5%) per month, or the maximum rate permitted by applicable law, whichever is less, until paid in full. Buyer shall be deemed to have accepted the Services unless Buyer provides written notice of any alleged deficiency within thirty (30) days after substantial completion. Buyer shall be responsible for all costs incurred by Seller in collecting delinquent amounts, including reasonable attorneys’ fees and court costs.
13. Membership.
a. Membership Fees; Billing Obligation. If Buyer enrolls in or purchases any membership or service plan offered by Seller (a “Membership”), Buyer shall pay all applicable Membership fees and charges in accordance with the terms of enrollment and the applicable Invoice.
b. Minimum Term; Renewal. A minimum enrollment term of twelve (12) consecutive months shall apply from the date of initial enrollment. Following expiration of the Initial Membership Term, the Membership shall continue on a month-to-month basis unless and until terminated by Buyer upon written notice to Seller.
c. Termination Processing; Limited Proration. Termination shall not be effective until processed by Seller, which processing period may take up to fourteen (14) days from Seller’s receipt of Buyer’s written notice. Buyer shall remain responsible for all Membership fees and charges accruing through the effective date of termination.
14. Subcontractors.
Seller may, in its sole discretion and without the need for notice to or consent from Buyer, engage one or more subcontractors, suppliers, service providers, or other third parties to perform all or any portion of the Services. Seller shall remain responsible for the performance of the Services in accordance with this Agreement.
15. Zoning and Permits.
Buyer shall, at its sole cost and expense, timely provide Seller with all information, documentation, approvals, and cooperation reasonably necessary in connection with the Services. Unless expressly stated otherwise in the applicable Invoice, Buyer shall be solely responsible for applying for, obtaining, and maintaining all permits, licenses, inspections, and governmental approvals required for the Services.
16. Change Orders; Extra Work.
a. Requirement for Written Change Orders. No modification, alteration, or deviation from the scope of work set forth in the applicable Invoice shall be binding upon Seller unless authorized pursuant to a written change order executed by both Buyer and Seller (a “Change Order”).
b. No Obligation to Perform Extra Work Absent Change Order. Seller shall have no obligation to perform any extra work or implement any change unless and until a Change Order has been executed by both parties.
17. Substitutions.
If Seller is unable, despite commercially reasonable efforts, to obtain any Products specified in the applicable Invoice due to unavailability, supply chain disruption, manufacturer discontinuation, or other causes beyond Seller’s reasonable control, Seller shall have the right, in its reasonable discretion, to substitute Products of comparable quality and functionality.
18. Excess Materials.
All Products delivered to the Site by Seller shall remain the property of Seller unless and until incorporated into the work and paid for in full by Buyer. Any surplus, excess, or unused Products remaining upon completion of the Services shall be deemed Seller’s property.
19. Risk of Loss.
Risk of loss or damage to all Products furnished by Seller shall pass to Buyer upon delivery to the Site, regardless of whether such Products have been installed or incorporated into the work.
20. Supervision.
Seller shall supervise and direct the performance of the Services at the Site using commercially reasonable skill and care. Seller shall have sole control over, and responsibility for, the construction means, methods, techniques, sequences, procedures, and coordination of the Services.
21. Limited Warranty; Disclaimers; Limitations.
a. Limited Labor Warranty. Seller warrants solely to Buyer that labor performed by Seller under this Agreement shall be free from defects in workmanship for a period of thirty (30) days from the date of substantial completion, unless a different labor warranty period is expressly set forth in the applicable Invoice; provided that, labor consisting of the installation of equipment by Seller shall be warranted for a period of one (1) year from the date of substantial completion.
b. Manufacturer Warranties; Assignment. All Products furnished by Seller are subject solely to the applicable manufacturer’s warranty, if any. Seller makes no warranty whatsoever with respect to such Products (other than a warranty of title).
c. Exclusions. The foregoing warranties do not apply to, and Seller shall not be liable for, any damage, defect, failure, or loss resulting from: (i) ordinary wear and tear; (ii) misuse, abuse, neglect, alteration, or improper operation; (iii) failure to follow manufacturer instructions or to perform recommended maintenance; (iv) service, repair, or modification by persons other than Seller without Seller’s prior written authorization; (v) acts of God; (vi) structural deficiencies or pre-existing conditions; or (vii) any cause beyond Seller’s reasonable control.
