Preventive Maintenance Program Terms and Conditions (“Contract”)

1. Parties. “Constellation” means Constellation Home Products & Services, LLC and “Customer” means the commercial customer named in the Contract Documents (as defined below). 
2. Coverage. This Contract applies to the: Preventive Maintenance for Commercial Heating and Cooling Systems which includes: (a) an agreed-upon number of annual inspection(s) of Customer’s equipment (the “Equipment”) as outlined in the enrollment plan summary Customer will receive; and (b) 10% discount on parts and a discount on the labor rate for heating and air conditioning repairs as specified in this Contract. For the avoidance of doubt, this Contract is only for inspections and preventive maintenance work and is not a repair or service contract. Any repairs identified as result of an Inspection or otherwise necessary for the Equipment will be charged at a separate, discounted rate. 
3. Inspections. Constellation will perform preventive maintenance checks (an “Inspection”) in accordance with the plan Customer elects, to maintain the covered Equipment as outlined in the enrollment plan summary. CUSTOMER MUST SCHEDULE THE INSPECTION BY CALLING 877-427-2003. Customer may elect one of the following options: 

(A) Two (2) Inspections per Contract term as follows: one (1) Annual and (1) one Operational; OR

(B) Four (4) Inspections per Contract term as follows: two (2) Annual and two (2) Operational. 

Operational Inspections focus on the immediate functionality and safety of the Equipment. Annual Inspections are more comprehensive than the Operational Inspections and focus on long-term efficiency and preventative maintenance. During the peak season (June through September) Customer may experience a delay in the timing of their Inspection. A delay in Customer’ s ability to schedule Inspections during the peak season shall not by itself qualify as a breach of this Contract.

Constellation may terminate this Contract if the Equipment identified at enrollment does not match the Equipment at the service address, including but not limited to the quantity, type, size or location of Equipment. Constellation shall provide Inspections in accordance with this Contract, the enrollment summary, the brochure and all attachments and exhibits, (the “Contract Documents”) which together constitute the entire agreement between the parties and supersede and replace any and all prior communications, agreements, arrangements, or understandings, whether oral or in writing, between the parties. This Contract shall become valid after acceptance by Customer and approval by Constellation. Constellation expressly rejects any additional or inconsistent terms and conditions contained in any proposals, purchase orders, or other documents supplied by Customer.

4. Service Calls. To schedule repairs that result from an Inspection under this Contract or otherwise, call 877-427-2003. In the event Constellation determines, in its sole but commercially reasonable discretion, that there is an emergency situation requiring expedited service, we will make reasonable efforts to expedite service. The ability of Constellation to provide emergency service within 24 hours is contingent upon weather conditions, customer call volume, road conditions and no events beyond our control occuring, some examples include flood, fire, strike, acts of God, etc. Customer shall provide Constellation with safe access to and safe working conditions at and around the covered Equipment and/or system. Constellation reserves the right to charge a minimum fee equivalent to 3 hours of our hourly service rate for each non-emergency service call performed outside of our regular working hours. If an additional service technician must be called for assistance on a service call, Customer may be charged for the additional labor. For non-emergency service calls, Constellation will initiate performance of services no later than 48 hours after Customer’s request. All non-emergency service calls will be performed during Constellation’s regular working hours (8:00 am to 6:00 pm Central Standard Time Monday through Friday).
5. Term and Renewals. Twelve (12) month coverage begins on the Start Date (“Initial Term”) stated on Customer’s enrollment plan summary provided at the time of enrollment. Customer will be invoiced for the Initial Term in accordance with the enrollment plan summary. The Contract may be renewed after the Initial Term for a twelve (12) month renewal term (“Renewal Term) as described below: 

Automatic Renewals. If Customer elects to automatically renew the Contract, the Contract will automatically renew at the end of the Initial Term and each Renewal Term until either Party terminates the Contract.

Manual Renewals. If Customer has opted out of automatic renewals, the Contract shall expire at the end of the Initial Term and/or at the end of any Renewal Term. Constellation may send a renewal notice 30 days prior to the expiration of the Contract. If Customer does not affirmatively consent to the new terms and price before the end of the Contract term, the Contract will terminate.

