This Home Maintenance Services Agreement (“Agreement”) sets forth the terms and conditions under which HomePoint Maint, Inc. (“HomePoint”) will provide home maintenance / handyman services to you (hereinafter “Homeowner,” “you” or “your”) at your home (the “Property”). You cannot receive, and HomePoint will not provide, the Services unless and until the you have carefully read and agreed to this Agreement by clicking “I Accept”. If you disagree with the terms and conditions of this Agreement, you cannot receive the Services. By clicking “I Accept” you (i) certify that you are the homeowner and /or are authorized to hire professional service companies for maintenance for the Property; (ii) accept this Agreement; (iii) agree to be bound by these terms and conditions; and (iv) have entered into a binding agreement between you and HomePoint. HomePoint and Homeowner each hereinafter sometime referred to individually as a “Party” and collectively as the “Parties”.
HomePoint and Homeowner agree as follows:
This Agreement shall commence upon the Effective Date and shall continue for a period of twelve (12) months thereafter (the “Initial Term”), unless earlier terminated in accordance with the terms hereof. This Agreement will automatically renew for additional twelve (12) month terms (each a “Renewal Term”) unless one Party provides the other Party with written notice of its intent not to renew this Agreement at least thirty (30) days prior the renewal date hereof. The Initial Term and any Renewal Terms will collectively be referred to as the “Term”.
Upon payment of the Annual Fee (as defined below), HomePoint shall provide Homeowner with the following handyman / maintenance services: (a) one (1) visit annually to conduct a Check Up Inspection; (b) four (4) visits, each visit up to one and a half (1.5) hours, annually to provide Maintenance Services; (c) up to two (2) hours of Handyman Services (labor only); (d) access to HomePoint’s data and records related to the Property; and, (e) the ability to use HomePoint as a point of contact to coordinate other services to the Property, which HomePoint does not provide (“Services”). Examples of what constitutes “Maintenance Services” and “Handyman Services” can be found at HomePoint’s website – https://gohomepoint.com/.
The annual fee for the Service, per property, is dependent on the square footage of the property.
Up to 3,000 square feet is $1,000.00 if paid in one lump sum or $1,200.00 if paid in quarterly installments of $300.00/quarter (“Annual Fee”).
3,001 to 5,000 square feet is $1,500.00 if paid in one lump sum or $1,600.00 if paid in quarterly installments of $400.00/quarter (“Annual Fee”).
Greater than 5,000 square feet is $2,000.00 if paid in one lump sum or $2,340.00 if paid in quarterly installments of $585.00/quarter (“Annual Fee”).
The Annual Fee includes sales tax. The Annual Fee is for labor only and does not include the cost of any necessary parts or materials to complete repairs or maintenance all of which will be charged separately. Estimated costs for parts and materials will be set forth in a work order and agreed to in advance by the Parties.
If any additional, incremental work or Handyman Services are identified by the Parties or requested by you during the Term of this Agreement that are beyond the scope and pricing included within this Agreement, then such work will be billed on a time and materials basis at the hourly rate of $75.00/hour for labor plus the cost of any necessary parts or materials. Estimated fees for any such incremental Handyman Services will be set forth in a work order and agreed to in advance by the Parties.
If Homeowner choses to use HomePoint as a point of contact to coordinate other services to the Property, which HomePoint does not provide (“Services”), HomePoint charge up to 10% as a project management fee in addition to the service providers invoice for the services provided.
- INVOICING AND PAYMENT
The Annual Fee will be invoiced to you when you sign up. If you choose to pay annually, the Annual Fee will be invoiced to you for the Initial Term at the time you sign up for the Services. Thereafter, you agree that the Annual Fee for any Renewal Term will be invoiced to you on the anniversary date of this Agreement, until such time as this Agreement is terminated.
If you have chosen a quarterly installment plan, the first quarter’s installment will be invoiced to you at the time you sign up for the Services. Thereafter, you will be sent invoices on a quarterly basis until such time as this Agreement is terminated.
