SERVICE PLAN AGREEMENT TERMS & CONDITIONS
This Service Plan Agreement (this
“Agreement”) sets forth the terms and conditions under which we will provide
you the services described below. Please
read these Terms and Conditions carefully.
Coverage may be limited and certain exclusions apply.
1. DEFINITIONS
“Plan” means the plan indicated on the
Essential HomeCare Enrollment Form.
“You” and “your” means the resident or
owner of the Eligible Facility covered by the Plan. “We”, “us” and “our” means Direct Energy US Home Services, Inc.
“Agreement”
means the agreement made up of these Terms and Conditions and the Enrollment
Form executed by you.
“Authorized
Repair Technician” means the repair person we dispatch in response to your
call.
“Eligible Facility” means a single
family residence or small business operating with a five ton heating or air
conditioning unit or smaller, located within our service area. If the Eligible
Facility is a house, townhouse, condominium, apartment unit, modular home or a
manufactured home, it must be anchored to a permanent foundation and not moved
for the duration of the Plan and applies only to the equipment serving the
individual unit, not
the common areas or shared systems in
multiple unit dwellings
“Effective Date” means the date stipulated
on the Essential HomeCare Enrollment Form.
“OEM” means the original equipment
manufacturer.
2. SERVICES
The Plan covers the cost for the specific
diagnosis and repair work itemized herein to repair equipment rendered
inoperable due to a mechanical failure caused by routine wear and tear subject to
the applicable limitations and exclusions (the “Services”). The decisions to repair or replace a part will
be made by us, in our reasonable discretion.
The Plan does not provide any Service other than as specified herein.
3. ELIGIBILITY
The heating and air conditioning equipment
eligible for coverage under the Plan are natural gas or electric furnaces, air
handlers, heat pumps, electric powered central air conditioners, package units,
and mini-split systems. The equipment must
be located in Eligible Facilities and be: • located within the confines of the
permanent foundation of the Eligible Facility • properly installed and in
proper working order on the Effective Date • safely and easily accessible for
diagnosis and repair by the Authorized Repair Technician, and the equipment and
access point must be in a reasonably sanitary condition, and • located in a
safe environment for the Authorized Repair Technician
4. TERM AND RENEWAL
The term of this Agreement shall commence on the
Effective Date and continue for one year (the “Initial Term”). After the Initial Term, this Agreement will
automatically renew in additional one-year increments unless terminated in writing
no later than 10 days after your anniversary date to the address set forth in
“How to Contact Us” or as otherwise provided in this Agreement. Customers residing in states that do not
allow automatic renewal of Services shall receive a written renewal notice.
5. CHANGES
TO TERMS OF SERVICE
We will provide
you written notification of any material changes to this Agreement 45 days in
advance of the implementation of said changes. Notice will not be provided to you when
changes are favorable to you or when changes are mandated by a regulatory
agency. After notice of a material
change, you may terminate this Agreement by providing written notice within the
45-day period prior to the effective date of the change. If you do not respond prior to the expiration
of the 45-day period, the change will be deemed accepted by you. If we discontinue
the Plan, our liability will be limited to completing any repairs or parts
replacements underway at the time the Plan is discontinued.
6. PAYMENTS
You agree to make payment either
monthly or annually, plus any applicable taxes, as stated on the Enrollment
Form. If you select annual payments,
payment will be drafted from a preauthorized credit card or checking account on
your anniversary date each year. Monthly
payments will be drafted from a preauthorized credit card or checking account
on the Effective Date in each following month.
You will not receive a monthly or annual bill. If you fail to make a payment when due for
any reason we may terminate your Plan as set forth below. If your payments are
not current, we may refuse to provide service under the Plan. Except as otherwise specifically stated in this
Agreement, your payments are non-refundable.
7. TERMINATION
By Us: We may at any time immediately terminate the
Plan for non-payment, fraud or material misrepresentation without prior written
notice. We may terminate the Plan any
time by providing you with 30 days written notice. By You: In addition to your
rights of termination provided in Section 4, you may terminate this Agreement
by providing us with 30 days prior written notice to the address set forth in
“How To Contact Us” and you shall be obligated to pay us an early termination
charge of $150.00. You agree that the early termination charge is not a penalty
but a reasonable estimate of the damages to us.
8. BUYER’S RIGHT TO CANCEL
You may cancel this Agreement without
payment or liability as provided in more detail on the Enrollment Form. You may also cancel this Agreement without further liability
if you move outside of our service area.
You agree to provide us with a minimum of 15 days advance written notice
of your move date.
9. UNAVAILABLE
PARTS OR NON-REPAIRABLE EQUIPMENT
Replacement of the complete heating or
cooling unit is not covered by the Plan.
We will attempt to obtain a replacement part or an appropriate substitute
as quickly as reasonably possible to repair your equipment. Expedited shipping of parts is available upon
your request and at your sole expense.
You understand that limited availability of certain parts may result in delays
from time to time.