6. Cancellation.Customer may cancel this Contract at any time with written notification to Constellation, Attn: Commercial Cancellations, 1409A Tangier Drive, Baltimore, MD 21220, or by contacting Customer Care during normal business hours. If Customer cancels this Contract within thirty (30) days of the date issued and an Inspection has not been rendered, Constellation will refund all amounts paid. If Customer cancels after the first 30 days, or if Inspection(s) have been rendered, then refunds will be prorated based on the number of Inspections remaining under the term of the Contract. Constellation may cancel this Contract prior to the end of the Initial Term or a Renewal Term for fraud, material misrepresentation, or Customer’s non-payment; or if required to do so by any regulatory authority. Constellation reserves the right to cancel coverage, change terms and conditions and/or pricing with 30 days written notice to Customer in accordance with applicable law. Constellation is not obligated to renew this Contract at any time.
7. Coverage Limitations. Except for the discount on parts and labor, this Contract does notcover service calls, or parts for repairs or services. This Contract does not include any labor to install equipment, to perform adjustments or repairs of covered Equipment, or any other system. Customer agrees to pay for repairs which shall be separately documented and invoiced at the discounted labor and part rates in accordance with the Contract. Constellation shall not be liable for any consequential or other damages resulting from the failure of any component, system, or item due to conditions beyond Constellation’s control. Constellation shall have no responsibility or liability under this Contract if the Equipment is moved from the location indicated on this Contract, or if any representation made by Customer relating to the covered Equipment is false, or if Customer fails to perform its obligations or is otherwise in default hereunder. 
8. Hazardous Substances. This Contract shall not include any mold or mildew evaluation, remediation, mold prevention or other related services. Constellation shall not be required to identify, detect, encapsulate, or remove asbestos or products or materials containing asbestos, or any other potentially hazardous substances or materials, including but not limited to mold and mildew (collectively, a “Hazard”). Customer has sole responsibility and liability for the proper identification, removal, disposal or correction of any Hazard at the job location. Customer also has the sole responsibility to remediate any mold-related problems regardless of when and how such problems may accrue. Customer shall indemnify, defend and hold harmless Constellation and its affiliates, contractors and subcontractors to the fullest extent permitted by law with respect to any claims, liability, cost or expense (including but not limited to attorneys’ fees) of whatever nature incurred as a result of any Hazard on or relating to Customer’s premises.
9. Limitation of Liability. IN NO EVENT SHALL CONSTELLATION, OR ITS OFFICERS, AGENTS OR AFFILIATES, BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, INDIRECT, EXEMPLARY; OR INCIDENTAL DAMAGES, WHETHER IN CONTRACT OR IN TORT, OR NEGLIGENCE FOR INJURY TO PERSON OR PROPERTY RESULTING FROM ANY ACTIONS UNDERTAKEN PURSUANT TO THIS CONTRACT; OR THE FAILURE OF THE EQUIPMENT OR ANY PARTS OF THE EQUIPMENT. Constellation shall not be liable for repairs, replacements, alterations, additions, or adjustments performed by others, or any defects or damages caused by negligence, abuse, misuse, improper operation, vandalism, accident, unauthorized alteration, obsolescence, corrosion or erosion, building system design, flooding, lightning, low water pressure, or failure of Customer, its employees, agents, or contractors to properly operate or maintain the Equipment. The sole and exclusive remedy against Constellation or its agents, employees, officers or affiliates for any damages arising from Constellation’s Inspections shall be limited to the repair or replacement of the Equipment and shall not exceed the lesser of: (a) the direct actual damages incurred to the Equipment, or (b) three times the amount of money actually paid to Constellation under this Contract during the last twelve months. In no event shall Constellation have any liability for any damages relating to alleged mold remediation, leakage/spillage of fuels (propane or natural gas) from a storage tank, fuel pipe or any part of the system and/or equipment, or any consequential, special, incidental damages or exemplary damages. 
10. Governing Law; Class Action and Jury Trial Waiver. This Contract is governed by Texas law without respect to any conflicts of law provisions. TO THE EXTENT ALLOWED BY APPLICABLE LAW, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY OR TO INITIATE OR BECOME A PARTY TO ANY CLASS ACTION CLAIMS IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT.
11. Warranty. Constellation will perform the Inspections in a workmanlike manner. Any warranties provided by third parties with respect to any equipment or parts installed by Constellation will, to the extent they are transferable, be transferred by Constellation to Customer. EXCEPT AS EXPRESSLY PROVIDED IN THIS PARAGRAPH, CONSTELLATION MAKES NO WARRANTIES, GUARANTEES, OR REPRESENTATIONS CONCERNING THE INSPECTIONS, PARTS OR EQUIPMENT, AND EXPRESSLY DISCLAIMS ANY WARRANTY IMPLIED BY LAW, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM OR USAGE. 
12. Assignment. Customer may not assign or transfer this Contract without Constellation’s prior written consent. Constellation may assign the Contract to any other party including but not limited to another creditor. If Constellation does this, the assignee will have all Constellation’s rights and privileges under this Contract.
13. 13. Default; Default Remedies:Customer shall be in default if it, (a) fails to make any payment due under this Contract when billed for same, or (b) engages in fraud or misrepresentation, or (c) a petition either under the Federal bankruptcy laws or any local law providing similar relief is filed by or against Customer. Constellation may suspend service under this Contract until any amount due under this Contract is fully paid.