d. Conditions to Warranty Coverage. Warranty coverage is conditioned upon (i) Buyer’s full and timely payment of all amounts due under this Agreement; (ii) Buyer providing written or telephonic notice of the alleged defect to Seller within the applicable warranty period; (iii) Seller being given a reasonable opportunity to inspect and repair the alleged defect before any third party performs work; and (iv) Buyer’s compliance with all maintenance obligations.
e. Non-Transferability. All warranties provided herein are personal to the original Buyer and are not transferable to any subsequent owner of the property, unless expressly agreed in writing by Seller.
f. Exclusive Remedy. WITH RESPECT SOLELY TO ANY BREACH OF THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION, SELLER’S SOLE OBLIGATION AND BUYER’S EXCLUSIVE REMEDY FOR SUCH BREACH SHALL BE, AT SELLER’S OPTION, (I) REPAIR OR REPLACEMENT OF DEFECTIVE WORKMANSHIP, OR (II) REFUND OF THE AMOUNTS ACTUALLY PAID TO SELLER FOR THE SPECIFIC DEFECTIVE SERVICES GIVING RISE TO THE WARRANTY CLAIM.
g. Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY AND SPECIFICALLY SET FORTH IN THIS AGREEMENT, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PRODUCTS OR SERVICES PROVIDED HEREUNDER. SELLER EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, HABITABILITY, WORKMANLIKE CONSTRUCTION, DESIGN, CONDITION, QUALITY, DURABILITY, AND NON-INFRINGEMENT.
h. Limitation of Actions; Acceptance. Any legal action arising out of or relating to the Services or this Agreement must be commenced within one (1) year from the date of substantial completion of the Services, to the fullest extent permitted by law.
22. Design Conditions.
a. Design Standards; Manual J Basis. All heating, ventilation, and air conditioning Products furnished by Seller are selected and sized in accordance with generally accepted industry standards, including, where applicable, ACCA Manual J design criteria.
b. Limitations on Performance; Environmental Factors. Seller shall have no responsibility or liability for heating or cooling performance beyond applicable Manual J standard design temperatures, elevated indoor humidity levels, condensation, ductwork sweating, or moisture accumulation arising from building infiltration rates, structural conditions, or other building-specific or environmental factors.
c. Reliance on Buyer-Provided Information. All load calculations, system sizing, and Product selections are based upon information provided by Buyer. Seller shall be entitled to rely upon the accuracy and completeness of such information.
d. Buyer Refusal of Testing; Sizing Consequences. If Buyer elects not to authorize independent testing or evaluations, Seller may size replacement HVAC Products based on the capacity and configuration of the existing system and shall have no responsibility for issues arising from over-sizing or under-sizing.
23. Performance or Condition of Existing Equipment.
a. No Warranty for Pre-Existing Equipment. Seller makes no representation or warranty regarding the condition, performance, functionality, capacity, or compatibility of any existing or pre-existing equipment, ductwork, controls, piping, plumbing fixtures, or systems that are not expressly replaced or installed by Seller.
b. Buyer Acknowledgement; Release for Pre-Existing Conditions. Buyer acknowledges that pre-existing equipment and materials may be fragile, obsolete, or no longer serviceable, and that the reasonable performance of the Services may result in damage to such pre-existing items. To the fullest extent permitted by applicable law, Buyer releases Seller from any claims arising out of or relating to the condition or failure of any such retained or pre-existing equipment.
c. No Warranty for Failures Caused by Retained Equipment. Seller’s warranty shall not apply to any failure, malfunction, or performance issue caused in whole or in part by Buyer-Supplied Parts or any retained or pre-existing equipment.
d. Incidental Damage from Reasonable Performance. Seller shall not be responsible or liable for incidental or consequential damage to sidewalks, driveways, steps, walls, doors, finishes, landscaping, or other fixtures or surfaces resulting from the reasonable performance of the Services.
24. Existing Line Set.
Seller shall have no responsibility or liability for inadequate heating or cooling performance arising from the condition of any existing refrigerant line set retained by Buyer. If Buyer rejects Seller’s recommendation to repair or replace an existing line set, any warranty provided by Seller shall be void.
25. Existing Gas Pipe.
Seller makes no representation or warranty regarding the condition, integrity, or compliance of any existing gas piping that is concealed, inaccessible, or not readily observable. Buyer shall be responsible for all additional costs incurred in connection with pressure testing, leak detection, repair, or replacement of existing gas piping.
