Service Provider and Customer agree as follows:
1. Services. Service Provider shall provide to Customer the services (the “Services“) set out in one or more itemized invoices to be issued by Customer and accepted by Service Provider. The initial accepted itemized invoice shall be incorporated herein by reference. Additional invoices shall be deemed issued and accepted only if signed by the Service Provider Contract Manager and the Customer, appointed pursuant to 2.1(a) and 3.1, respectively.
2. Disclaimer. This contract creates a mortgage or lien against your property to secure payment and may cause a loss of your property if you fail to pay the amount agreed upon. You have the right to consult an attorney. You have the right to rescind this contract within three (3) business days prior to the work being completed by notifying the contractor in writing that you are rescinding the contract. By executing this Agreement, you agree to execute a separate acknowledgment of this provision.
3. Service Provider Obligations.
Service Provider shall:Designate employees or subcontractors that it determines, in its sole discretion, to be capable of filling the following positions:
(a). A telephone dispatcher to act as its authorized representative with respect to all matters pertaining to this Agreement.
(b) A number of employees or subcontractors that it deems sufficient to perform the Services set out in each invoice, (collectively, with the telephone dispatcher, “Provider Representatives“).
(c) Maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Service Provider in providing the Services. During the Term, upon Customer’s written request, Service Provider shall allow Customer or Customer’s representative to inspect and make copies of such records in connection with the provision of the Services; provided that Customer provides Service Provider with at least seven (7) business days advance written notice of the planned inspection, and any such inspection shall take place during regular business hours, and any such inspection shall occur no more than once per thirty (30) day period.
4. Customer Obligations.(a) Respond promptly to any reasonable requests from Service Provider for instructions, information, or approvals required by Service Provider to provide the Services.
(b) Cooperate with Service Provider in its performance of the Services and provide access to Customer’s premises, as required to enable Service Provider to provide the Services.
(c) Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Service Provider’s provision of the Services.
(d) File any service-related complaints within seven (7) days of identifying the underlying incident or damage via email to [email protected], or by calling 1 (877) 577-1490 during regular business hours Monday through Friday.
5. Fees and Expenses. In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in the applicable invoice. Payment to Service Provider of such fees and the reimbursement of expenses pursuant to this Section 5 shall constitute payment in full for the performance of the Services. Unless otherwise provided in the applicable invoice, said fee will be payable within twenty-four (24) hours of receipt by the Customer of an invoice from Service Provider but in no event more than thirty (30) days after completion of the Services performed pursuant to the applicable invoice.
For the avoidance of doubt, a nonrefundable one-third (⅓) deposit for garage door installation services outlined in the applicable invoice shall be due upon execution of this Agreement, subject to the Maryland Door to Door Sales Act.
5.1 Customer shall reimburse Service Provider for all reasonable expenses incurred in accordance with the invoice, within twenty-four (24) hours of receipt by the Customer of an invoice from Service Provider accompanied by receipts and reasonable supporting documentation.
Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Service Provider’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
Except for the invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of (a) the rate of ten percent (10%) per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Service Provider for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
6. Forms of Payment. Applicable forms of payment include debit or credit card, Cashapp, personal checks, certified checks or cash. All payments made by check or cash must be provided in person immediately upon completion of services. Checks and cash payments will not be accepted via mail.
Service Provider warrants that it shall perform the Services according to the terms set below:
(a) Garage door installation is subject to a five (5) year labor warranty.
(b) Garage door openers are subject to a five (5) year labor warranty.
(c) Garage door spring replacement is subject to a three (3) year labor warranty.
(d) All other repairs are subject to a thirty (30) day labor warranty.
Garage door installation customers must conduct yearly maintenance of garage doors following service provider’s completion of the services. Regular maintenance includes: lubrication of customer door and motor components, tightening of all bolts and screws, -25 point safety check, and recalibration of spring systems. Failure to complete yearly maintenance voids this warranty.
7.1 Assignment of Equipment, Material and Appliance Warranties.
Service Provider hereby assigns (to the extent they are assignable) and conveys to Customer all manufacturers’ and suppliers’ warranties, together with operating instructions if available, on all goods, material, equipment and appliances provided to Service Provider.
Service Provider has provided certain material, equipment, appliances, and goods that have been manufactured and or furnished by third party vendors, supply houses, lumberyards, distributors, and manufacturers (“products”). Service Provider will use its best efforts so that such products are new and purchased from reputable suppliers. Service Provider also agrees to properly install such materials.
In the event a product is considered defective by the Customer, Service Provider shall use its best efforts to contact the supplier or manufacturer and receive a free replacement. Service Provider shall then within a commercially reasonable time reinstall that new product without charge.
Service Provider did not manufacture such products. Service Provider warrants its services and workmanship only. Accordingly, Service Provider cannot warrant or guarantee these products themselves. Service Provider will not be liable for latent defects in any product (not observable on reasonable inspection). Customer’s sole remedy for defective products, other than the obligation of Service Provider to replace the same, is against such third party vendors and their warranties, if any. This limitation still applies and a warranty is not deemed made, even if Service Provider has furnished the customer with product brochures, literature, or samples. Nor shall Service Provider be liable for dangerous products, design defects in products, or defective warnings. However, Service Provider shall lend assistance in settling any claim resulting from defects in these products.