If we cannot repair the equipment because
a part is obsolete, no longer available or we cannot obtain it at a
commercially reasonable cost, we will not be liable to make the replacement and
you may terminate the Agreement with no further obligation. If we have not provided Services to you in
the existing one year term, we will refund the payments you have made during that
one year period. If we have provided you
service, you will receive no refund and may terminate with no further
obligation. At your request, we will
provide a quote for the replacement and installation of new equipment at a
discounted rate.
10. WARRANTY
AND LIABILITY
Problems
cannot always be diagnosed and repaired on the first service visit. We are not
liable for losses or damages resulting from misdiagnosis or delays in
completing diagnosis or repairs. If the Plan has been cancelled or terminated, our
obligation will continue, with respect to labor and defective parts, for 12
Months after the date of the original repair. We
are
not
liable
for
indirect, consequential or economic damages or for loss or damages to
any person
or
property arising from the loss of use or the inability to use the equipment to the extent
such may be
disclaimed
by law.
All parts removed in connection with the
Services become our property, and you agree to assign to us any assignable
warranties available from any manufacturer or supplier of such removed part.
11. PERSONAL
INFORMATION
We collect and use personal information
about you in order to establish and manage our business relationship with you.
We share such information about you with our Authorized Repair Technicians in order
to provide service under your Plan. You give us your consent to disclose
information about you for the following purposes: • Billing and/or supplying
services to you under the Agreement • Law enforcement • Complying with a legal
requirement, and • Processing of past due accounts of yours which have been
passed to a debt collection agency.
In order to maintain privacy of
account and other proprietary customer information, we may request you provide us
with certain information to verify your identity. Unless you tell us otherwise, you also give
us your consent to use and disclose your personal information to make you aware
of our other products and services that may be of interest to you.
12. Heating
and Air Conditioning COVERAGE
Following a thorough diagnosis, the
Authorized Repair Technician shall make the determination whether the Service is
covered by the Plan. The Plan covers all
parts within the heating and cooling unit casing as well as the thermostat,
filter drier and txv valve, subject to the exclusions set forth herein.
• Compressor, Condenser Coil &
Evaporator Coil -- the Plan covers parts and labor only if currently covered
under the OEM warranty • Heat Exchanger -- the Plan covers parts and labor only
if currently covered by the OEM warranty and is less than 12 years old •
Thermostat -- we will replace with a make/model of our choice similar to your
existing thermostat.
13. Heating
and Air Conditioning EXCLUSIONS
Equipment with existing design faults
or that has been abused, tampered with or
damaged due to subsidence, explosion, flood,
storm, acts of war or other insurable risks or accidental or deliberate damage
from vandalism or theft is not covered under the Plan. The Plan does not cover boilers, conversion
burners and equipment using conversion burners, ductless wall units, equipment sized
over 5 tons, geothermal units, high velocity units, natural gas powered air
conditioners, oil or steam units and water cooled units. No Services will be provided if the Authorized
Repair Technician is prevented from entering an Eligible Facility due to the
presence of animals, insects, unsafe conditions, or if the equipment is not
easily accessible, or is located outside of the permanent foundation of the
Eligible Facility (except for heat pumps & central air conditioning units).
Equipment parts not covered under the Plan include, but may not be limited to: •
Air and Fuel filters • Back flow check valves • Batteries • Condensate pumps •
Dehumidifiers • Disconnects • Drain lines • Ductwork and Grills • Energy Recovery
Ventilation • External metal or plastic venting and all associated parts • External
drain tubing and all associated parts • External line/low voltage wiring • Firebox/combustion
chamber • Flushing the heat exchanger • Fuses and Circuit Breakers • Heat
Recovery Units • Heat Recovery Ventilation • Humidifiers • Humidistat • Low and
high water cut-off valves • Nitrogen isolation tests to locate a refrigerant
leak • Surge Protection Devices • UV sterilization systems • Zone
thermostats/controls and energy management controls • Zoning and air cleaners,
and any parts added on to your equipment to accommodate ancillary equipment.
The Plan will not cover:
• Equipment or components not
specifically listed in this Agreement • The cost for diagnosis, parts and/or
labor if the system problem is due to an improper thermostat setting, an extinguished
pilot light, blown fuse, or if the equipment has been turned off • Loss or
damage to your personal property caused by an equipment failure, or the failure
of any electrical, plumbing or drain system (e.g., damage to furniture caused
by water leaks) • Condenser coil damage due to external sources • Service to equipment
caused by the inadequacy or lack of capacity of the system, improper
installation, a defect that was previously repaired, the design, or any
modification made to the system unless performed by us under this Agreement • We
previously advised you to perform repairs to ensure your equipment is in good
working order • Electronic, computerized or energy management systems or devices,
such as “Smart House” • Service necessitated by any loss or damage resulting
from any cause other than normal usage • Damage to the equipment due to
chemical or sedimentary build-up, misuse or abuse, unauthorized repair by
others, failure to clean or maintain the equipment, rust, corrosion, insect
infestation, mold, mildew or bacterial manifestations, missing parts, structural
change, fire, freezing, electrical failure or surge, water damage, lightning,
mud, earthquake, soil movement, windstorms, hail, theft, negligence,
intentional acts, riot, accidents, pet or pest damage, acts of God, or failure
due to excessive water pressure or any other perils are not considered loss or
damage by normal use • Upgrades or the cost of construction, carpentry, or
other modifications necessary to access existing equipment or install new equipment
• The replacement or restoration of wall coverings, drywall, plaster,
wallpaper, paint, floor coverings, tile, cabinetry, counter tops, landscaping
or other similar items in the home or the repair of any structural or cosmetic
defects as a result of the Services
• Preventative maintenance, unless covered
by the Essential HomeCare300 or Essential HomeCare400 Plan,and • Consumable items, including but not limited to
filters and fuses.