26. Personal Property.
Buyer is solely responsible for removing, protecting, and securing all personal property located in or near the project area. Seller shall not be responsible or liable for loss of or damage to Buyer’s personal property arising out of or relating to the performance of the Services.
27. Existing Attic Access Stairs.
Buyer acknowledges that existing attic access stairs, pull-down ladders, steps, framing, or related components may be unsafe, noncompliant, deteriorated, or otherwise unsuitable. Seller shall have no responsibility or liability for the repair, replacement, or restoration of any attic access stairs or related components that must be removed, modified, or disturbed to perform the Services.
28. Mold.
Seller makes no representation or warranty regarding the presence, absence, identification, remediation, or effects of mold, mildew, fungi, spores, asbestos, lead, or other hazardous or regulated materials. Seller reserves the right to suspend or terminate the Services until such conditions are properly remediated by Buyer at Buyer’s sole cost and expense.
29. Insurance.
Buyer shall, at its sole cost and expense, procure, maintain, and keep in full force and effect property insurance covering the entire Site and all Services performed, in an amount not less than the full insurable replacement value thereof. To the fullest extent permitted by applicable law, Buyer shall waive all rights of recovery, claims, or subrogation against Seller for loss or damage covered by such property insurance.
30. Limitation of Liability.
a. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
b. Aggregate Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER UNDER THE APPLICABLE INVOICE FOR THE PRODUCTS AND SERVICES SOLD HEREUNDER.
31. Indemnification.
Buyer shall indemnify, defend, and hold harmless Seller, its affiliates, and their respective directors, officers, employees, agents, sureties, subcontractors, suppliers, successors, and permitted assigns from and against any and all losses, costs, expenses, damages, injuries, claims, demands, obligations, liabilities, judgments, fines, penalties, interest and causes of action, including without limitation, administrative and legal costs and reasonable attorneys’ fees, arising out of or resulting from: (a) any Buyer-Supplied Parts; (b) injury or death to any person, or damage to property, resulting from the willful, fraudulent, or negligent acts or omissions of Buyer; (c) any failure of Buyer to comply with the requirements of this Agreement; and (d) Buyer’s breach of applicable law.
32. Termination.
Seller may terminate this Agreement upon seven (7) days’ prior written notice to Buyer if: (a) Buyer fails to pay any amount due under this Agreement when due; (b) Seller reasonably believes that Buyer’s ability or willingness to pay has been materially impaired; or (c) Buyer otherwise fails to perform or comply with any provision of these Terms.
33. Retention of Title; Lien.
a. Title Retention Until Payment. Title to any Products shall remain vested in Seller until Seller has received final and complete payment of all amounts due. In the event Buyer fails to remit payment, Seller shall have the right, subject to applicable law, to enter the Site and remove any Products furnished and installed by Seller that have not been fully paid for.
b. Payment/Lien Rights Acknowledgement. Buyer acknowledges that, subject to applicable law, an owner of property may have the right to make payment directly to persons or entities furnishing labor or materials, to withhold amounts otherwise due under a contract, or to require lien waivers or releases as a condition of payment.
34. SMS; Marketing Calls.
If Buyer affirmatively elects on the Invoice to receive telephone calls and/or text messages (“SMS”) from Seller, Buyer hereby provides express written consent to Seller contacting Buyer at the telephone number(s) provided, including via voice calls and SMS, for purposes that may include service notifications, account-related communications, appointment reminders, and promotional or marketing offers. Buyer may opt out of receiving text messages at any time by replying “STOP” to any SMS message.
35. Force Majeure.
Seller shall not be liable or responsible to Buyer for any failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from acts beyond Seller’s control, including acts of God, flood, fire, earthquake, epidemics, pandemics, war, government order or law, strikes, labor stoppages, or other events beyond the control of Seller.
36. Further Assurances.
Upon Seller’s reasonable request, Buyer shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.
37. Waiver.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure or delay by Seller to exercise any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof.
38. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties.
39. Assignment.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void.
40. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein is intended to confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever.
41. Governing Law.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the state in which the Services are performed, without giving effect to any choice or conflict of law provision or rule.
42. Submission to Jurisdiction.
Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted exclusively in the federal or state courts of the State in which the Services are performed, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts.
43. Notices.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the Invoice. All notices shall be delivered by personal delivery, nationally recognized overnight courier, email (with confirmation of transmission), or certified or registered mail.
44. Severability.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
45. Survival.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.