1. ENTIRE AGREEMENT:
This instrument contains all the terms and conditions with respect to the services provided, and supersedes any and all other instruments or agreements, and no change or modification of these terms and conditions shall be of any force unless such change or modification shall be executed by an authorized officer of HomeTech. The terms and conditions as set forth in this instant instrument shall supersede any provision, terms and conditions contained on any purchase order, confirmation order or other writing that Buyer may give or have received, and the rights of the parties shall be governed exclusively by the provisions, terms and conditions hereof. HomeTech makes no representations or warranties concerning this confirmation except such as are expressly contained herein and this confirmation may not be changed or modified orally.
2. WARRANTIES:
Except as herein set forth, HomeTech makes no warranties or representations, expressed or implied, with respect to the services, and the buyer hereby expressly waives all such warranties, guarantees and representations including any implied warranty or merchantability or fitness for a particular purpose. HomeTech shall, in no event, be liable for any consequential or incidental damages sustained by arising out of this transaction.
3. LIABILITY:
HomeTech shall not be liable for loss or damage of any kind resulting from delay or inability to deliver, or failure to deliver caused directly or indirectly by acts of God or the public enemy, riots, accident, strikes or differences with labor, labor shortage, inability to obtain material or equipment, or transportation or fuel, explosions, epidemics, quarantine, restrictions, unusually severe weather, compliance with or the operation of any applicable governmental legislation, regulation, directive or order of any government or of the United States or of any state or other political subdivision thereof, judgments or order of any court of competent jurisdiction, order or rulings of any board, agency, commission, officer or other competent governmental authority, of any government of the United States or of any state or other political subdivision thereof, or any other thing beyond HomeTech's absolute and unconditional control: HomeTech shall not be required to use overtime labor, nor to expend any monies whatsoever to cure any such delay or failure to deliver. In the event of such delay, the date of delivery of this order shall be extended by a period of time approximately equal to the time lost by reason of the delays. In the event of any partial failure to deliver so caused, HomeTech shall have the right to prorate payment for such of the merchandise as it could and did in fact deliver, whether or not delivery of the same may have been delayed. Customer's right to recover property damages caused by HomeTech's fault or negligence shall be limited to the annual value of this Agreement. This limitation of HomeTech's liability will apply regardless of the form of action against HomeTech must be brought within three (3) months after the cause of action occurs.
4. CHARGES:
Charges for maintenance shall be invoiced thirty (30) days in advance. Payment of the applicable charges is due on the first day of the month in which service is to be rendered. All overdue accounts will be charged a late fee of ten percent (10%) per month. HomeTech also reserves the right to refuse service to customers with past due invoices. Charges for service not covered under this Agreement shall be invoiced at HomeTech's per call rates, terms and conditions in effect when the service is performed. HomeTech may adjust the applicable charges for services covered under this Agreement upon the anniversary date of this Agreement.
5. Service Limitations:
Requests for service received outside of the hours of coverage stipulated on the face of this Agreement shall be responded to on a best efforts basis and Customer shall be charged portal to portal at the current after hours per call labor rates. HomeTech reserves the right to withdraw individual items of coverage or services from the Agreement of, in HomeTech opinion, these items can no longer be supported. In these circumstances, HomeTech shall allow the Customer reasonable time to research alternatives for service. Service does not include operational supplies or accessories. HomeTech has the right to refuse, terminate, or suspend service, when in HomeTech's opinion, conditions at the Customer's site jeopardize the health or safety of HomeTech personnel.
6. General:
If either party neglects or fails to perform any obligations under this Agreement, or any other Agreement between the parties, and such failure continues for a period of twenty (20) days after written notice thereof, the other party shall have the right to terminate this agreement. It is expressly understood that if either party, on any occasion, fails to perform any provision of this Agreement, and the other party does not enforce that provision, the failure to enforce on that occasion shall nor prevent enforcement on any other occasion. This Agreement will be governed by the laws of the state of New Mexico.