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1. LIMITATIONS OF LIABILITY
American Pest liability under this agreement is limited to treatment.
2. PERFORMANCE OF WORK
American Pest agrees to perform in a workman-like manner. American Pest will exercise care while performing any work hereunder to try to avoid damaging any part of the structure(s), plants or animals. Under no circumstances or conditions shall American Pest be responsible for damage caused by American Pest at the time the work is performed except those damages resulting from gross negligence on the part of American Pest.
3. CHANGE IN LAW
This Agreement shall be interpreted, regulated and adjudicated in accordance with applicable federal, state and local laws and regulations as they exist at the time this Agreement is executed. Should any federal, state and local law regulation change regarding American Pest services or the Preferred Care service, American Pest, is authorized to take whatever steps are necessary to be in compliance with said laws.
4. PAYMENT TERMS
The Customer agrees to pay American Pest’s invoices upon receipt. American Pest reserves the right to terminate this Agreement if payment is not received within thirty (30) days of the date invoiced. In the event legal action is necessary to collect any amount due American Pest shall be entitled to recover from Customer all reasonable cost of collection, including reasonable attorney’s fees and expenses, in addition to any outstanding amount due American Pest.
5. ENTIRE AGREEMENT & NOTICE OF CLAIMS
Attachment(s), if any together with this Agreement signed by American Pest and Customer at the time the Agreement is entered into, constitutes the entire Agreement between the parties and no other representation or statements, whether oral or written, will be binding upon the parties. Any claim under the terms of the Agreement must be made immediately in writing to American Pest.
6. SEVERABILITY & TRANSFERABILITY
If any part of this Agreement is held to be invalid or unenforceable for any reason, the remaining terms and conditions of this Agreement shall remain in full force and effect.
This Agreement shall terminate upon transfer of ownership of the described structure(s). A new Agreement may be issued by American Pest, to a new Purchaser provided the new Purchaser signs an Agreement as purchaser, and signs a diagram showing the condition of structure(s) at transfer, a fee is paid to cover administrative cost of transfer, the expiration date remains the same as under the original Agreement, and payment of a renewal fee as established by American Pest.
7. RENEWAL OF THE AGREEMENT
If either parties wish not to renew the agreement, the other party must be notified of this in writing at least thirty (30) days before the end of the agreement period. If such notice has not been given, the Agreement will be renewed according to the renewal terms set forth in the agreement. American Pest reserves the right to increase the service price annually, without prior notification, up to 12% per year. For any increase above 12%, the Customer will be notified by mail.
8. BINDING ARBITRATION
In the event of a dispute between American Pest and/or its employees and Customer arising out of or relating to this Agreement, including but not limited to the interpretation of the terms and conditions of this Agreement, the making of the Agreement, or breach of any provision of this Agreement, the parties hereby expressly agree to submit their dispute to binding arbitration for resolution in accordance with the rules and requirements of the American Arbitration Association. The parties acknowledge and understand that by agreeing to submit their dispute to binding arbitration they are effectively waiving their right to trial by jury as a means of resolving disputes. Furthermore, the parties acknowledge that they desire to arbitrate any dispute arising from this agreement in an effort to resolve such dispute(s) quickly and avoid the costs of litigation. Judgment upon such arbitration award may be entered in any court having jurisdiction. Each party shall be responsible for paying any attorney’s fees, expert witness’ fees and other expenses it incurs on its behalf in connection with the arbitration, plus one half the arbitrator’s fee and one half of any expenses incurred by the arbitrator, and the award shall assess the arbitrator’s fee and expenses accordingly.
9. CONDITIONS CONDUCIVE TO INFESTATION
The Customer warrants full cooperation with American Pest during the terms of this Agreement and agrees to maintain the area (s) treated from any factors contributing to infestation, such as wood, trash, lumber, crawl space, direct wood-soil contact, cellulose debris, or standing water under pier type structure. Customer also agrees to notify American Pest of and to eliminate faulty plumbing, leaks, and dampness from drains, condensation or leaks from the roof or otherwise into, onto, or under said area(s) treated. American Pest reserves the right to terminate this Agreement if Customer fails to correct any condition, including, but not limited to the conditions listed above, which contribute or may contribute to infestation. American Pest is not responsible for any damage caused to the structure(s) treated as a result of any said conditions. American Pest shall be released from any further obligation under the Agreement upon notice of termination to Customer. The Customer must report any signs and/or evidence of termites or damage within fourteen (14) days of discovery of said infestation and/or damage. Failure of American Pest to note herein any of the above conditions to Customer does not alter Customer’s responsibility under this paragraph or waive American Pest’s right to terminate this Agreement.
10. DOW AGROSCIENCES OWNERSHIP OF SENTRICON SYSTEM COMPONENTS.
The Customer also understands that:
10.1 All of the components of the Sentricon™ System (“Components”) are and will remain the property of Dow. The Customer has no rights to any of the Components, other than the right to their use as installed by American Pest on the Customer’s premises under this Agreement.
10.2 On expiration or termination of this Agreement, American Pest and Dow AgroSciences or its representative are authorized by the Customer to retrieve from the Customer’s premises the Stations and other Components contained therein for appropriate disposition. American Pest and Dow AgroSciences reserves the right to pursue to the fullest its legal rights relating to the use and adverse possession of the Sentricon™ System.
11. ADDITIONS OR ALTERATIONS
This Agreement covers the structure(s) identified herein as of the date of the initial treatment. Prior to the structure(s) being structurally modified, altered or otherwise changed, or if soil is removed or added around the foundation, the Customer will immediately notify American Pest in writing. Such additions may result in the need for additional treatment of the premises. American Pest reserves the right to terminate this Agreement if Customer fails to notify American Pest of any modification, alteration or change to any structure(s) or soil around the foundation of any structure(s). Additional services because of any addition or alteration shall be provided by American Pest at the Customer’s expense and may require an adjustment in the annual renewal fee at the option of American Pest.
12. A. American Pest’s liability under this Agreement will be terminated if American Pest is prevented from fulfilling its responsibilities under the terms of this Contract by circumstances or causes beyond the control of American Pest.
12. B. This Agreement specifically excludes protection from Formosan (Coptotermes), Drywood (Kalotermitidae), and Dampwood termites (Hodotermitadae). This Agreement only provides treatment for Subterranean Termites (Reticulitermes) and other pests listed on front of Agreement.
12. C. American Pest disclaims any liability for special, incidental or consequential damage. THERE ARE NO GUARANTEES OR WARRANTIES, EXPRESSED OR IMPLIED, EXCEPT THOSE SPECIFICALLY STATED HEREIN. THERE ARE NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13. SPECIFIC EXCLUSIONS
The Agreement does not cover, and American Pest will not be responsible for:
13.1. Damage resulting from moisture conditions, including but not limited to fungus, whether visible or not.
13.2. Damage resulting from wood in direct contact with the soil, whether visible or not.
13.3. Damage resulting from Stucco, synthetic stucco, EIFS and/or rigid foam board and/or expanded foam materials in contact with the soil and/or covering interior or exterior foundation walls in such a way as to provide termites with hidden or protected access to the structure, whether visible or not.
13.4. Damage resulting from masonry failure or grade alteration(s).
13.5. Damage and/or treatment caused by infested wood and/or furniture introduced into the structure after initial Installation.
13.6. Personal expenses such as lodging, meals, transportation, etc. incurred as a result of treatment, retreatment and/or damage repair.
These specific exclusions are in addition to the other exclusions contained in this Agreement.