Terms and Conditions
“Change Order” means a written amendment to the Quote executed by Customer and AmPro.
“Contract” means, collectively, these Terms of Service (these “Terms”), the Quote (if one is issued by AmPro), any purchase order acknowledgement (if one is issued by AmPro), and Customer’s purchase order (except to the extent that it conflicts with these Terms, the Quote, and/or the order acknowledgement).
“Customer” means the individual or entity to which AmPro is selling Products or Services under a Contract.
“Products” means the equipment, products, parts, materials, supplies, and other goods that AmPro provides under the Contract.
“Quote” means AmPro’s statement identifying the Products and/or Services, together with any quantity, price, delivery schedule, and/or other terms and conditions (in addition to or different from these Terms), offered by AmPro for sale to Customer, together with any Change Order.
“Services” means the repair and other services that AmPro has agreed to provide under the Contract.
2. Scope of Terms
These Terms govern the Products and Services provided to Customer by American Professional Chimney, Masonry and Home Repair Service, Inc. (“AmPro”) and shall be deemed to be incorporated by reference in each and every Quote. Any additional or different terms or conditions or purchase order in any form delivered by Customer to AmPro are hereby rejected. By accepting delivery of the Products or by engaging AmPro to provide Services, Customer agrees to be bound by and accepts these Terms unless Customer and AmPro have signed a separate agreement, in which case the separate agreement will govern and supersede these Terms. These Terms and the Quote constitute a binding contract between Customer and AmPro. All purchase orders and Quotes shall be subject to these Terms, whether or not such purchase orders or Quotes so state. In the event of a conflict between any Customer purchase order or other Customer terms, these Terms shall control. These Terms shall be effective as of the date stated in the earliest accepted Quote or, if no such date is stated in the earliest accepted Quote, the date upon which Customer is deemed to have accepted a Quote (the “Effective Date”). All proposals, negotiations and representations made by AmPro prior to the Effective Date or with reference hereto are hereby superseded by these Terms. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Contract.
Customer agrees to pay AmPro the amounts set forth in the Quote for the Products purchased and Services completed, including taxes. Unless otherwise specified in the Quote, all payments are due upon completion of Services without set-off or discount. Upon acceptance of the Quote, Customer agrees to provide AmPro with credit card or bank account information (the “Customer Payment Information”) that AmPro will keep on file. Upon completion of Services, AmPro is authorized to charge any outstanding balances via the Customer Payment Information. Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. A $35.00 fee will be charged for all returned checks. Customer shall reimburse AmPro for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
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.
5. Zoning and Permits
Customer agrees to timely furnish all information necessary for AmPro to secure plans and permits necessary for the Services. Customer shall ensure that the Services will be in compliance with applicable zoning, classification, building codes, laws, rules, and regulations. Any costs for Services not in the Quote but required by governmental authorities to bring the Services into compliance with applicable law shall be the responsibility of the Customer. AmPro assumes no responsibility for violation of zoning rules/laws.
6. Change Orders
Any change in the details of a Quote or the assumptions upon which the Quote is based (including, but not limited to, changes in an agreed starting date for Services or suspension of the Services by AmPro) may require changes in the budget and/or timelines, and shall require a Change Order. Each Change Order shall detail the requested changes to the applicable Services, budget, timeline or other matter. Both parties agree to act in good faith and promptly when considering a Change Order requested by the other party.
7. Work Schedule
AmPro shall use reasonable efforts to meet any performance dates specified in the Quote, and any such dates shall be estimates only.
Should AmPro be unable to obtain any Products, AmPro may substitute comparable Products, as determined by AmPro in AmPro’s sole discretion, and unless AmPro receives Customer’s prior consent, such substitution shall not increase the price set forth in the Quote.
9. Excess Materials
Extra materials left over upon completion shall be deemed AmPro’s property, and Customer grants AmPro a limited irrevocable license to access the work site where the Services were performed to remove excess material(s) at all reasonable hours.
10. Supervision Responsibility
AmPro shall supervise and direct the performance of the Services at Customer’s location specified in the Quote. AmPro shall be solely responsible for the construction means, methods, technique, sequences, and procedures for all Services performed. Customer shall not interfere with AmPro’s representatives, employees, or subcontractors. If AmPro’s performance of its obligations under the Contract is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, AmPro shall not be deemed in breach of its obligations under the Contract or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
11. Performance or Condition of Existing Equipment
AmPro is not responsible for the performance, functionality, or compatibility of existing equipment, ductwork, gas pipes, duct board, controls, masonry, furnaces, chimney caps, chimney fans, dampers, chase covers, dryer vents, fireplace doors, mantels, firebox, stoves, or other equipment or materials on or about the Customer’s location specified in the Quote that are not repaired, altered, or replaced during performance of the Services. In the event that an existing condition prevents the proper operation of the Products or performance of the Service, the parties shall execute a Change Order whereby the scope of the Services shall be expanded accordingly.
12. Promised Cleaning Results and Hidden Conditions
Customer understands and agrees that any cleaning and restoration Services may not totally clean or remove all contaminants, odors, stains or damages in all areas, even after diligent and reasonable efforts by AmPro and Customer agrees that no such guarantees, warranties or representations as to results or levels of decontamination, cleanliness or restoration are made by AmPro except as stated in writing the Contract. Customer further acknowledges that there may be hidden or unknown conditions that would affect the Services. Customer agrees that AmPro shall not be responsible for any damage caused by latent defects in and around Customer’s location specified in the Quote. Customer acknowledges that Products used in AmPro’s services may not precisely match existing texture, type, material, or color of the existing materials.