Fees for any agreed to incremental Handyman Services will be invoiced to you prior to any such services beginning.
Payment of all invoices is due upon your receipt of the invoice.
HomePoint will not begin work until payment has been made as set forth above.
HomePoint is not liable for failure to provide timely maintenance service due to conditions beyond its control, including but not limited to, delays in obtaining parts, equipment, or labor difficulties. HomePoint shall not be held liable for any failure to perform the Services, to the extent that the failure is caused by Homeowner’s lack of cooperation. This Agreement does not constitute a warranty or representation with regard to the Property or the inspection of the Property but is a preventive maintenance contract designed to provide early treatment of conditions that might lead to further damage to the Property. This Agreement is not intended to identify or prevent all conditions from occurring, which may require maintenance, repair or replacement. HomePoint shall not be liable for issues which were not identified by HomePoint in its visual inspection of the Property. HomePoint cannot and does not guarantee against future damages or failures after the home inspection. Homepoint is not liable for any damages caused by misuse or abuse, fire, freezing, electrical, power surges, and/or water failure, water damage, lightning, mud, earthquake, soil movements, storms, accidents, pest damage, ordinary wear and tear or acts of God. HomePoint shall not be liable for any damages to the Property arising from the acts or omission of third parties, including, without limitation, Homeowner and other residents of the Property, their agents, contractors and invitees, and/or other contractors/technicians during site visits and performed work. HOMEOWNER AGREES TO HOLD HOMEPOINT HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES, COSTS, EXPENSES, CLAIMS AND LIABILITIES ARISING FROM ANY OF THE FOREGOING EXCLUSIONS.
- HOMEOWNER’S RESPONSIBILITIES
- Homeowner will be the primary contact, point of authorization and responsible for facilitating all communications with HomePoint, approving HomePoint work items, and scheduling meetings. The timeliness of communications and review will directly affect HomePoint’s ability to meet agreed upon schedule deadlines. Homeowner represents and warrants that each owner of the Property has executed this Agreement.
- Homeowner is responsible for the condition of the Property the existing materials contained therein. The determination of the presence of any hazardous material (as defined by the EPA) or pollutants (as defined by HomePoint’s general liability insurance policy, e.g. without limitation, asbestos, molds, acids, etc., excluding lead in pre 1978 houses) is solely the responsibility of the Homeowner. HomePoint has not made and is not required to make any determination of whether the premises contains or is free of hazardous material or pollutants. The Homeowner warrants and represents that there are no hazardous materials or pollutants present in the area to be disturbed by the Services contemplated under this Agreement.
Should hazardous material or pollutants, excluding lead in pre-1978 houses, be discovered at any time, it will be the Homeowner’s responsibility to:
- provide any and all testing;
- have material properly removed and disposed of;
- pay HomePoint for any and all work completed up to the time of discovery; and
- indemnify and hold harmless HomePoint and any subcontractors or vendors of HomePoint for any injuries or damages incurred as a result of any such hazardous material or pollutants, including, without limitation, any liability relating to clean up expense, personal injury, or property loss.
- ADDITIONAL TERMS
- Subcontractors. HomePoint shall have the right to use third parties in performance of its obligations and the Services hereunder.
- HomePoint warrants that it has the right to enter into this Agreement and that all Services performed under this Agreement shall be performed in a workmanlike manner. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND HOMEPOINT MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
- LIABILITY CAP & DISCLAIMER OF DAMAGES. HOMEPOINT’S (AND ITS AFFILIATES, CONTRACTORS, SUBCONTRACTORS AND AGENTS) LIABILITY ARISING OUT OR RELATED TO THE AGREEMENT WILL NOT EXCEED, IN THE AGGREGATE, THE FEES ACTUALLY PAID TO HOMEPOINT FOR THE SERVICE THAT IS THE SUBJECT OF THE CLAIM IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM.