The parties agree to attempt in good faith to initially resolve any disputes hereunder expeditiously through informal dispute settlement procedures, if appropriate, including negotiations between senior management of the Parties. Both Parties agree that any claim or suit arising from the performance or nonperformance of this Contract, excluding Customer’s non-payment, whether such liability arises in contract, tort, negligence, breach of warranty, strict liability or otherwise, shall be brought within one (1) year from the date such claim arose. 

14. Costs and Attorney’s Fees After Default:Customer agrees to pay all court costs and other collection costs (including field collection costs and attorney fees) actually incurred relating to Customer’s default.
15. Permission for Electronic Withdrawal:By sending Constellation a check payment for Customer’s Account, Customer authorizes Constellation to make a one-time electronic funds transfer (EFT) from Customer’s bank account or to process the payment as a check transaction. When Constellation uses information from Customer’s check to make an EFT, funds may be withdrawn from Customer’s account as soon as the same day Constellation receives the check payment and Customer will not receive a check back from its financial institution. If Customer does not want the checks to be converted to an EFT, please call Customer Service.
16. AutoPay Terms and Conditions:If Customer elects to allow for automatic payments, Customer agrees to be billed and make payments to Constellation under this Contract. Customer authorizes Constellation to debit Customer’s checking account or to charge Customer’s credit card as may be allowed by applicable law.
17. Authorization:By entering into this Contract, Customer authorizes Constellation to share Customer information with Constellation’s affiliates. Customer may rescind this authorization by notifying Constellation in writing.
18. Miscellaneous:Any provision of this Contract which may be contrary to law shall not invalidate any of its other provisions. All rights and remedies hereunder are cumulative and not alternative. A waiver or consent given by Constellation on any one occasion shall be effective only in that instance and shall not be construed as a bar to or waiver of any right on any other occasion.
19. Texas Disclosures: CONSTELLATION PAYS PERSONS NOT EMPLOYED BY CONSTELLATION FOR THE SALE, ADVERTISING, INSPECTION, OR PROCESSING OF SERVICE CONTRACTS UNDER TEXAS OCCUPATIONS CODE SECTION 1303.304

If you have a complaint with respect to this Contract you may contact us via email at customerservice@constellationhome.com or by calling us at 877-427-2003. UNRESOLVED COMPLAINTS AND QUESTIONS ARISING UNDER THIS CONTRACT MAY BE ADDRESSED TO THE TEXAS DEPARTMENT OF LICENSING AND REGULATION AT 920 COLORADO ST., AUSTIN, TX 78701, PHONE 512-463-6599.

The obligations of Constellation as the provider under this service contract are backed by the full faith and credit of the provider.

James Proffitt, 43217, licensed by Texas State board of Plumbing Examiners, 929 East 41st, P.O. Box 4200, Austin, TX 78765-4200, (800) 845-6584.

TACLA #00107498R TECL #343159 Plumbing #43217 TSCP #684