All service work under the Plan,
including parts and labor must be provided by an Authorized Repair Technician.
We will not reimburse you for service performed by someone other than us or one
of our Authorized Repair Technicians.
14. Annual or Preventative Maintenance
All Essential HomeCare plan members can
upgrade to the Essential HomeCare300 plan which includes an annual
preventative maintenance check and safety inspection of your heating and cooling
units. Customers may also upgrade to the
Essential HomeCare400 plan which includes semi-annual preventative maintenance
and safety inspections. We will contact you when it is time to schedule your
maintenance and safety inspection, but it is your responsibility to schedule
the appointment. Inspections must be
scheduled during the existing one year term.
Unused inspections will be lost upon the expiration of this Agreement.
15. BUILDING
AND ZONING CODE REQUIREMENTS OR VIOLATIONS
If current building or other code
violations are discovered by the Authorized Repair Technician before or during
the performance of the Services, we shall stop work until you complete the necessary
corrective work at your sole expense. If
a permit is required to perform the Services, the cost of such permit will be
charged to you. We will not perform the
Services if the appropriate permits cannot be obtained. Code upgrades to bring system up to code
shall be at your expense and are not covered under the Plan.
16. HAZARDOUS
MATERIALS:
The Services
do not include the identification, detection, abatement, encapsulation or
removal of asbestos, radon gas, mold or products or material containing
asbestos, radon gas, mold or other hazardous substances. If any hazardous
materials are encountered in the course of performing the Services, the Authorized
Repair Technician has no obligation to continue the work until such products or
materials are abated, encapsulated or removed, or it is determined that no
hazard exists (as the case may require).
We shall have no obligation to arrange for and will have no liability
for the removal of, failure to detect or contamination as a result of its
failure to detect any asbestos, radon gas, mold or other hazardous products or
materials. To protect against the potential hazards of lead-based paint, the
U.S. Environmental Protection Agency (EPA) has implemented certain renovation
requirements that may apply if a contractor disrupts interior painted surfaces
in excess of six square feet or exterior painted surfaces over 20 square
feet. If the services require us to cut
into your walls in order to access pipes and plumbing, we will be required to
comply with the EPA regulations, which may require an extension of time to
complete the work.
17. MISCELLANEOUS
a. This
Agreement shall be governed by and construed and enforced in accordance with
the laws of the State of Texas
without regard to the conflict of laws provisions thereof.
b. If a dispute arises out of this Agreement
and cannot be settled through negotiations, the parties agree to try in good
faith to settle the dispute by mediation before resorting to litigation. The
fees for the mediation will be borne equally by the parties.
c. These
Terms and Conditions, together with the signed Enrollment Form, make up the
entire agreement between you and us. There are no other written or verbal
representations, rights, obligations or inducements (including those of sales
agents) that are binding on us.
d. Disputes or complaints about the Services
provided by us or this Agreement should be directed to 1-800-419-6181.
e. We
may assign this Agreement, in whole or part, or any of our rights and
obligations hereunder, or pledge the Agreement or proceeds thereunder as security
for any obligation, without your consent, to the fullest extent allowed by law.
Upon such assignment, you agree that we shall have no further obligation under
this Agreement. This Agreement is not
assignable by you without our prior written consent.
f. Any
action we take or fail to take does not mean that we give up any of our rights
under this Agreement.
g. We
will make commercially reasonable efforts to fulfill our obligations under this
Agreement. Certain causes and events
that are out of our reasonable control ("Force Majeure Event(s)") may
result in our inability to perform under this Agreement. If we are unable to perform our obligations,
in whole or in part, due to a Force Majeure Event, then our obligations shall
be suspended to the extent made necessary by such Force Majeure Event, and in
no event shall we be liable to you for damages caused by any Force Majeure
Event. Force Majeure Events include, but
are not limited to, acts of God, fire, war, flood, earthquake, acts of
terrorism, acts of any governmental authority, accidents, strikes, labor
troubles, shortages in supply, changes in laws, rules, or regulations of any
governmental authority, or any other cause beyond our reasonable control.
h. If
you smell gas or suspect there is a gas leak, leave the premises immediately
and call your gas company from outside.
18. HOW
TO CONTACT US
By phone: toll free 1-800-419-6181
By mail: Direct
Energy US Home Services 5150
Elmwood Ave, Indianapolis, IN 46203 Attn: HomeCare
Administrator
Our website: www.thermostat.com/homecare