IN NO EVENT WILL HOMEPOINT (OR ITS AFFILIATES, CONTRACTORS, SUBCONTRACTORS OR AGENTS) BE LIABLE TO HOMEOWNER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OR ANY LOSS OF REVENUE, GOODWILL, OR PROFITS, ARISING OUT OR RELATED TO AGREEMENT.
THE LIABILITIES LIMITED BY THIS SECTION 7.C. ABOVE, APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE; (C) EVEN IF HOMEPOINT IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; (D) ATTORNEYS FEES AND COSTS, AND (E) EVEN IF HOMEOWNER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THIS SECTION 7.C., HOMEPOINT’S (AND ITS AFFILIATES, CONTRACTORS, SUBCONTRACTORS AND AGENTS) LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
- Dispute Resolution. Any dispute, controversy or claim arising under, out of or relating to this Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to arbitration before the American Arbitration Association (“AAA”) in accordance with the AAA Commercial Arbitration Rules. The place of arbitration shall be Austin, Texas. The language to be used in the arbitral proceedings shall be English. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief as necessary, without breach of this Section and without abridgment of the powers of the arbitrator. The arbitrator may award any form of individual or equitable relief, including injunctive relief. Any award will be final and conclusive to the parties and may be entered in any court of competent jurisdiction. You agree to the entry of injunctive relief to stop any lawsuit or to remove you as a participant in such a suit. This Agreement does not constitute a waiver of any of your rights and remedies to pursue a claim individually in binding arbitration, but not as a class action. This provision preventing you from bringing, joining or participating in class action lawsuits is an independent covenant. You may opt-out of this Section by providing written notice of your decision within thirty (30) days of the date that you first use the Site. Reasonable attorneys’ fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this Agreement.
Notwithstanding anything contained hereunder, Homeowner agrees and acknowledges that no dispute resolution or litigation shall be pursued by Homeowner for any breach of this Agreement until and unless HomePoint has had an opportunity to cure any alleged breach. Homeowner agrees to provide HomePoint with a detailed description of any alleged failure and a description of the steps that Homeowner understands must be taken by HomePoint to resolve the failure. HomePoint shall have thirty (30) days from HomePoint’s receipt of Homeowner’s notice to complete the cure.
- Choice of Law. This Agreement shall be governed and interpreted by the laws of the State of Texas without regard to the conflicts of law provisions of any state or jurisdiction. The state or federal courts sitting in Travis County, Texas shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement, and you hereby consent to the jurisdiction of such courts.
- Entire Agreement. The provisions of this Agreement constitute the entire agreement between the Parties with respect to the subject matter herein and supersede all prior agreements, oral or written, and all other communications relating to the subject matter of the Agreement. The Agreement may only be modified or supplemented by a writing manually signed by the authorized representatives of the Parties.
- Each provision of this Agreement is a separately enforceable provision. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Agreement will remain in full force and effect and will be interpreted, to the extent possible, to achieve its purposes without the invalid, illegal or unenforceable provision. Any waiver made by either Party of any term or condition of this Agreement shall not be deemed or construed to be a waiver of such term or condition for the future, or any subsequent breach thereof. Each Party is and will remain an independent contractor with respect to all performance rendered pursuant to the Agreement. The headings of this Agreement are provided for reference only and will not be used as a guide to interpretation. This Agreement may not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the Agreement by its express terms. All notices under the Agreement will be in writing and will be considered given as of twenty-four (24) hours after sending by electronic means (such as fax or e-mail as duly provided by the authorized representatives of either Party for the said purpose) or by overnight air courier service, or as of forty-eight (48) hours after deposit in the U.S. Mail (certified, return receipt requested) to the addresses mentioned hereinabove. HomePoint shall not be liable to you for any delay or failure of HomePoint to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of HomePoint. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, labor strike, or delays by you in performing any requirements hereunder. Neither party shall assign or transfer this Agreement without the prior written consent of the other. The terms of Sections 4, 5, 6, and 7 shall survive the term of this Agreement.