Exterior service will be performed without prior notice. F&W will attempt to notify the Customer by phone, e-mail and/or by mail when interior service is scheduled. Should F&W arrive at the residence for any service visit and find the premises in any part inaccessible, F&W will perform the available portion of the exterior treatment. The interior service may be rescheduled by the Customer for a later date. If F&W is unable to confirm the scheduled service with the Customer, F&W will notify the Customer, by mail, when the service will be done. The Customer may reschedule with advance notice if this time is not convenient.
TERM, RENEWAL, AND ASSIGNMENT OF AGREEMENT
The term of this Agreement is one (1) year. The Annual Service portion of this Agreement shall renew automatically on each anniversary date for an additional year unless Customer has given F&W thirty (30) days prior written notice of cancellation. F&W may adjust the Annual Service fee on an annual basis, in which case the Customer may cancel this Agreement within thirty (30) days after notice of the adjusted amount by written notice to F&W. PAYMENT OF THE ANNUAL SERVICE FEES IS DUE ON THE ANNIVERSARY DATE. The term of the PestGuard™and PestGuard PLUS™ Service Agreements shall be as stated. This Agreement may be canceled by F&W at any time, and by Customer upon sale of the real estate, in which event, F&W shall be liable only to refund that portion of the Annual and Additional Services fees paid by Customer with respect to which services have not then been rendered after receipt of written notice of sale. This Agreement may be assigned by Customer to a new Customer upon payment of a transfer fee of $75.00 and is otherwise non-transferable.
LIMITATIONS OF LIABILITY AND DISCLAIMER
A. F&W Pest Control shall not be liable for any loss or damage or for any failure to perform if F&W Pest Control is prevented from fulfilling its responsibilities under the terms of this agreement by reason of delays in transportation, shortages of fuel and/or materials, strikes, embargoes, fires, governmental restrictions or actions, quarantine, inability to gain access to any portion of the premises, act of Owner, customer, God or any other circumstances or cause beyond the control of F&W Pest Control. To the fullest extent permitted by law: F&W Pest Control shall not be liable for any physical damage to the treated premises, exemplary, special, incidental or consequential damages; THE AGREEMENT OF TREATMENT STATED IN THIS AGREEMENT IS GIVEN IN LIEU OF ANY OTHER GUARANTEE OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; and F&W Pest Control’s liability under this agreement is limited to the cost of re-treatment of the covered infestation during the term of the agreement. The service commitments are based upon a visual inspection which does not detect the presence of subterranean termites in all instances. In the event that termite monitoring stations are disturbed, or the premises are altered or structural problems develop, which in the opinion of F&W constitute conditions suitable for re-infestation of subterranean termites, such alterations and conditions must be corrected in order that the service commitments remain in effect.
EXISTING & FUTURE DAMAGE
F&W Pest Control is not responsible for and has no duty to repair either visible damage (whether or not noted on the attached Inspection Graph included with the PestGuard Service) or hidden damage existing as of the date of this agreement. Because damage may be present in areas which are inaccessible to visual inspection, F&W Pest Control does not guarantee that the damage disclosed on the Inspection Graph represents all of the existing damage as of the date of this agreement. Because no treatment program is failsafe, F&W Pest Control does not guaranty that no damage will occur in the future. F&W Pest Control shall not be liable for damage to Customer’s property during inspection or the application of treatments unless caused by its’ gross negligence.
CHANGE IN LAW
F&W Pest Control performs its services in accordance with the requirements of Federal, State and local authorities. In the event of a change in existing requirements as it pertains to the services promised herein, F&W Pest Control reserves the right to revise the service charge or terminate this agreement.
In case of non-payment or default by the customer, F&W Pest Control has the right to terminate this agreement effective immediately. Customer agrees to pay interest at the lesser of 1.5% per month (19.6% per annum) or the highest legal rate permitted by law on all overdue amounts. In the event a claim is placed with an attorney or any proceeding is initiated to enforce the provisions of this agreement, F&W Pest Control shall be entitled to payment for reasonable attorneys’ and experts fees and costs, as set by the court at the trial and/or appellate levels.
The Customer agrees to fully cooperate with F&W Pest Control during the term of this agreement to make the premises available for inspection and treatment at scheduled times and to maintain area(s) monitored free from any factors contributing to infestation, such as wood, trash, lumber, direct wood-soil contact and standing water in or under the structure. The Customer shall notify the Company of and promptly eliminate faulty plumbing, leaks, dampness from drains, condensation or leaks from the roof or otherwise into, onto or under the area(s) monitored. Failure of the Company to alert the Customer to any of the above conditions does not alter the Customer’s responsibilities under this Agreement. Customer acknowledges that all equipment and components placed upon Customer’s premises remain the property of F&W Pest Control and shall not be disturbed or removed. F&W Pest Control is hereby authorized to enter upon and remove the equipment and components from the premises upon termination of this Agreement.
The Customer and F&W Pest Control agree that all matters in dispute between them, whenever arising, including but not limited to (i) any controversy or claim of any name or nature between them arising out of or relating to this Agreement, (ii) existence of any pest or wood destroying insect or any report with respect to the described property or (iii) any loss or damage relating to the described property in any way, shall be determined exclusively by arbitration. Such arbitration shall be conducted by the American Arbitration Association and in accordance with its Commercial Arbitration Rules then in force. The arbitrator(s) shall be bound by rules of the substantive law of the Commonwealth of Massachusetts, but shall not be bound by rules of evidence, whether or not set out by statute, except for provisions relating to privileged communications. The arbitrator shall give effect to any and all waivers, releases, disclaimers, limitations and other terms and conditions of this Agreement. Therefore, the award shall not include and the arbitrator shall not have the power or authority to hold F&W Pest Control responsible for (i) the repair or replacement of any insect damage to the described property (ii) loss of anticipated rents and/or profits or loss of quiet enjoyment or (iii) direct, indirect, special, incidental, consequential, exemplary or punitive damages (under G.L. c. 93A or otherwise). Each party shall be responsible for paying any expenses it incurs on its behalf in connection with the arbitration, plus half the arbitrator’s fee and half any expenses incurred by the arbitrator(s). The award shall assess the arbitrator’s fees and expenses accordingly. Any award of damages pursuant to such arbitration shall be included in a written decision, which shall provide a detailed statement of the basis of the award, including all the elements involved in the calculation of any award of damages. The decision of the arbitrator shall be a final and binding resolution between the parties and may be entered as a judgment by any Court of competent jurisdiction. Each party consents to the personal jurisdiction of the courts of the Commonwealth of Massachusetts and agrees that venue shall be proper in the county in which the described property is located. Each party hereby waives and agrees not to exercise any right to bring an action against the other party with respect to any matter governed by this agreement other than to enforce this arbitration provision and the arbitrator’s decision. Any party violating this provision shall pay the other party’s costs, including but not limited to attorneys fees, with respect to such suit and the arbitration award shall so provide.
In the event that any part of this Agreement is determined to be invalid or unenforceable, the remainder of the Agreement shall nevertheless remaining binding upon the parties.
The agreement constitutes the entire agreement between the parties and no other representations or statements will be binding upon the parties, except as set forth herein in writing. General Provisions.