Notwithstanding the foregoing, this limited warranty does not cover the following items: damage or defects caused by the failure to maintain any item or keep it in good working order; damage resulting from fire, freezing, storms, electrical malfunction or surge, lightning, earthquake, pest damage, acts of God, or other unforeseen causes or accidents; damage from alterations, misuse, or abuse by any person; ordinary wear and tear; or problems caused by lack of maintenance; damage resulting from your failure to observe any operation instructions furnished at the time of installation; any item furnished, installed, modified, altered, or repaired by you or any other person other than Contractor; blockage of sensors (customers with sensor issues will be charged a minimum fifty dollars ($50 USD) fee); problems which arise in an attempt to match existing materials as there are limitations inherent in the matching of existing materials such as stucco, drywall, paint, wood, tile, flooring, concrete, and the like. Exact duplication in matching, texture, and color cannot be guaranteed. Variations within industry tolerances will be considered acceptable. This warranty applies to the Customer and may be transferred to any subsequent Customer within the initial date stated on invoice after substantial completion.
7.2 Occurrence Fee for Warranty Uses.
Please be aware that any warranty uses occurring more than six (6) months after the original service date are subject to an $89 occurrence fee. This fee will reset the six-month period for each occurrence for the duration of the warranty period.
SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN THIS SECTION 7.1, PROVIDED CUSTOMER CONDUCTS REGULAR MAINTENANCE FOLLOWING SERVICE PROVIDER’S COMPLETION OF THE SERVICES. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
8. Term, Termination, and Survival.
This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all applicable invoices unless sooner terminated pursuant to Section 8.1 below.
8.1. Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party“) if the Defaulting Party:
(a) Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach.
(b) Files for bankruptcy or admits its inability to pay its debts generally as they become due.
(c) Becomes subject, voluntarily, or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) days after filing.
(d) Is dissolved or liquidated or takes any corporate action for such purpose.
(e) Makes a general assignment for the benefit of creditors.
(f) Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Notwithstanding anything to the contrary, Service Provider may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder, and such failure continues for seven (7) days after Customer’s receipt of written notice of nonpayment; or more than once in any one (1) week period.
The rights and obligations of the Parties set forth in this Section 8.1 and in Sections 1-7, and any right or obligation of the Parties in this Agreement which, its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
9. Limitation of Liability and Indemnification.
IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE FOR DOOR COMPONENTS THAT SERVICE PROVIDER HAS NOT SERVICED, VEHICLE DAMAGE, NOR STRUCTURAL, ARCHITECTURAL, ELECTRICAL OR ENGINEERING DEFECTS EXISTING PRIOR TO THE SERVICES OR FAILURES THAT OCCUR AT NO FAULT OF SERVICE PROVIDER’S EMPLOYEES OR SUBCONTRACTORS.
IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT AND THE APPLICABLE INVOICE.
10. Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
11. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice“, and with the correlative meaning “Notify“) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 10.
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Notice to Service Provider: |
Attention: Garage Door Nova LLC Address: 7413 Wilhelm Drive, Lanham, Maryland, 20706 Telephone Number: (301)363-9027 Maryland Home Improvement Commission (MHIC) Number: 115194 |
12. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be 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
13. Amendments. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each Party.
14. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15. Assignment. Customer shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section 14 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. Service Provider may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Service Provider’s assets without Customer’s consent.
16. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
17. Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by Service Provider shall be under its own control, Customer being interested only in the results thereof. The Service Provider shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. The Services must meet the Customer’s final approval and shall be subject to the Customer’s general right of inspection throughout the performance of the Services and to secure satisfactory final completion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
19. Choice of Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Maryland, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Maryland.
20. Disputes. Service Provider and Customer shall attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith and the spirit of mutual cooperation. If those attempts fail, then the dispute will be submitted for non-binding mediation conducted by a mutually acceptable mediator. The mediator will be chosen by the Service Provider and Customer within twenty-one (21) days after written notice by either Party demanding mediation. In no event shall either Party unreasonably withhold consent to the selection of a mediator and the Service Provider and Customer will share equally the costs of the mediation. Any dispute that cannot be resolved between the Parties through negotiation or mediation within forty-five (45) days of the date of the initial demand for mediation by one of the Parties may then be submitted to binding arbitration, conducted before an arbitrator in Prince George’s County, Maryland in accordance with the National Rules for the Resolution of Commercial Disputes of the American Arbitration Association then in effect. The use of any mediation procedures will not be construed under the doctrines of laches, waiver, or estoppel to adversely affect the rights of either Party. Judgment may be entered on the arbitration award in any court having jurisdiction and the Company shall be entitled to seek a restraining order or injunction in any court of competent jurisdiction to prevent any continuation of any violation of the provisions of this Agreement. Nothing in this Section 19 will prevent either Party from resorting to judicial proceedings, if: (a) good faith efforts to resolve the dispute have been unsuccessful, (b) the claim or suit involves intellectual property rights, or (c) interim relief from a court is necessary to prevent serious and irreparable injury to that Party or to others. By executing this Agreement, both parties agree to execute a separate acknowledgment of this provision.
Notwithstanding the foregoing, formal mediation may also be available through the MHIC following your filing of a signed, complete complaint form available at: https://www.dllr.state.md.us/forms/mhiccomplaint.doc.
21. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
22. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 12, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
23. Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Customer to make payments to Service Provider hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemics such as the novel coronavirus COVID-19, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency; and (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party.
The Impacted Party shall give notice within two (2) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section 22, the other Party may thereafter terminate this Agreement upon seven (7) days’ written notice.
24. COVID-19 Disclaimer. While Service Provider commits to following Center for Disease Control (CDC) protocol(s) in their provision of all services under this Agreement, and the applicable invoice, Customer assumes the risk of contracting the novel coronavirus COVID-19 by virtue of entering this Agreement and interacting with any of Service Provider’s staff or subcontractors as required to fulfill their obligations of this Agreement.
Last Updated: 10/13/2021