13. Paint, Patchwork, and Repairs
Unless set forth in the Quote, the Services do not include any painting, patchwork, or repair work that may be required to restore the appearance of the materials on and about the area where the Services were performed.
14. Personal Property
Prior to AmPro’s arrival, Customer shall notify AmPro of any preexisting or damaged conditions and shall remove all valuables and breakable items from the area where Services may be performed. AmPro is not responsible for damage to Customer’s personal property left in or near the area where the Services are performed.
15. Limited Warranty
(a) AmPro represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
(b) AmPro shall not be liable for a breach of the warranty set forth in Section 15(a) unless Customer gives written notice of the defective Services (whether or not the alleged defect is latent or patent), reasonably described, to AmPro within twelve (12) months of the date that AmPro commenced performing the Services.
(c) Subject to Section 15(b), AmPro shall, in its sole discretion, either:
(i) repair or re-perform such Services (or the defective part); or
(ii) credit or refund the price of such Services pro rata at the rate set forth in the Quote.
(d) THE REMEDIES SET FORTH IN SECTION 11(c) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND AMPRO’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 15(a).
(e) Customer acknowledges and agrees that AmPro resells many third party Products, is not the applicable third party manufacturer of the third party Products (“Manufacturer”), and does not make any warranty relating to third party Products. AmPro will assign to Customer (to the extent assignable) the warranty of the Manufacturer of the Products (if any); provided however, AmPro does not represent or warrant or guarantee that any such Manufacturer’s warranty is transferable to Customer or that the Manufacturer will comply with any of the terms of the warranty of such Manufacturer with respect to the Products. Upon written request, AmPro will provide Customer relevant warranty information.
16. No Other Warranties
EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 15(A) ABOVE, AMPRO MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES OR PRODUCTS, AND DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
17. Limitation of Liability
(a) IN NO EVENT SHALL AMPRO BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, 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 DAMAGES WERE FORESEEABLE AND WHETHER OR NOT AMPRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL AMPRO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO AMPRO UNDER THE CONTRACT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Customer shall indemnify, defend, and hold harmless AmPro and its respective managers, members, officers, employees, agents, sureties, subcontractors, and suppliers 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 attorney’s fees, involving the following: (a) injury or death to any person, or damage to or destruction of any property (including loss of use thereof), except to the extent caused by the sole negligence or intentional misconduct of AmPro; and (b) any failure of the Customer to comply with the requirements of the Contract.
19. Risk of Loss
Risk of loss shall pass to the Customer upon delivery of the Products to Customer’s location specified in the Quote. AmPro shall not be responsible for any loss or damage to the Products once delivered.
20. Performance; Costs
If Customer fails to perform any of Customer’s obligations herein or if AmPro, in good faith, believes that the prospect of payment or performance to be impaired, AmPro may upon seven (7) days written notice to Customer terminate the Contract while retaining all mechanic’s lien rights as well as right to payment for the full price of any and all Products supplied and/or Services performed plus reasonable overhead and profit, interest, and other charges due and unpaid.
21. Governing Law
This Agreement will be construed, enforced and governed by the laws of the State of Maryland without regard to its conflicts of law provisions.
22. Dispute Resolution
Customer agrees to notify AmPro of all complaints in writing within seven (7) days of substantial completion of Services, and allow AmPro to inspect the Products and Services at Customer’s location specified in the Quote. Customer’s failure to notify AmPro of a complaint within such period will be deemed to be a waiver of such complaint by Customer. The parties agree that any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association (“AAA”) under its Construction Industry Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court in Maryland having jurisdiction thereof. The filing fee will be advanced by Customer in accordance with AAA’s Construction Industry Administrative Fee Schedule and is subject to final judgment by the arbitrator in the award. Any claim against the Maryland Home Improvement Guaranty Fund by an owner will be stayed until completion of any mandatory arbitration proceeding. Notwithstanding the foregoing, AmPro shall have the option to institute and litigate any claims for non-payment by the Customer in a court of competent jurisdiction and the foregoing arbitration requirement will not apply.
Should any part of the Contract be adjudged to be void, unenforceable, or contrary to public policy, only such void or unenforceable portion shall be stricken and eliminated hereof while the other portions remain valid and enforceable.
24. Assignment and Subcontracting
Customer shall not assign the Contract, or any right or obligation under the Contract, without the express written approval of AmPro. AmPro may assign, delegate, or subcontract the Contract or performance of all or any portion of the Services to third party contractors without Customer’s consent, as determined by AmPro in AmPro’s sole discretion.
25. Entire Agreement
The Contract constitutes the complete and exclusive state of the agreement between the parties with respect to the subject matter hereof and shall supersede all proposals, prior agreements and representations, oral or written, and all communications been the parties relation to the subject matter hereof.
26. No Other Promises
No representative of AmPro has authority to make representations, guarantees, warranties, agreements or other promises other than as are expressly set forth in the Contract, and the Contract shall not be varied by any agreement or representation other than on instrument in writing executed by the dully authorized officer of AmPro and Customer.
27. Force Majeure
AmPro shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached the Contract, for any failure or delay in fulfilling or performing any term of the Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of AmPro including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
28. Modification of Terms
AmPro may modify these Terms from time to time as determined by AmPro in AmPro’s sole discretion, without Customer’s consent or approval. AmPro agrees that modifications to these Terms cannot be retroactive; provided however, upon completion of the current Services, Customer agrees to be bound by the then-current version Terms with respect to any subsequent Services performed by AmPro.
29. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in the Contract 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.
30. No Third-Party Beneficiaries
The Contract is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.